author: Mr. JUSTICE SIMKINS

text:
    Illinois Power Company, Plaintiff-Appellee, v. Champaign Asphalt Co., Defendant-Appellant.
    (No. 12208;
    Fourth District
    April 25, 1974.
    Busch, Harrington & Porter, of Champaign, for appellant.
    Hatch, Corazza, Baker & Jensen, of Champaign (Harold A. Baker, of counsel), for appellee.
   Mr. JUSTICE SIMKINS

deivered the opinion of the court:

This is an appeal from a judgment for $7923.47 in favor of the plaintiff power company for electricity supplied to the defendant over a 3-year period in excess of the amount billed and paid for as measured and recorded by plaintiff’s defective transformer and metering equipment.

The plaintiff, Illinois Power Company, entered into a contract in July 1959 to supply defendant, Champaign Asphalt Company, with electricity. On October 27, 1969, the plaintiff filed a complaint alleging that from April 1964 to May 1967 the plaintiff supplied electricity and the defendant paid for the amount billed as registered by the plaintiff’s meter. The complaint further alleged that a routine review of accounts by the plaintiff indicated a likely error in the defendant’s account in that there was a sudden decrease of approximately 50% in the amount billed to the defendant in April 1964, continuing up to the time of the review, and that on May 25, 26 and 27, 1967, tests were performed which indicated that the meter at the defendant’s premises was recording only 50% of the current actually being used. The complaint therefore concluded that from April 1964 to May 1967 the defendant had only been billed for one-half of the electricity used and that the defendant would owe $7923.47 for the used, but unpaid-for, electricity.

The defendant filed a motion to dismiss on the grounds that plaintiff’s complaint failed to state a cause of action because it did not state that the plaintiff had complied with general order 161 of the Illinois Commerce Commission nor affirmatively state the steps taken to comply with that general order. It further alleged that on its face it was clear that the basis of the claim arose more than 1 year after such electricity was furnished, and, since under section 76 of the Public Utilities Act (Ill. Rev. Stat, ch. 111⅔, par. 76), the defendant could not contest any rate charge after 1 year, equal protection would require the plaintiff’s right also to be barred. After its motion to dismiss was denied, defendant filed an answer to the complaint admitting the relationship between the parties and the using and paying for electricity billed between April 1964 and May 1967, but denied that electricity had been used in addition to that billed and paid for. The defendant denied that plaintiff had performed all the terms of the contract and alleged that plaintiff had failed to test the meter as required in Rules 12 and 13 of General Order 161 of the Illinois Commerce Commission. The answer contended that the plaintiff would be barred by Rule 16(c) of the General Order because it allowed the inaccurate meter to remain in service and relied upon it for 3 years, sending bills each month which were promptly paid, and finally, asserted that the provision of Rule 16(b) that where a non-registering meter has been read while not working the utility is limited to billing only for the estimated consumption not to exceed twice the period of the regular interval between readings would preclude plaintiff from recovering for more than that period, if any recovery at all were proper.

A bench trial was held on August 4, 1970, at which the plaintiff produced testimony concerning the review of accounts in May 1967 which disclosed that the defendant’s usage of electricity had dropped by approximately one-half in April 1964 and introduced records of the monthly meter readings and bills of the defendant’s account from 1959 through 1967 showing the drop in usage during the time in question as compared to the corresponding months in years prior to 1964. An instrumentation engineer employed by the plaintiff described the metering devices used at the defendant’s premises and testified to the periodic tests, some of which were performed annually, and further testified to tests made on all the metering devices before installation. It was brought out that a large commercial or industrial user like the defendant does not utilize a simple watt hour meter as commonly used in private homes, but rather a demand type meter is used because it is impractical to have a meter large enough to actually measure all the electricity passing through it. The demand type meter diverts a particular constant proportion of the total current and measures it, thus requiring two steps, the transformer which separates the relatively small proportion of the total current, and the regular watt hour meter which measures and records it. Plaintiffs witnesses testified that the watt hour meter was tested annually and was apparently functioning correctly in past years and at the time of the test in May 1967. However, those more extensive tests made after the discovery of a probable under reading showed that the instrument transformer was malfunctioning. A parallel installation test showed a constant load pattern which would indicate the transformer was damaged, and upon further inspection the tank and transformer portion of the metering device appeared to have been damaged, in the opinion of the engineer, by lightning. The engineer further testified that the watt hour meter would not work without the instrument transformer, but that there could be a partial failure which would result in an under-registration by the watt hour meter. It was brought out that the watt hour meter was tested annually, but the instrument transformer had not been tested since its installation because, although there were tests that could be performed, they would only be accurate at high load and the plaintiff power company did not make tests during times of defendant’s high usage because it was considered to be dangerous due to the location of the metering equipment.

The defendant’s evidence consisted of testimony from the manager of another power company who testified it was their practice to review the accounts of large commercial users three or four times a year. The defendant also produced testimony to the effect that there are three lights on demand transformers which would indicate a malfunction by one or more of them not being lighted. In addition the defendant elicited testimony to the effect that it was possible to test the instrument transformer as well as the watt hour meter periodically while installed and in operation.

On January 26, 1971, the court filed an order which summarized the evidence indicating that the fact of the under-registration to the extent of 50% during the 37-month period was established, but “The court finds from all the evidence introduced and from all the facts and circumstances in this case that the plaintiff utility was at fault in not making a more thorough test of the meter, transformer, and all of the measuring equipment between the period of May 1964 and May 1967, and that it was further at fault and negligent in not reviewing the customer accounts and determining that it was metering inaccurately the use of electricity subsequent to April 1964 prior to doing so in May 1967.” However, language in the next paragraph where the court found that large accounts should be reviewed more often than once in 3 years, there being evidence in the record that another company reviews their large accounts as often as three or four times a year, indicates that the primary reason for finding the plaintiff “at fault” was the lack of diligence in reviewing accounts and the fact that the plaintiff relied on its defective meter readings for 37 months, rather than a failure to comply with the technical testing requirements. In entering judgment for the defendant the court said “Accordingly, from such findings and from all the evidence in the case, the court finds that the plaintiff is at fault and is not free from negligence and should not be allowed to recover.”

The plaintiff filed a post trial motion alleging that the court erred in finding the plaintiff “at fault” under General Order 161 by failing to conduct “more thorough tests” and in not conducting more frequent review of customer accounts. Plaintiff contended that the court’s interpretation of General Order No. 161 was in conflict with section 37 of the Public Utilities Act prohibiting public utilities from discriminating in rates by any means, and also sections 53, 54, and 55 of the Public Utilities Act, which authorize the Commerce Commission to formulate rules such as General Order No. 161. Plaintiff further contended that the court was in error in injecting principles of common law into an action arising under contract and by going outside the bounds of General Order No. 161 and the Public Utilities Act to define “at fault”. After hearing arguments on the post trial motion, the trial court vacated the prior judgment in favor of the defendant and entered judgment in the amount of $7923.47 plus costs in favor of the plaintiff. In a memorandum opinion the trial court said that it had reviewed the evidence and found that because of a defect in the transformer installed at the defendant’s place of business by the plaintiff, the defendant was charged for and paid for one-half the electricity actually used between April 1964 and May 1967. However, the court now found that the tests were made by the plaintiff as provided in General Order No. 161 and that the court had erred previously in extending the substantive provisions of section 54 of the Illinois Public Utilities Act and the provisions of Rule No. 161.

Finally the court extensively analyzed sections 37, 38, and 39 of the Public Utilities Act, concluding that they require a utility to collect the full amount established in their schedules and dictate that a utility may not, even by its own negligence, discriminate in rates between users.

The finding by the trial court, amplified in its second order, as to the existence of the meter defect, the 50% under-registration, and the period for which under-billing and under-payment resulted is only peripherally raised on appeal. The primary issue is whether or not the plaintiff was negligent or at fault, and if so, whether it should preclude recovery; or more specifically, the meaning of the term “not being at fault” in Rule 16(c) of General Order No. 161, and whether sections 37, 38, and 39 of the Public Utilities Act would require recovery regardless, of the utility’s conduct. In addition, defendant argues that its equal protection of law would be violated by allowing plaintiff to recover for electricity consumed more than one year earlier while section 76 of the Public Utilities Act would limit the consumer who wished to contest the rate charged to that length of time.

