text:
    Kaybill Corporation, Inc., et al., Plaintiffs-Appellees, v. John J. Cherne et al., Defendants-Appellants.
    (No. 57555;
    First District (3rd Division)
    November 7, 1974.

      Jerome Berkson, of Chicago, for appellants.
    William J. Nellis, of Chicago, for appellees.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiffs brought an action for a declaratory judgment to declare their rights as lessees of defendants’ property. Defendant Helen Cherne died subsequent to the execution of the lease. Her death was suggested, and the proceedings continued as to her son John Cherne, defendant herein. Defendant appeals from the judgment of the trial court declaring plaintiffs to be lessees for an additional term of 6 years, and entering judgment against defendant as to his forcible detainer proceedings.

In mid-November 1965, plaintiffs William Ellis and Catherine Ellis, his wife (Ellises), as lessees, entered into a written lease with the defendants, John Cherne and Helen Cherne, his mother, as lessors for the first floor of the premises at 10349 South Pulaski Road, Chicago, for use as a tavern. The lease was for a period of 6 years, commencing May 1, 1965, and provided a monthly rental of $200 for the first 3 years and $225 for the remaining 3 years. Paragraphs 7 and 10 of the rider attached to the lease provided:

“7. The lessee shall have the option of renewing the lease for an additional six years with a reasonable increase in rental.
10. The lessee must notify the lessor one month in advance of expire [sic] of lease.”

Kaybill Corporation, Inc., an Illinois corporation (Kaybill), was incorporated on April 12, 1965. Catherine Ellis and Diana Ellis, her daughter, were sole stockholders. A liquor license was obtained from the City of Chicago by the corporate Kaybill and conspicuously displayed on the wall. The tavern was operated by the Ellises and their daughter under the name of The Ellis Pub. Rental payments were made by the corporation. Defendant John Cheme lived in the building and spent four to five evenings each week in The Ellis Pub.

The Ellises testified that after the corporation was formed on or about April 15, 1965, they assigned the lease to Kaybill and tendered the assignment to Helen Cherne for written consent. Catherine Ellis testified that on or about April 15, 1965, she gave the lease and assignment to Helen Cherne and told her that the corporation was formed; and that after several days Helen Cheme handed the lease back to her with the alleged signatures of both Helen Cherne and John Cherne to the consent. John Cherne denied both signatures. A handwriting expert and the sister of John Cherne testified that the signatures were not genuine.

Defendant John Cherne testified that he had frequented The Ellis Pub four or five nights each week during the leased period and was aware of the location of the liquor license. He stated that he did not know that the license was held in the name of Kaybill. The Ellises testified that John Cherne knew of the existence of the corporation and had on several occasions discussed it, and that John and Helen Cheme were aware of the assignment of the lease to Kaybill.

• The Ellises further testified that during the latter part of April 1970, John Cherne approached them and demanded a $75 increase in monthly rental for the remainder of the original term of the lease; that the parties agreed to the increase, and John Cherne agreed that the rent for the period of the' option would be $300 per month; and that Catherine Ellis advised Cherne that she was exercising the option on behalf of the corporation at that time. Cherne denied having any conversation concerning the exercise of the option. He testified that he demanded an increase in rental for the year then remaining; that the Ellises agreed and made payments in the amount of $300 per month for such year, and that the Ellises had not attempted to exercise the option until he received a letter dated April 29,1971, from the Ellises’ attorney purporting to exercise the option for 6 years at a rental of $300 per month. Cheme further testified that in late April 1971, he sent a 1-year lease to the Ellises, providing for a rental of $300 per month. He testified that the lease had been rejected and that he knew Ellis would not sign it because of the option. Later, Cherne tendered a 6-year lease providing a rental of $650 per month which was rejected by the Ellises.

Kaybill, the corporate plaintiff, originally commenced this action on October 5, 1971, as assignee of the Ellises. On November 10, 1971, an amended complaint was filed wherein William and Catherine Ellis were joinéd as plaintiffs. The named defendants were John Cherne and Helen Cherne, his mother. The death of Helen Cherne in 1967 was suggested prior to the trial, and the proceedings continued as to John Cherne as the surviving joint tenant. A trial was had without a jury, and on December 20, 1971, the trial court entered the judgment order from which defendant has appealed.