Referring to Rule 16 of General Order No. 161 of the Illinois Commerce Commission, (a) provides that when by tests a watt hour meter is determined to have an average error of more than 4%, an adjustment of the consumers’ accounts shall be made in the case of an over-registration, and may be made for under-registration. The provision of Rule 16 of particular interest in this case is (c) pertaining to under-registration, which provides: “All such charges for under-registration shall be conditional upon the utility not being at fault for allowing the inaccurate meter to remain in service. The utility shall in no case render a bill for under-registration where the requirements of Rules 9(c), 12, 13 and 14 have not been complied with.” Rule 9 referred to above pertains to customer meter test loads, and the other rules provide extensive technical standards for initial tests, periodic tests, meter accuracy requirements, complete with procedures to be followed and permissible tolerances. The basic issue then is the scope of the term “at fault”. Plaintiff argues that since the other rules in General Order No. 161 are specific and clear, fault must be limited to the testing of the meters, and since plaintiff did test the complete meter system before installation and the watt hour meter periodically thereafter, the rule is satisfied. Defendant argues that the words “at fault” are much broader than that, and where the meter was exclusively in the control of the plaintiff and relied upon by the plaintiff for such an extended period of time, when such error could have been discovered by reviewing the account or by more thorough testing of all the equipment, that plaintiff was “at fault” and buttresses that argument by the provision in Rule 16(c) that in case a meter does not register at all and is read while so inoperative, the utility cannot recover more than the estimated usage for twice the regular period of the reading.

The court’s first order, in favor of the defendant, made the general finding that the plaintiff utility was at fault in not making a more thorough test of the meter, transformer, and all the measuring equipment during the period in question, but seemed to base the finding of fault primarily on the conclusion that the plaintiff was negligent in not reviewing the accounts more often and relying on billing and collecting payment for the erroneous amount for an extended period of time rather than a technical engineering shortcoming. The second order, in favor of the plaintiff, here appealed from, in its finding of fact stated that a defective transformer caused the erroneous meter readings and at a later point held that the plaintiff had satisfied the requirements of General Order No. 161 as to testing of the meters. Those findings are not inconsistent with the plaintiff's theory that the meters which are required to be tested by the rules were tested and were accurate, but that the transformer, which was not required to be tested periodically while in use, caused the defective reading by diverting only one-half of the proper portion of the flow to the meters to be measured.

The argument by the defendant that the utility should not recover where under-billing was the result of defective equipment exclusively under the utility’s control which was allowed to remain in operation over 3 years, compounded by the failure of the plaintiff to discover the mistake by reviewing the accounts, is quite appealing and rational, but requires extending the term “at fault” to include general negligence in failing to discover the malfunction rather than the technical testing requirements set forth in General Order No. 161. Section 54 of the Public Utilities Act entitled Standards of Service — Examinations and Tests, provides that:

“The Commission shall have power to ascertain, determine and fix for each kind of public utility suitable and convenient standard commercial units of service, product or commodity, * * * to ascertain, determine and fix adequate and serviceable standards for the measurements of quantity, quality, pressure, initial voltage, * * * and to prescribe reasonable regulations for examining, measuring and testing such service, product or commodity, and to establish reasonable rules, regulations, specifications and standards to secure the accuracy of all meters and appliances for examining, measuring or testing such service, product or commodity.” (Ill. Rev. Stat. 1971, ch. 111⅔, par. 54)

The thrust of the language authorizing the Commerce Commission to formulate its General Order No. 161 is technical, and in this context the term “at fault” in Rule 16(c) would seem to be confined to a failure to properly perform the required tests or to keep the meters within the required tolerances. It is true that the instrument transformer, which apparently caused the erroneous readings here, was a part of the metering equipment, owned, installed, and relied upon by the plaintiff, but whether because transformers seldom only partially fail, or no reliable tests are practical, or testing is hazardous, the rules do not require periodic tests of the transformer as frequently as the volt meters which the court found plaintiff had tested as required.

Perhaps being justifiably confused by the technical language of the rules on testing and the expert testimony adduced on that subject, the trial court in both orders very briefly addressed itself to compliance with those requirements (in the first order saying generally it found plaintiff at fault in not making a more thorough test of the meters, and in the second order finding plaintiff did comply with General Order No. 161) and in both orders emphasized other reasons for the results (in the first order finding the plaintiff generally negligent in failing to review the accounts more often and relying on the defective meter for so long, and in the second order finding sections 37, 38, and 39 of the Utilities Act require the utilities to recover in order to avoid rate discrimination). However, we believe the defendant’s reliance on Rule 16(c) is misplaced. It is true that it refers to recovery being conditioned upon the utility not being at fault for allowing the inaccurate meter to remain in service, and the sentence immediately following that provision to the effect that in no case shall a utility recover if it fails to comply with certain other rules of the general order could be construed to mean that “at fault” includes a more general negligence for failure to use due care in maintaining its meters and in discovering error by whatever means, including reviewing accounts regularly. However, the remainder of Rule 16 refers to inaccurate meters, and the other rules of General Order No. 161 provide technical standards for the installation and periodic testing of meters nowhere requiring accounts to be reviewed or other standards to insure correct billing. In light of tire statutory authorization of paragraph 54 specifically referring to establishing rules and regulations to secure the accuracy of meters and for examining, measuring or testing such service, it seems that “at fault” in Rule 16(c) must be limited to the scope of General Order No. 161 on the testing and tolerances for meters.

The defendant offers three reasons why the plaintiffs recovery should be limited in the event that any recovery at all is proper. First, Rule 16(c) provides that in the event of under-registration “* * * It shall, unless the contrary can be shown, be assumed that such under-registration has not existed for more than 6 months prior to the date of its discovery.” In the instant case the 6-month presumption was rebutted plaintiff having shown a sharp decline beginning in April 1964 and continuing thereafter. Rule 16(c) also provides that in case of a non-registering meter which has been read during the period of non-registration the bill shall be for an estimated use of no more than twice the regular interval between readings, and the defendant contends that the recovery should be limited to 2 months in this case. Clearly if the meter is completely inoperative the utility would have knowledge upon the second reading if not the first, so this absolute time limit is quite rational. However, in the instant case the meter did register significant quantities of electricity which were billed and paid for throughout the period — the meter never being “non-registering”.

Finally, defendant contends that because section 76 of the Public Utilities Act would limit the consumer to 1 year from the time of the furnishing of electricity by a utility to contest the rate charge, equal protection requires that plaintiff be limited to a like period. (Ill. Rev. Stat. 1971, ch. 111⅔, par. 76.) However, section 76 refers to rate charges which are distinguishable from erroneous volume measures, although of course one way to discriminate in rate would be to purposely use a meter not correctly calibrated or to agree to charge only for certain volume. Section 76, which provides the consumer with a special procedure before the Commerce Commission rather than the courts, is concerned with rate discrimination or excessiveness rather than a situation where there is an error in measuring the quantity of the commodity or service, or in billing for the same. If the utility was here seeking to recover payment for 37 months during which it had erroneously charged defendant the wrong rate, defendant’s equal protection argument would be well taken, but the basis of this action is the mistake as to quantity or volume supplied and used.

As noted before, the trial court’s order in favor of the plaintiff here appealed from, while finding that the plaintiff had performed the test required by General Order No. 161 and that the court erred in its previous order by extending fault which would preclude recovery to a failure to review accounts more frequently and to conduct more thorough tests, primarily relied upon and extensively analyzed section 37 of the Public Utilities Act (No public utility shall receive less or different compensation for any product or service rendered than the rates applicable as specified in its schedule in effect at that time); section 38 (No public utility shall make or grant any preference or advantage to any consumer with respect to rates or other charges); and section 39 (No public utility shall directly or indirectly by any means whatsoever suffer or permit any user to obtain any service commodity or product at less than the rate established by the schedules filed and in effect at the time). The trial court analyzed a number of cases — primarily involving railroads in Illinois, but gas and electric utilities in other jurisdictions — where it has been held that the utilities have a duty and a right to recover for all of the goods or services furnished, no matter whether incorrect bills were submitted for any reason, and that they are not estopped by even their own negligence from collecting the entire amount due under their tariff. Since the instant case does not involve negligent under-billing nor intentional rate discrimination, and we have concluded that there are other grounds for affirming the judgment below, we need not decide the precise relationship between the above statutory provisions and General Order No. 161, Rule 16. However, we are not persuaded that the provisions prohibiting rate discrimination by any means would always require the public utility to recover regardless of their conduct, nor that the conditions to recovery in Rule 16(c) would never preclude recovery.

In the instant case the trial court found that the under-registration was caused by a defective transformer, but that the plaintiff had performed tests required by General Order No. 161. As to proof of the deficiency and the period of time, the results of the tests in May 1967 indicating that the meter was only registering 50% of the electricity flow, corroborated by the sudden drop of approximately the same proportion in April 1964, is adequate to establish both the amount of error and its duration. Damages may be established on the basis of reasonable probability. (Schatz v. Abbott Laboratories, Inc., 51 Ill.2d 143, 281 N.E.2d 323.) If the amount the monthly bill decreased was so obvious as to constitute negligence on the part of the plaintiff as the defendant argues, it must also have put the defendant on notice that it was using much more electricity than it was being billed for. In addition the defendant presented no evidence that its methods or level of operations changed as would be consistent with the amount recorded dropping by 50%.

Affirmed.

SMITH, P. J., and KUNCE, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DEMPSEY

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Goodwin, Junior, Defendant-Appellant.
    (No. 58853;
    First District (3rd Division)
    April 4, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas Lipscomb, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Michael J. Polelle, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

James Goodwin was charged with aggravated battery causing great bodily harm and with aggravated battery while using a deadly weapon. He waived a jury trial, was found guilty of both offenses and was sentenced to concurrent terms of 3 to 10 and 3 to 5 years in the penitentiary.

His contentions are that he was not proved guilty beyond a reasonable doubt because the testimony of the complaining witness lacked credibility, and that he was improperly sentenced because both crimes arose from the same conduct.

The complainant testified that as she was walking home from a friend’s house at approximately 1 A.M., she saw a man standing in a playground across the street from her. The man, later identified as James Goodwin, ran toward her with a knife in his hand. He slashed at her and cut her on the neck. She begged him not to rob her and he replied, “I don’t want your money, I want your body, want your life.” She told him to leave her alone, but he dragged her into a nearby abandoned building and up the stairs to a second-floor apartment. On the way she dropped her purse, earrings and necklace. She wrestled with him and screamed for help through the broken windows of the room. As they struggled, she was cut' on her neck, sides and fingers. She grabbed the knife and succeeded in breaking off part of the blade. She thought the struggle lasted for about 2 hours. Then a flashlight shone into the room and policemen entered. She said that they were lying on the floor and that Goodwin was upon her and about to cut her when the police entered. When he saw the police, he jumped to his feet.

The arresting officer testified that he and his partner entered the abandoned building after receiving a call to check on a disturbance. They found a purse, earrings and a necklace on the floor at the first landing. At the second-floor apartment they saw Goodwin leaning over the. complainant with a knife in his hand. The policemen told him to turn around and put his hands against the wall, but he started toward them. He then stopped and the police disarmed him of his knife. He had blood on his shirt and hands. The victim, covered with blood and crying, ran from the room.

Goodwin testified that he was walking from his apartment to a barbecue place when he heard a woman screaming for help. He entered the building where the screams came from, went to the second-floor apartment and found the complainant lying on the floor. He asked her what was wrong and she told him that she had been cut. At that moment, the light from the policeman’s flashlight shone into the room.

The defense contends that the complainant’s testimony contained its own impeachment and was so improbable that it should have been disregarded by the court. It points out that she contradicted herself when she said that the defendant was both lying beside her and lying across her at the time the police entered the room, and when she said that no one ran from the room although she did so herself; she testified that the attack took 2 hours, but she said she was accosted about 1 o’clock and the police arrived shortly after that hour, and that it was highly improbable if not impossible for her to have carried on such strenuous activity with the defendant for 2 hours and sustain only five stab wounds.

The inconsistencies in the complainant’s testimony were minor and explainable. She was straggling with the defendant when the police arrived and whether he was lying beside her or upon her was not a material contradiction and neither was her answer to the question about whether anyone ran out of the room, which she could have interpreted as referring to what happened prior to the time the police came. She was a very frightened woman during the time that she and the defendant were fighting with each other and she could easily have felt that the attack lasted longer than it did. The complainant and the defendant were approximately the same size and weight so her ability to fight him off was neither impossible nor improbable. Her doing so was a tribute not only to her strength but to her determination and courage.

The testimony of a witness may contain its own impeachment and may be so improbable as to be disregarded. (People v. Poltrock (1974), 18 Ill.App.3d 847, N.E.2d; People v. Barfield (1969), 113 Ill.App. 2d 390, 251 N.E.2d 923.) Minor inconsistencies, however, do not warrant disbelieving the entire testimony. The trial judge accepted the testimony of the complaining witness and we find no reason to disagree with his appraisal of her credibility.

A defendant can be sentenced for more than one offense only when the offenses result from separable conduct. Conduct is defined as “an act or series of acts and the accompanying mental state.” Ill. Rev. Stat. 1971, ch. 38, par. 2 — 4.

The defense contends that the acts constituting the infliction of great bodily harm were not separable from the acts constituting the use of a deadly weapon; that the actions of the defendant throughout the offense were directed to causing great bodily harm. The State argues that the offense of aggravated battery while using a deadly weapon was committed and completed when the defendant accosted the victim on the street and superficially cut her with the knife, and that the offense of aggravated battery with the intent to cause great bodily harm was committed when the defendant puUed her into the abandoned building and inflicted the more serious knife wounds upon her.

In support of its argument, the State cites the case of People v. Thompson (1972), 3 Ill.App.3d 684, 278 N.E.2d 1, where consecutive acts of the. defendant were held to be separate offenses. In Thompson, the defendant attempted to rob a store. The proprietress of the store frustrated the robbery by escaping into another room. The defendant shot at her as she ran out the back door of the store. This court held that the shooting of the proprietress was subsequent to the intended robbery and was not part of that crime.

The testimony of the complainant does not support the State’s theory. She testified that when the defendant first approached her he said he wanted her body and her life. He immediately began cutting her with his knife. The attack was continuous and its character did not change at any time. It did not end on the street, but it continued as the defendant pulled the protesting victim to the second floor of the abandoned building and it continued in the vacant apartment. The fact that he dragged the victim during the attack and would have completed the offense in a different place if the police had not intervened did not make his conduct separable.

The judgment of conviction will be affirmed, but the sentence for the lesser offense of aggravated battery while using a deadly weapon will be vacated.

Affirmed as modified.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George L. Decker, Defendant-Appellant.
    (No. 56613;
    First District (3rd Division)
    April 4, 1974.

      Rehearing denied May 2, 1974.

      James Edwyn Daniels and Jerome Rotenberg, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Elmer C. Kissane, Robin Auld, and Thomas McDonough, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendant was indicted for three counts of theft, and a trial was had before a jury. His motion for a directed verdict of not guilty as to Counts I and II was granted at the close of the State’s case. The jury returned a verdict of guilty on Count III, in which defendant was charged with theft by deception of more than $150 (Ill. Rev. Stat. 1967, ch. 38, par. 16 — 1(b) (1)). He was sentenced to a term of 2 to 5 years in the penitentiary. Defendant appeals.

Defendant contends that the trial court erred in denying in part his motion for a bill of particulars; that the trial court erred in refusing to strike the testimony of a witness who allegedly testified in indirect violation of an order excluding witnesses; and that the evidence was insufficient to sustain his conviction. Defendant further contends that the closing argument of the prosecutor was prejudicial and that the trial court erred in refusing two of defendant’s tendered instructions. The pertinent facts are hereinafter set forth.

The third count of the indictment, upon which defendant was convicted, charged that from July 18, 1967, until September 21, 1967, he committed the offense of theft in that he knowingly obtained by deception control over three checks of the total value of more than $150, the property of Michael Michalek and Loretta Hedrick, doing business under the name and style of Valiant Insurance Agency, a partnership, intending to deprive them permanently of the use and benefit of the property.

During trial Michael Michalek testified that he had been an insurance broker for 14 years and that Valiant Insurance Agency was a partnership consisting of himself and his wife, Loretta Hedrick. In 1966 he placed insurance policies through the defendant who was then an agent for Public Mutual Fire Insurance Company, and made premium payments for these policies to defendant’s agency, Automobile Insurance Markets, 64 Old Orchard Road, Skokie, Illinois. He further testified that from April 1967 until October 1967 he ordered policies by telephone from Automobile Insurance Markets and that 99 percent of the policies he received in the mail were of the United Firemen’s Insurance Company, a Delaware corporation. After receiving the policies the witness sent checks covering the premium payments to the defendant’s agency. He identified three checks in the amounts of $2,010.40, $473.20 and $555.20, made payable to the order of Automobile Insurance Markets and drawn on the Valiant Insurance Agency, premium fund trust account, in payment for the United Firemen’s policies issued to nine insureds, including one Evelyn Buchner and one Jose Campos. The premium fund trust account consisted of the premium payments received from customers and other brokers after deducting the commissions of the Valiant Insurance Agency. On cross-examination Michalek stated that the monies contained in the premium fund trust account did not in any way belong to him personally.

Jack Clark Fisher, assistant supervisor of the License Division of the Illinois State Department of Insurance, testified that the license records indicated that defendant was a general insurance broker in Illinois during the years 1965, 1966 and 1967; that he resided at 10034 LaCrosse, Skokie, Illinois, and that he maintained a business address at 64 Old Orchard Road, Skokie.

Robert C. Chapman, an investigator for the Illinois State Department of Insurance, testified that he met with the defendant on August 24, 1967 at the latter’s office in Skokie. At the time, Chapman was investigating complaints that had been filed with his department against the defendant. The defendant informed him that he was the agent for and owner of Automobile Insurance Markets and that he represented the United Firemen’s Insurance Company whose home office was in New York City. The defendant further told him that the United Firemen’s policies were printed in New York City by a Mr. Cameron or a Mr. Murphy of United Firemen’s, but that the United Firemen’s policies in his possession came from a local broker named Bernard Becker.

Marie Shultie testified that she was employed by the Corporate Division of the State of Delaware, and that after a search of the division’s files she could find no record of a United Firemen’s Insurance Company ever having been chartered by the State of Delaware.