The judgment order contained findings which provided substantially that:

3) Kaybill failed to sustain proof as to the consent to assignment of the lease, and that the consent is invalid but is not necessary, “or in the alternative, if” necessary, defendant is estopped to deny such consent;

4) defendant received an additional $75 per month from Kaybill for a total of $900 prior to May 1, 1971, and also May 1971 payment of $300 which constituted partial performance of an oral lease between Kaybill and defendant beginning May 1, 1971 and ending April 30, 1977, at a reasonable monthly rental fixed at $300, and that partial performance takes the transaction out of the Statute of Frauds;

5) “that in the alternative to the findings in [preceding] paragraph 4” the option agreement is enforceable by Kaybill against defendant, and specific performance may be ordered, reasonable rental being fixed at $300 per month;

6) “that in the alternative to findings in [preceding] paragraphs 4 and 5 above, if as a matter of law, consent to the assignment to Kaybill” is found necessary and is further found not given, “and if defendant * * # is not estopped from denying such consent,” then William Ellis and Catherine Ellis are found to have paid the additional $900 referred to above to defendant, and the Ellises are found to have made the May 1971 payment to defendant of $300, and said conduct is found to constitute partial performance of an oral lease between the Ellises and defendant, beginning May 1, 1971 and ending April 30, 1977, at a reasonable rental fixed at $300 per month, and that partial performance takes the transaction out of the Statute of Frauds;

7) “that in the alternative to the findings in [preceding] paragraph 6,” the court finds that the option is found enforceable by the Ellises against defendant, and specific performance may be ordered, reasonable rental being fixed at $300 per month.

The judgment order then ordered, adjudged and decreed in substance:

1) that an oral lease for the six-year period from May 1, 1971 to April 30, 1977, exists between plaintiffs Kaybill and defendant John Cherne for a monthly rental of $300 pursuant to all other terms and provisions of the May 1, 1965 lease between the Ellises and Cheme;

2) “that in the alternative, an extended lease exists” between plaintiff Kaybill and defendant Cheme for the six-year period at a reasonable rental fixed at $300 per month pursuant to the exercise of the option in the lease dated May 1, 1965;

3) “that in the alternative, an oral lease” for the six-year period exists between William Ellis and Catherine Ellis as lessees, and John Cherne as lessor, at a reasonable rental of $300 per month pursuant to all other terms and provisions of lease dated May 1, 1985;

4) “that in the alternative, an extended lease exists” between William Ellis and Catherine Ellis as lessees, and John Cherne as lessor, for the six-year period at a reasonable rental fixed at $300 per month pursuant to the exercise of the option in the lease dated May 1, 1965; and

5) that judgment be entered in favor of William Ellis and Catherine Ellis and against John Cherne and Helen Cherne as to the forcible entry and detainer action filed by the defendants.

On January 17, 1972, defendant filed a motion to vacate the order of December 20, 1971, and for a new trial. Thereafter, on January 31, 1972, defendant filed a supplement to the previous motion, therein alleging for the first time that Kaybill was involuntarily dissolved for failure to pay franchise taxes to the State of Illinois on December 17, 1968, being more than 2 years before commencing the present action, and that Kaybill was therefore incapable of maintaining this action. On February 3, 1972, plaintiffs filed a reply, attaching an order of that date which vacated the order of dissolution with the consent of the Attorney General of Illinois. On March 23, 1972, the trial court denied defendant’s motion to vacate. Defendant appeals from the orders of December 20, 1971, and March 23, 1972.

I.

Defendant initially maintains that Kaybill, a corporation, did not commence the action within 2 years after the date of dissolution as provided by statute (Ill. Rev. Stat. 1971, ch. 32, par. 157.94), and that the judgment in favor of a dissolved corporation is a nullity since there was no party plaintiff over whom the court could exercise jurisdiction, and that the order vacating the dissolution could not cure such defect.