Margaret Dillon, chief of the Corporate Affairs Bureau of the New York State Insurance Department, testified that at no time was a United Firemen’s Insurance Company of Delaware ever licensed in the State of New York.

Donald Eugene Weber, assistant supervisor of the Corporate Property and Liability Division of the Illinois State Department of Insurance, testified that there was no company named United Firemen’s Insurance Company, a Delaware corporation, now or ever in the past, licensed in the State of Illinois. On cross-examination, the witness stated that prior to 1953 there were two United Firemen’s Insurance Companies, one a Pennsylvania corporation and one a New York corporation, licensed in Illinois. The Pennsylvania corporation then merged into the New York corporation which was licensed in Illinois until 1957.

Kenneth Wayne Smith, rate examiner for the Illinois State Department of Insurance, testified that a search he conducted revealed that there were no policies of a United Firemens Insurance Company, a Delaware corporation, in his department files, nor was there any authorization card for that company.

Bernard Becker testified that he was a general insurance broker and that in 1967 he placed insurance through the defendant with the United Firemen’s Insurance Company. He also testified that he never had any United Firemen’s policies printed and had never given the defendant any United Firemen’s policies.

David Silk testified that during 1967 he was a general insurance broker doing business as the Friendly Insurance Agency, and that he placed insurance for a company owned by Evelyn Buchner through the Valiant Insurance Agency. Evelyn Buchner testified that she owned a business called Evelyn’s Freezer Fresh and that in 1967 she insured the trucks of the business through an insurance agent named David Silk. She further testified that the policies which she received were from a company known as United Firemen’s Insurance Company.

Irene Markewych testified that she and her husband operated an insurance brokerage under the name of All Drivers Insurance, and that in 1967 she placed an insurance policy for one Jose Campos through the Valiant Insurance Agency. She further testified that the policy received by Campos was that of a United Firemen’s Insurance Company, and that the policy premium was paid to the Valiant Agency.

Reed Ehrlich testified that he was president of the Public Mutual Fire Insurance Company in 1967; that the defendant was an agent for his company and was authorized to sell policies for Public Mutual until January 20, 1967; and that the defendant would have in his possession a supply of Public Mutual policies to type and issue. He further testified his records reflected that Public Mutual policies 109601 through 109700 were issued to an agency called the Jemco Insurance Company, but that the code number of the agency appears on his records as 9914, which is the agency code number for Automobile Insurance Markets. The witness identified Public Mutual policy 109693 with the name of United Firemen’s Insurance Company pasted over the name of the Public Mutual Fire Insurance Company. The agency code number 9914 also appears on this policy.

Phillip Rapp testified that he operated an answering service at 64 Old Orchard Road in Skokie, Illinois, and that the defendant rented office space at that address. He further testified that his sister, Rose Rapp (since deceased), owned the Hallmark Press which also maintained an office in the same building. In 1967 he picked up materials for his sister at the Webber Printing Company, took them back in the form of a package to the Old Orchard address, and left the package on a desk in the office occupied by defendant. On cross-examination the witness stated that he left the package on a desk occupied by Hallmark Press and did not inspect the contents.

Melvin Webber, president of the Webber Printing Company, testified that after preliminary conversations with Rose Rapp she placed a printing order with his company on or about May 8, 1967. Along with the order Rose Rapp submitted an insurance policy to be reproduced, which was policy numbered 109693 with United Firemen’s Insurance Company heading pasted over the top. Webber testified that a partial completion of the order was picked up at his company and the remainder when completed was delivered by K and R Delivery, Inc. He identified an invoice of his company showing that the customer who placed the order was Hallmark Press, and that the order was to be drop-shipped to Automobile Insurance Markets, 10034 LaCrosse, Skokie, Illinois, in care of George Decker.

Donna Jiran, assistant to the president of K and R Delivery, Inc., testified that a drop-shipment is an order placed with a manufacturer by a supplier requesting delivery directly to supplier’s customer with the supplier’s name on the bill of lading. She identified a freight bill showing delivery of seven packages from Hallmark Press to Automobile Insurance Markets, 10034 LaCrosse, Skokie, in charge of George Decker.

Anthony Scafidi, an employee of K and R Delivery, Inc., testified that on May 31, 1967, he picked up a shipment a± the Webber Printing Company and took it back to K and R Delivery’s office. Donald John Carey, another employee, testified that he then delivered the same shipment to Automobile Insurance Markets, 10034 LaCrosse, Skokie, Illinois, and that the man who accepted delivery signed the freight bill as a receipt. The freight bill bears the signature of defendant, George Decker.

Gladys Leavitt, assistant cashier for the First National Bank of Lincoln-wood, identified the bank signature card for the account maintained by Automobile Insurance Markets showing the signator for the account to be the defendant.

Ralph T. Kuhlman, vice president and controller of the First National Bank of Lincolnwood, identified a sole ownership resolution filed with the bank which stated that defendant was the sole owner of Automobile Insurance Markets. It was stipulated that the three checks drawn on the Valiant Insurance Agency premium fund trust account and made payable to defendant’s agency were deposited in the account of Automobile Insurance Markets at the First National Bank' of Lincolnwood.

At the conclusion of the State’s case defendant did not testify or offer any evidence on his own behalf. We now proceed to a consideration of defendant’s contentions upon appeal. His first contention is that the court erred in denying a portion of the motion of defendant for a bill of particulars and that thereby he was precluded from knowing specifically what he would be required to meet at the trial to enable him to adequately prepare his defense. Prior to trial defendant filed a written motion for a bill of particulars including in part a request for particulars as to the manner or scheme whereby he is alleged to have obtained control by deception over each of the checks for the payment of money set forth in the indictment, and to state the alleged specific consideration, given or to be given by the defendant in exchange for each of said checks. The trial court sustained the refusal of the State to furnish the required particulars.

The Illinois statute providing for bill of particulars is set forth in the Code of Criminal Procedures of 1963 (Ill. Rev. Stat. 1967, ch. 38, par. 111 — 6).

The determination of whether a bill of particulars wiIll be ordered upon the request of a defendant is left to the discretion of -the trial court, and in the absence of a showing of an abuse of that discretion which results in injury to a defendant, the trial court’s denial of particulars does not constitute error. (People v. Brown (1966), 68 Ill. App.2d 17.) The object or purpose of a bill of particulars is to supplement a sufficient indictment with more specificity of detail to enable a defendant to better understand the nature of the charges against him, or to better prepare a defense to the charges. (People v. Patrick (1967), 38 Ill.2d 255.) However, a defendant is not entitled to a general disclosure of evidence which the prosecution wiH present at trial, and a motion for a bill of particulars which attempts to do so in the guise of requesting facts omitted from the indictment and essential to the preparation of a defense should be denied. People v. Diekelmann (1937), 367 Ill. 372.

The Illinois Supreme Court sustained the denial of a bill of particulars in a prosecution for obtaining money by means of a confidence game and held that it was unnecessary to set out, either in an indictment or in a bill of particulars, the various devices and means resorted to by the defendants to obtain the confidence of the complaining witness. People v. Weil (1910), 244 Ill. 176.

In the instant case the indictment and that portion of the bill of particulars as to which the State did comply, furnished the defendant with the name of the complaining witness, the check numbers over which he allegedly obtained control, their amounts and dates of issuance. The indictment and these disclosures were sufficient to inform the defendant of the specific transactions brought in question and as to which he was charged, and any further information as to the nature of the transactions would have entered into a disclosure of the State’s evidence prior to trial. The trial court did not abuse its discretion in denying that portion of defendant’s motion for a biH of particulars.

Defendant next contends that the trial court erred in refusing to strike the testimony of a witness who allegedly testified in indirect violation of an order excluding witnesses which was entered at the commencement of the trial. During the State’s case-in-chief Robert Chapman testified that defendant informed him on two occasions that the United Firemen’s policies he was issuing came from a Bernard Becker. Subsequently, the State called Bernard Becker as a witness. Although he had not previously attended the trial, Becker stated on cross-examination that shortly before testifying, the prosecutor told him the general nature of the defendant’s statements to Chapman as to the origin of the United Firemen’s policies.

The trial court denied defendant’s motion to strike all of Becker’s testimony in that the prosecutor indirectly violated the order excluding witnesses in informing Becker of Chapmans testimony. Assuming, arguendo, that the order excluding witnesses was thereby violated, the question of whether a witness who has violated an exclusion order should be permitted to testify is within the discretion of the trial court and its determination will not be disturbed unless a clear abuse of discretion is shown. (People v. Gibson (1969), 42 Ill.2d 519; People v. Nelson (1965), 33 Ill.2d 48; People v. Marshall (1966), 74 Ill.App.2d 472.) Other than the assertion of an indirect violation of the exclusion order, defendant has failed to show how the trial court abused its discretion in permitting Becker to testify, and in the absence of such a showing the contention must fail.

Defendant further contends that the evidence was insufficient to sustain the conviction. Three insufficiencies in the State’s evidence are urged: that no ownership was proved in the funds transferred from the premium account of Valiant Insurance Agency to defendant; that defendant’s knowledge of United Firemen’s nonexistence was not proved; and that it was not shown that the printing of United Firemen’s policies was ordered by defendant. We disagree with each of the three alleged insufficiencies.

Section 15 — 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 15 — 2) defines an owner of property, as used in the theft statute, as follows:

“* * * ‘owner means a person, other than the offender, who has possession of or any other interest in the property involved, even though such interest or possession is unlawful, and without whose consent the offender has no authority to exert control over the property.”

The proof of specific ownership of property in the person named in the indictment is therefore unnecessary if it is shown that the named person had some possessory interest in the property at the time of the offense. (People v. Dell (1966), 77 Ill.App.2d 318.) In the instant case Michael Michalek testified that he and his wife, Loretta Hedrick, as co-partners doing business as Valiant Insurance Agency, maintained a premium fund trust account for segregating premium funds to be paid to various insurance carriers for policies of insurance issued by those companies. The Illinois Insurance Code (Ill. Rev. Stat. 1967, ch. 73, par. 1065.52) requires insurance brokers and agents to maintain such funds in a fiduciary capacity. A broker or agent stands as a trustee in relation to the funds contained in a premium fund trust account. (Robert P. Butts & Co. v. Estate of Butts (1970), 119 Ill.App.2d 242.) It therefore follows that Michael Michalek and Loretta Hedrick, as co-partners in the Valiant Insurance Agency, were co-trustees of the premium fund trust account and had sufficient possessory interest in the funds represented by the three checks obtained by defendant to qualify as the owners at the time of the offense.

Defendant’s knowledge of the nonexistence of United Firemen’s Insurance Company and his role in ordering the printing of the United Firemen’s policies were factual determinations for the jury. The jury’s determination cannot be disturbed unless it is so palpably contrary to the weight of the evidence or so unsatisfactory as to justify a reasonable doubt of defendant’s guilt. People v. Wilson (1970), 45 Ill.2d 581.

Testimony was presented at trial that there was no United Fireman’s Insurance Company, a Delaware corporation, incorporated in Delaware nor licensed to do business in either New York or Illinois. Michael Michalek testified that insurance orders were placed with defendant by telephone and that United Firemen’s policies were then received by mail from defendant. An Illinois State Department of Insurance representative testified that the defendant told him the United Firemen’s policies in his possession had been acquired through Bernard Becker. Becker testified that he had not supplied United Firemen’s policies to defendant but had in fact ordered such policies for his own customers through the defendant.

Testimony was also presented that defendant had in his possession a certain numbered policy of Public Mutual Fire Insurance Company which was subsequently used as a model for printing the United Fire-' men’s policies by pasting the United Firemen’s name over the Public Mutual name. The printing order had been placed by defendant’s landlord, since deceased. A partial completion of the printing order was left at the business office of defendant. The balance of the order was delivered to the home of defendant and a receipt for delivery bearing his signature was received in evidence. The three checks drawn on the Valiant Agency premium fund trust account and representing premium payments for United Firemen’s policies were deposited in defendant’s business account at his bank, over which account he had exclusive control. Upon full consideration of the foregoing, there was sufficient evidence from which the jury could determine that defendant had knowledge of the United Firemen’s nonexistence and that he participated in ordering the printing of United Firemen’s policies.

Defendant further contends that the closing argument of the prosecutor was prejudicial in two instances. In the State’s case-in-chief Evelyn Buchner testified that she had purchased one of the United Firemen’s policies from an agency which in turn had placed the insurance through Valiant in order to insure a fleet of trucks used in her business. The State also introduced other United Firemen’s policies for automobile and truck coverage which had been sold to customers of the Valiant Agency. In closing argument tire prosecutor focused upon defendant’s activities as they related to the purchasers of the policies. The prosecutor stated, “But what about the people who are running around in their cars?” Defendant objected that there was no evidence of anyone driving around, which objection was sustained. The prosecutor then said, “What about the people who had their cars and thought they had insurance?” Defendant’s objection to this remark was overruled as being a fair inference from the evidence.

It is well settled that closing arguments of a prosecutor, based upon proven facts and circumstances or upon legitimate inferences therefrom, do not exceed the bounds of proper debate and are not to be discountenanced by the courts. (People v. Miller (1958), 13 Ill.2d 84; People v. Howe (1940), 375 Ill. 130; People v. Conrad (1967), 81 Ill.App.2d 34.) In the instant case, even though the first remark of the prosecutor to which defendant took objection was ruled improper by the trial court, we do not believe that either of tire remarks transcended the bounds of fair comment upon the evidence or legitimate inferences therefrom. Both testimonial and documentary evidence was presented at trial that defendant had issued United Firemen’s policies purporting to insure the vehicles of customers of the Valiant Agency and other agencies. The comment that those people who had purchased such insurance were driving their vehicles during the policy term was a proper inference to be drawn from the evidence. The subsequent remark by the prosecutor concerning people who had cars and thought they had insurance coverage was nothing more than a comment upon tire evidence itself. Neither of these remarks was improper or prejudicial to the defendant.

Finally, it is contended by defendant that the trial court erred in refusing two of the tendered defense instructions. Defendant’s Instruction No. 7, which was tendered and refused, provided:

“Circumstantial, evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.
You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.” (IPI-Criminal, No. 3.02.)

The first paragraph of Defendant’s Instruction No. 7 was given to the jury as People’s Instruction No. 6.

Illinois Supreme Court Rule 451(a) provides that whenever an IPI-Criminal instruction is applicable to the facts of a case the instruction shall be given, unless the trial court determines that it does not accurately state the law. (Ill. Rev. Stat. 1969, ch. 110A, par. 451(a).) The Committee Note to IPI-Criminal Instruction 3.02 states that the second paragraph as to the exclusion of every reasonably theory of innocence “should be given only in cases where the proof of guilt is entirely circumstantial.” Defendant directs this court’s attention to several remarks made by the prosecutor during the course of trial that the State’s evidence in this case was entirely circumstantial. However, we believe that the prosecutor misapprehended the nature of some of the evidence introduced by the State, and we do not feel bound to adopt his characterization of the evidence. The essential elements which must be proved to sustain a charge of theft by deception are that a named person was the owner of a specified property; that the accused knowingly obtained by deception control over that property; and that the accused acted with the intent to permanently deprive the named owner of the use and benefit of that property.

In the instant case, direct evidence was presented by the State to prove the first two elements. Michael Michalek testified as to possessory control over the funds represented by the three checks sent to defendant. Two employees of the bank in which defendant maintained his business account identified the sole ownership resolution and the signature card filed with the bank. It was stipulated that the three checks sent to defendant by the Valiant Agency were deposited in defendant’s business account. The three checks, as well as the bank deposit tickets listing the checks, were introduced into evidence. The evidence not being entirely circumstantial, Defendant’s Instruction No. 7 was properly refused.

Defendant’s Instruction No. 8, which was tendered and refused, provided:

“If two conclusions can reasonably be drawn from the evidence, one of innocence and one of guilt, the jury should adopt the one of innocence.” Not in IPI-Criminal.

Defendant urges that since there was no direct evidence tending to show his knowledge of the nonexistence of the United Firemen’s Insurance Company, the conclusion could also be reached that defendant was unaware of its nonexistence, and that therefore this is a case where opposing theories of guilt or innocence arise out of the same facts. The instruction is not contained in IPI-Criminal and has been held proper only when the opposing theories of guilt and innocence arise out of the same proven facts. (People v. Rhodes (1969), 41 Ill.2d 494; People v. Lefler (1967), 38 Ill.2d 216; People v. Lexow (1962), 23 Ill.2d 541; People v. Malmenato (1958), 14 Ill.2d 52.) In the instant case, defendant did not testify nor offer any defense as to a separate theory, nor are such opposing theories presented. The jury was adequately instructed as to circumstantial evidence, the requirements of proof beyond a reasonable doubt, and the presumption of innocence. Defendant was not entitled to the two theory instruction or to repetitious instruction. (People v. Richards (1970), 120 Ill.App.2d 313.) Defendant’s Instruction No. 8 was properly refused.

For all of the foregoing reasons the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    In re Estate of Lawrence Wakefield, Deceased,—(Jessie Wakefield, Petitioner-Appellant, v. James L. O’Keefe, Public Adm’r et al., Respondents-Appellees.)
    (No. 58513;
    First District (3rd Division)
    April 4, 1974.

      Luster & Luster, of Chicago, for appellant.
    Owens, Owens & Rinn, of Park Ridge, for appellees.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Petitioner filed a petition in the probate division of the circuit court of Cook County seeking to amend a proof of heirship and asking that she be declared the surviving spouse of the decedent, Lawrence Wakefield. The petition was heard by the trial court without a jury, and resulted in an order finding that petitioner had failed to establish that she was decedent’s surviving spouse and dismissing the petition.

On February 19, 1964, decedent died intestate in Cook County. On February 21, 1964, a petition for letters of administration was filed by James L. O’Keefe, Public Administrator. In 1966 a declaration of heirship was entered reciting that respondents James Gamby and Elsie Gamby Bell were the only known heirs of decedent.

Approximately 5 years later, on March 11, 1971, petitioner filed her petition alleging that she was the common-law wife of decedent. She claimed that she became the common-law wife of decedent in October 1928 in Detroit, Michigan, and lived with him in Michigan until 1933. She further alleged that she moved to Chicago with decedent in 1933 and lived there with him until 1934.

On May 24, 1920, petitioner married Harry Dore in Chicago, and did not divorce Dore prior to his death in November, 1928. The petitioner married Levi McBride in 1950.

At the hearing on the petition on July 31, 1972, the court sustained respondents’ objection and ruled that petitioner was incompetent to testify under the “Dead Man’s Act.” Ill. Rev. Stat. 1971, ch. 51, par. 2.

Argie Post of East Detroit, Michigan, testified for petitioner that they were acquainted and that she knew petitioner as Jessie Dore. In 1928, at a social gathering in Detroit, petitioner introduced the decedent as her husband. At the same time, the decedent stated that petitioner’s name was Wakefield. Thereafter, Argie Post moved into an apartment with the petitioner and the decedent. The witness had one bedroom, and the couple shared the other bedroom. During this time, they addressed each other as husband and wife. The witness further testified that the decedent and petitioner left for Chicago in 1934, while she remained in Detroit. Respondents introduced evidence of Argie Post’s prior convictions.

Respondents’ evidence at' the hearing consisted of documentary evidence: a certified copy of tire marriage license issued to petitioner and Levi McBride in 1950, which stated that Jessie Dore was a widow who had been married only once; and decedent’s death certificate containing the information that he never married.

Petitioner initially contends that the trial court erred in allowing respondents’ motion for a directed finding at the close of petitioner’s case. Petitioner argues that the evidence presented on her behalf established a prima facie case that she was decedent’s surviving spouse, and that when respondents failed to offer any evidence in rebuttal, she was entitled to a declaration that she was decedent’s surviving spouse and heir.

An examination of the record does not support petitioner’s assertion that the trial court granted respondents’ motion for a directed finding. While respondents did make such a motion, the record reveals that tire trial judge thereupon asked respondents if they had anything else to offer. Respondents then introduced the aforementioned documentary evidence and rested. After hearing argument, the trial court ruled that petitioner had failed to establish that she was decedent’s surviving spouse and dismissed the petition. The court did not state that it was granting respondents’ motion for a directed finding. In any event, the trial court, in a trial without a jury, shall weigh the evidence in deciding a motion for judgment at the close of plaintiff’s case. (Allfree v. Estate of Rosenthal (1969), 113 Ill.App.2d 90, 251 N.E.2d 792.) We believe that the trial court correctly determined that plaintiff had failed to establish that she was decedent’s surviving spouse.

In the trial court, respondents argued that petitioner had failed to overcome the presumption of the validity of the subsequent ceremonial marriage; that because petitioner was legally married to Plarry Dore, she was incapable of contracting a common-law marriage; and finally, that petitioner failed to satisfy the essential requirements in order to contract a valid common-law marriage. We deem it necessary to consider only respondents’ final argument in order to demonstrate that petitioner failed to establish that she was the decedent’s surviving spouse.

Both sides agree that prior to 1957 common-law marriages contracted in Michigan were valid and enforceable and carried the same civil rights and obligations as a ceremonial statutory marriage. Michigan courts have held, however, that in order to establish a common-law marriage two elements are essential: one, a present agreement of the parties to take each other as husband and wife, and secondly, their subsequent cohabitation as husband and wife. (Griffin v. Griffin (1923), 225 Mich. 253, 196 N.W. 384; Lockwood v. Lockwood (1922), 220 Mich. 124, 189 N.W. 871.) The burden of proof is on the proponent to show that a present agreement exists between the parties to take each other as man and wife at the present time, not in the future. (In re Meredith’s Estate (1937), 279 Mich. 298, 272 N.W. 683.) Evidence to establish a common-law marriage must be clear and convincing. Brown v. Long Manufacturing Co. (1921), 213 Mich. 221, 182 N.W. 124.

The fact that parties cohabit together and are known as husband and wife, although one element of common-law marriage, is not sufficient to establish such a marriage. A present agreement to take each other as husband and wife must also be established. In the present case, the record is devoid of any evidence indicating that there was an agreement between the petitioner and the decedent to take each other as husband and wife. Argie Post’s testimony merely indicated that the parties cohabited together and held themselves out to be man and wife. The language of the Michigan Supreme Court in Brown v. Long Manufacturing Co., supra, at page 224 is pertinent:

“We must also recognize that there are other couples * * * living together as a mere matter of convenience or for other reasons and, who, as a matter of protection against criminal prosecutions or unfavorable comment, represent themselves to be husband and wife, and are known by the same name, although they never have consented to take each other as husband and wife.

The court did not err in finding that petitioner failed to establish that she was the surviving spouse of the decedent.

Petitioner next contends that the trial court erred in refusing to reopen the proof in order to permit petitioner to testify. In order to understand his argument, it is necessary to set forth a brief statement of what transpired a the close of the hearing.

After respondents introduced their documentary evidence, respondents’ counsel announced that he rested. He then received permission to make a short statement in support of his motion to dismiss the petition. Petitioner’s counsel interrupted the statement to comment that he understood that respondents’ counsel had prepared a brief. Petitioner’s counsel stated that he wished to examine the brief and to submit an answering brief. The trial judge gave petitioner 15 days to file an answering brief. Respondents’ counsel pointed out that he had indeed prepared a trial memorandum, but had not submitted it, and asked if the court wished him to file it. Petitioner’s counsel indicated that it was up to the court as to whether the memorandum could be filed, and voiced no objection. The court allowed respondents to file the trial memorandum and continued the cause to August 23, 1972.

On that date, petitioner filed a motion requesting that the cause be reopened and that she be permitted to testify. The basis of the request was that the trial memorandum submitted by respondents contained a short introductory paragraph entitled “Facts” in which was set forth some testimony, including admissions, given by petitioner at a prior discovery deposition. Petitioner’s motion admitted that under the dead man’s statute she was incompetent to testify at the hearing, but argued that respondents, by filing the trial memorandum with its references to petitioner’s deposition testimony, waived their right to object to petitioner testifying. The trial court denied the motion to permit petitioner to resume the trial and to testify. On the same date, the court dismissed the petition.

Respondents did not introduce the petitioner’s discovery deposition into evidence, nor did they offer the trial memorandum into evidence. Indeed, the record reveals that the memorandum was filed with the court only after all the evidence had been received, without objection on the part of petitioner’s counsel, and almost at his request. The trial memorandum was not evidentiary in nature, and clearly was not filed by respondents for that purpose. Just as clearly, under the circumstances of its filing, the memorandum did not constitute, as petitioner claims, a “back door” effort to get petitioner’s deposition testimony to the attention of the court. In Gleneke v. Lesny (1970), 130 Ill.App.2d 116, 264 N.E.2d 803, defendants supported their motions to open the judgment with affidavits, to which the plaintiff administrator made no objection. This court held that failure to object to defendants’ affidavits did not amount to a waiver of application of the dead man’s statute to defendants as witnesses at trial. Under the facts and circumstances of the present case, the filing of the trial memorandum did not constitute a waiver of respondents’ objection to petitioner’s competency to testify. The trial court correctly denied petitioner’s motion to reopen the proof.

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

Order affirmed.

McGLOON and MEJDA, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William S. Miller, Defendant-Appellant.
    (No. 58609;
    First District (4th Division)
    April 10, 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 (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

In a jury trial in the Circuit Court of Cook County the defendant, William Miller, was found guilty of arson, and the court sentenced him to a term of 5 to 12 years in the Illinois State Penitentiary.

The issues for review are whether the admission into evidence of shirt remnants and other material taken from the Cook County Hospital Burn Unit without a warrant was improper and plain error; whether tire court erred in failing to suppress inculpatory statements made by the defendant under the influence of depressant drugs; whether the court erred in refusing to give the defendant’s instruction based on his contention that all evidence was circumstantial; and whether the sentence imposed exceeded the minimum term under the Illinois Unified Code of Corrections.

At about 4:30 in the morning on July 1, 1971, an explosion and fire occurred at the Beefy 19 restaurant at 5241 North Western Avenue, in Chicago, Illinois. Webb Threet of the Bomb and Arson Detail of the Chicago Police Department testified that the conditions at the scene indicated the interior of the premises was saturated with gasoline and ignited by either a spark or by someone striking a match. Police found a gasoline can inside tire premises, another outside, a burned pair of trousers with what appeared to be flesh clinging to the interior, and a burned and ragged piece of multi-colored cloth.

Mrs. Frances Codd, who lives about 14 blocks from the scene of the fire, testified that at about 5:15 on the morning of the fire she had just returned from driving her husband to work when a man approached her wearing only undershorts and cuffs from a multi-colored shirt. He said his stove exploded and asked her to take him to his home. He appeared to be in pain, and when she offered to call the police to give him first aid, the man ran away. She identified the defendant as the man she saw in front of her house.

At about 5:30 A.M. on July 1, the defendant walked into the emergency room of the Skokie Valley Community Hospital in Skokie, Illinois, in a severely burned condition and was taken by helicopter to the burn center at the Cook County Hospital.

Officer Ciolli of the Chicago Police Department went to the bum unit and saw the shorts and shirt parts being removed from the defendant. He told a nurse that the articles were evidence, and she placed them in a plastic container and gave them to Officer Ciolli.

On July 6, the defendant talked to Officer John Bickler after being advised of his constitutional rights. The defendant stated he received his bums while walking down Clark Street, south of Lunt, but he didn’t know how he got them. He stated further he had worked at the Beefy 19 for three days and had gone past it on the night before the fire but did not stop. He also said he lived at 7016 Ridge Avenue.

Officer Henry Danker testified he searched the area near the Beefy 19 and located a vehicle parked about 30 or 40 yards from the burned building. The license plate was listed in the name of Bill Miller of 7016 N. Ridge, Chicago, Illinois.

Mary Ann Mohan, a Chicago Police Crime Laboratory microanalyst, testified the shirt cuff from the defendant’s wrist was similar in color, patterning, weave, and fabric content to the remains of the shirt found behind the restaurant after the fire.

The defendant first contends the court erred in modifying the order of August 17, 1972, suppressing the clothing remnants taken at the Burn Unit of Cook County Hospital. Originally, the court had suppressed the evidence, but the next day the court modified its order to exclude the evidence taken at the Bum Unit. The reason given was that there was probable cause to believe the defendant had committed a crime, that there were exigent circumstances in that if the police officer did not take the items when he did, in all likelihood they would have been destroyed. The defendant argues the reasons given by the court are unsubstantiated by the record and the seizure of remnants of his clothing without a warrant is exactly the same situation as existed in the case of Coolidge v. New Hampshire, 403 U.S. 443. In Coolidge, the court stated:

“The police had ample opportunity to obtain a valid warrant; they knew the automobile’s exact description and location well in advance; they intended to seize it when they came upon Coolidge’s property. And this is not a case involving contraband or stolen goods or objects dangerous in themselves.” (403 U.S. at 472.)

In the instant case the seizure of the remnant did not present the same opportunity for obtaining a warrant. Officer Ciolli testified as follows:

T said, I told her, I said, ‘You are not going to throw that away.’ I said, ‘That is evidence,’ and I told her I was a police officer. She put it in a plastic bag and then she waved me back not to interfere with what was going on.”

Officer Ciolli could not take the chance the remnants would be destroyed while he obtained a search warrant. See Schmerber v. California, 384 U.S. 757.

Secondly, the defendant argues the court erred in refusing to suppress statements made to Officer Bidder while he was in the hospital under the influence of depressant drugs. Dr. Ravin Thatte testified he was at Cook County Hospital when the defendant was admitted and defendant was very seriously burned. He appeared to be incoherent and hostile. He stated that from July 6 to July 9 the defendant was on intermittent analgesic sedation, but he was unable to state objectively what his condition was at the time he talked to Officer Bidder. The defendant contended on his motion to suppress that he had no recall of having talked to Officer Bidder or anything else which happened during his first 30 to 35 days in the hospital. In denying the motion the trial judge relied on the case of People v. Pote (1972), 5 Ill.App.3d 856:

“When the statement is clear and lucid and witnesses testify that at the time defendant was alert and able to give a rational statement, prior medical treatment with drugs will not render the statement inadmissible.” (5 Ill.App.3d at 859-860.)

Officer Bickler testified he and the defendant had a normal conversation. The defendant’s answers were rational and his conversation was lucid. Despite the testimony regarding the type of drugs he was taking, there was no evidence the defendant did not understand what was happening.

Thirdly, the defendant contends the court erred in not giving Illinois Pattern Jury Instruction No. 3.02 in its entirety. The State offered only the first paragraph, which reads as follows:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”

The court refused the second paragraph of the instruction which was tendered by the defendant:

“You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.”

The court refused to give the second paragraph after having found that both direct and circumstantial evidence was presented to the jury.

The second paragraph of Illinois Pattern Jury Instruction No. 3.02 need not be given where there is both circumstantial and direct evidence. (People v. Bell (1972), 7 Ill.App.3d 625; People v. Springs (1972), 2 Ill.App.3d 817.) After reviewing the record we find there was direct as well as circumstantial evidence presented to the jury, and the court was correct in exercising its discretion and refusing the second paragraph of the instruction. Among the examples of direct evidence are the testimony regarding the existence of arson, the testimony regarding the burned condition of the defendant near the scene of the fire, and the presence of his car near the scene of the fire.

The defendant’s final contention is that his sentence of 5 to 12 years is excessive. Under the case of People v. Harvey (1973), 53 Ill.2d 585, a defendant may avail himself of the provisions of the Unified Code of Corrections which mitigate his minimum sentence, if his direct appeal has not been finally adjudicated as of the effective date of the Unified Code of Corrections. The offense of arson is now characterized as a Class 2 felony (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 20 — 1), which provides for a minimum sentence one-third of the maximum term set (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005 — 8—1(c)(3)). Therefore, the minimum term of 5 years must be reduced to 4 years.

For these reasons the judgment of the Circuit Court of Cook County is affirmed in part and modified in part.

Affirmed in part and modified in part.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Respondent-Appellee, v. James Hall, Petitioner-Appellant.
    (No. 57758;
    First District (5th Division)
    April 11, 1974.

      Paul Bradley, Deputy Defender, of Chicago (James R. Streicker, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James Veldman and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This is an appeal of a dismissal of a petition for post-conviction relief without an evidentiary hearing. On review petitioner argues that: (1) his guilty plea is invalid because the trial court’s admonition failed to inform him adequately of the permissible range of sentence that might be imposed; and (2) the contention raised in his petition that his guilty plea was induced by the unfulfilled promise of his attorney could not be dismissed without an evidentiary hearing.

On March 18, 1970, petitioner entered a plea of guilty to an information charging him with armed robbery. Before accepting the plea the trial court admonished petitioner and a co-defendant (not a party to this appeal) that they were charged with a felony, that they had the right not to proceed under the information, but could require their case be taken before the Grand Jury; that if the Grand Jury returned an indictment, they had the right to a jury trial, and that by entering a guilty plea they were waiving these rights. In response to the court’s inquiry, petitioner acknowledged that he understood the import of these admonitions but, nevertheless, wished to persist in his guilty plea. The court then admonished petitioner and his co-defendant that:

“* * * I could impose a sentence upon each of you, by sentencing you to a minimum two years to an undetermined period more than two years in the Illinois State Penitentiary.”

Petitioner once again acknowledged that he understood the consequences of his plea. Before imposing the sentence of from 2 to 3 years recommended by the State, the court determined that this sentence was the recommendation conveyed to petitioner by his attorney.

At the time of his armed robbery conviction, petitioner was on probation, having been previously convicted of burglary. The State filed a rule to show cause why his probation should not be revoked, and a hearing was held before a judge other than the judge who sat at the change of plea hearing. In addition, petitioner was represented by a different attorney at this later proceeding. Upon his admission that he had been convicted of armed robbery, petitioner’s probation was ordered revoked. The court sentenced him to a term of from 2 years to 2 years and a day to be served consecutively to the term he received for his armed robbery conviction. Petitioner immediately protested that he had been promised that whatever sentence he received upon revocation of his probation would be served concurrently with that which he had been given for armed robbery, otherwise he “never would have copped out for the crime.”

Petitioner filed a pro se petition for post-conviction relief as to the armed robbery conviction. Counsel was appointed and an amended petition was filed. The petition alleged that petitioner had not been sufficiently admonished as to the consequences of his guilty plea in that he was not told the maximum sentence which might be imposed and, further, that his attorney at the change of plea hearing had induced the guilty plea by promising that the sentence received there would run concurrently with that later to be imposed upon the revocation of his probation. Attached to the amended petition were the affidavits of three persons who were present with petitioner in the lockup prior to his change of plea hearing. They swore that they overheard petitioner’s counsel promise that the- two sentences would run concurrently.

The State moved to dismiss the petition. In support of this motion the affidavit of petitioners’ attorney at the change of plea hearing was submitted stating that he had no independent recollection of this matter and that upon reviewing his notes he could find no indication that petitioner had informed him that he was on probation. The State also submitted the affidavit of petitioner’s attorney at the probation revocation hearing which stated that while he too apparently had no independent recollection of this matter, his notes indicated that petitioner had said nothing to him about the alleged promise of concurrent sentencing.

On the basis of the transcripts, motions and affidavits submitted for consideration, the court below found that petitioner’s contentions did not merit an evidentiary hearing and consequently dismissed the petition.

Relying on People v. Terry, 44 Ill.2d 38, 253 N.E.2d 383, petitioner first contends that the court’s admonition was insufficient since it did not apprise him precisely of the maximum sentence which might be imposed. The trial court admonished petitioner that he could be sentenced for a term of from “a minimum two years to an undetermined period more than two years in the Illinois State Penitentiary.” We note that in People v. Gaines, 48 Ill.2d 191, 268 N.E.2d 426, tire supreme court upheld as sufficient an admonition that the accused could be sentenced to “an indeterminate term in the Illinois State Penitentiary for any number of years and the court can fix the minimum and maximum terms of such sentence.” (See also People v. Daniels, First Dist. No. 59258, 18 Ill.App.3d 197, 309 N.E.2d 631, upholding a similar admonition.) In reaching its decision the court specifically found Terry to be inapplicable. In the instant case petitioner received an admonition substantially similar to that upheld in Gaines. In view of the absence of any evidence that he did not understand the consequences of his plea, we find that the admonitions given him were sufficient. Cf. People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30.

Petitioner also contends that his petition required an evidentiary hearing since the allegation that his plea was the product of an unfulfilled promise of his attorney presented an issue of fact that could be resolved only by the taking of evidence. Specifically he asserts that he was promised that the sentence that he received for pleading guilty to armed robbery would run concurrently with that to be imposed upon revocation of his probation. In pressing his claim petitioner points to the affidavits of the individuals who were with him in the lockup on March 18, 1970, when he met with his attorney. These affidavits are in agreement that a promise of concurrent sentencing had been made.

The State argues that Gaines should also control our disposition of this issue. In Gaines the defendant submitted his own affidavit and that of his sister in support of his contention that his plea was the result of an unfulfilled promise by counsel of leniency. The supreme court, pointing to such factors as the fact that at the hearing in aggravation and mitigation the defendant was specifically asked whether his plea was the product of a promise of leniency and that later he failed to protest when an exceptionally severe sentence was imposed, held that where there are facts in the record relating to the issue of alleged promises which fairly contradict a petitioners claim, a court may properly grant a motion to dismiss. We, however, find the instant case to be distinguishable.

The State here has supported its motion to dismiss with the affidavits of petitioner’s attorneys at the change of plea hearing and at the probation revocation hearing. In neither instance, apparently, did the attorney have an independent recollection of the events relevant to petitioner’s claim. The statements made by both, after reviewing their notes, at best inferentially contradict petitioner’s assertions. Moreover, the record reveals that petitioner protested at the probation revocation proceeding that he entered his plea to the armed robbery charge as a result of the representations of counsel that he would receive concurrent sentences.

We find that a factual issue has been raised, that this issue cannot be resolved by merely reviewing the hearing transcripts, pleadings and affidavits, and, consequently, we find that the court below erred in dismissing the petition without an evidentiary hearing. People v. Sigafus, 39 Ill.2d 68, 233 N.E.2d 386.

The judgment entered below is reversed and remanded for an evidentiary hearing on the issue of whether petitioner’s plea was the product of an unfulfilled promise.

Reversed and remanded with directions.

SULLIVAN, P. J., and LORENZ, J., concur.

       Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402, 50 Ill.2d R. 402) was not in effect at the time petitioner entered his plea.


text:
    Conthelia Yangas, Plaintiff-Appellee, v. Mercantile Laundry Co., et al., Defendants-Appellees—(Catherine Yangas, Intervening Petitioner-Appellant.)
    (No. 58353;
    First District (4th Division)
    April 10, 1974.
    Asher Feren, of Chicago, for appellant.
    Katz, Karacic & Mansfield, of Chicago, for appellees.
    Robert S. Fiffer, of Chicago, for James M. Flanagan, Liquidator.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This action to intervene in liquidation proceedings of the Mercantile Laundry Company was filed in the Circuit Court of Cook County by Catherine Yangas, a 50 percent owner of the building leased by the company at 153-159 Chicago Avenue, Chicago, Illinois. She appeals from the order of the court denying her leave to intervene.

The issue for review is whether the court erred in refusing to allow the intervening petitioner to intervene in the liquidation proceedings.

The principal suit, filed on September 21, 1971, was an action for an accounting and other relief by Conthelia Yangas, the mother of the intervening petitioner and a minority shareholder of the Mercantile Laundry Co., against the Mercantile Laundry Co.; Thomas Brown, the president of the corporation; George Varney, Sr;, secretary of the corporation; George Varney, Jr., who was vice president of the company until approximately 2 years prior to suit; and Peter Calopeses, one of the drivers of the corporation.

The chancellor in the principal action appointed James Flanagan as a representative of the court to investigate and analyze the condition of the company and to make recommendations to the court with regard to the continued operation of the company. On June 7, 1972, he was given authority by the court to solicit offers for the assets of the company.

The intervening petitioner, Catherine Yangas, is a 50 percent owner of the building leased to the Mercantile Laundry Co., and George Varney, Jr. and Thomas Brown each own 25 percent. When the company failed to pay the rent of $1300 per month specified in the lease, the intervening petitioner obtained a judgment of eviction on June 30,1972. However, the writ of restitution was stayed for 60 days. On August 15, 1972, the court, in the principal case, decreed that rent for the premises during the dissolution of the business would be $500 per month, one-half of which was payable to Catherine Yangas. She had not been made a party to the proceedings, and she refused to accept the reduction in rent while waiting for the premises to be vacated.

The intervening petitioner filed separate suits to bar the corporation from committing waste by tearing down walls in the building and for a declaratory judgment against her co-owners and James Flanagan to have a determination made of her rights and responsibilities.

On September 27, 1972, the intervening petitioner filed a petition for process to evict the Mercantile Laundry Co., and/or James Flanagan, and the petition was denied. The court also ordered the receiver to remain in possession of the premises and pay rent at the rate of $500 per month until October 31, 1972.

On October 16, 1972, the intervening petitioner’s action for eviction was consolidated with the principal suit, and her petition for the issuanee of a writ of restitution and other relief was denied.

On October 26, 1972, the intervening petitioner filed a “petition for leave to intervene for payment of rent and other relief,” which was denied. At the hearing the trial judge stated he would entertain the petition to intervene if the petitioner would consolidate the other suits. On November 14, 1972, the petitioner filed a “petition of reconsideration of petition to intervene or for setting of supersedeas appeal bond,” in which she stated the issues in at least one of the other law suits were not confined to the matter before the judge in the principal litigation and that the judges having jurisdiction in the other law suits might refuse consolidation. That petition was also denied.

The intervening petitioner appeals from the order of November 14, 1972, denying her petition.

Section 26.1 of the Civil Practice Act (Ill. Rev. Stat., 1972 Supp., ch. 110, par. 26.1) provides for intervention as follows:

“Intervention. (1) Upon timely application anyone sháll be permitted as of right to intervene in an action: (a) when a statute confers an unconditional right to intervene; or (b) when the representation of the applicant’s interest by existing parties is or may be inadequate and the applicant will or may be bound by a judgment, decree or order in the action; or (c) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or an officer thereof.”

The Joint Committee Comments to section 26.1 state in part:

“Intervention is frequently desirable to allow a person to protect an interest jeopardized by pending litigation to which he is not a party or to avoid relitigation in another suit of issues which are being litigated in a pending suit.”

The intervening petitioner argues that as one of the owners of the building leased to the company she was entitled to be a party to the proceedings when the court established the rent to be paid by the company, pending liquidation, and that she could intervene as a matter of right under section 26.1(1) (c) of the Civil Practice Act. She also contends she meets the standards for intervention established in the case of Wert v. Burke (1964), 47 Ill.App.2d 453: (1) that the representation of the applicant’s interest may be inadequate, and (2) that the applicant may be bound by the judgment.

The defendants contend that the purpose of intervention is to expedite litigation and prevent a multiplicity of suits, and that the intervening petitioner was attempting to multiply the pending actions and gain an additional, forum to litigate the basic issues. They argue that whether intervention is permitted is a matter to be decided in the discretion of the trial court, and its determination will not be disturbed unless a clear abuse of discretion is shown. Hurley v. Finley (1955), 6 Ill.App.2d 23; Hogan v. Ruby Construction Co. (1973), 13 Ill.App.3d 725.

After reviewing the record, we conclude the intervening petitioner’s rights as a landlord were adversely affected by the ruling of the trial court establishing the rent to be paid by the corporation. The intervening petitioner had a right to participate in the proceedings and protect her interests. We hold the court erred in failing to grant the intervening petitioner’s petition to intervene and direct the trial court consolidate all of the petitioner’s suits which are related to the principal action both by parties and subject matter.

For the reasons stated, the order denying the petition to intervene is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

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