We have consistently held that if a corporation which is delinquent in the payment of franchise taxes has started suit it may continue the prosecution of that suit by subsequent compliance with the statute. (Jorgensen v. Baker (1959), 21 Ill.App.2d 196, 157 N.E.2d 773; Sternberg Dredging Co. v. Estate of Sternberg (1953), 351 Ill.App. 514, 115 N.E.2d 557 (abstract opinion); Sheffield Steel & Iron Co. v. The Jos. Joseph & Brothers Co. (1925), 238 Ill.App. 45.) The test is whether or not the corporation had its corporate status restored before the expiration of the applicable statute of limitations. (Jorgensen v. Baker, supra.) An order vacating an order of dissolution retroactively restores the status of a corporation. It is as though the corporation were never under any legal disability. In the instant case, Kaybill was a de facto corporation, and the vacation of the order of dissolution was not to create a fraud or to raise a defunct corporation, but to prevent fraud. (Continental Illinois National Bank & Trust Co. v. University of Notre Dame Du Lac (1945), 326 Ill.App. 567, 63 N.E.2d 127.) The order vacating the order of dissolution was entered within the statutory time within which the corporation could have commenced the original declaratory judgment action, and at a time when the judgment herein had not yet become final. Therefore, Kaybill Corporation, Inc., having had its legal disability to sue removed and its legal capacity reinstated, was a proper party in whose favor a judgment could be entered.

II.

Defendant maintains that the declaratory judgment is too vague, uncertain, ambiguous and contradictory to constitute a declaration of rights. The purpose of a declaratory judgment is to settle and fix rights of the parties. (La Salle Casualty Co. v. Lobono (1968), 93 Ill.App.2d 114, 236 N.E.2d 405.) In City of Quincy v. Sturhahn (1960), 18 Ill.2d 604, 610, 165 N.E.2d 271, the court stated that the declaratory judgment should finally and effectively decide the rights of parties on the issues presented and terminate the entire controversy between them in order to comply with the provisions of the declaratory judgment statute (Ill. Rev. Stat. 1971, ch. 110, par. 57.1), noting:

“However, no technical form is prescribed for a declaration of rights in a suit for declaratory judgment, * * * as long as the court actually passes upon or adjudicates the issues raised by the pleadings.”

(See also Chicago Division Illinois Education Association v. Board of Education (1966), 76 Ill.App.2d 456, 222 N.E.2d 243; and Burgard v. Mascoutah Lumber Co. (1955), 6 Ill.App.2d 210, 127 N.E.2d 464.) A declaratory judgment is governed by the same rules affecting the rendition and entry of any judgment at law or in equity (Freeport Motor Casualty Co. v. Tharp (1950), 406 Ill. 295, 300, 94 N.E.2d 139), and must designate the parties for and against whom it is rendered or it will not be a valid final judgment. (Hanaman v. Davis (1959), 20 Ill.App.2d 111, 155 N.E.2d 344.) A judgment must represent the ultimate and precise determination, and in substance it must show distinctly, and not inferentially, that the matters in the record have been finally disposed of in favor of one of the litigants, or that the rights of the parties have been finally adjudicated. Pertolanitz v. Chicago Transit Authority (1963), 44 Ill.App.2d 256, 266, 194 N.E.2d 501; 23 I.L.P. Judgments § 21 (1956).

As a general rule, a judgment should not be in the alternative except pursuant to a special statute or in actions for recovery of property. (Pickering v. Pickering (1959), 111 Ohio. App. 458, 173 N.E.2d 156; State v. Ellis (Maine Sup.Jud.Ct. 1971), 272 A.2d 357; 49 C.J.S. Judgments § 74, at 193 (1947).) A judgment in the alternative renders it entirely ineffectual as a declaration of rights or as an adjudication upon the same set of facts. Auxiers Executrix v. Theobald (1934), 255 Ky. 583, 75 S.W.2d 39.

In Department of Public Works & Buildings v. Gieseking (1969), 108 Ill.App.2d 105, 246 N.E.2d 707, upon review of a seemingly vague and uncertain judgment for the plaintiffs, the court declined to remand the case for a new trial, and examined the record to determine if the verdict was sufficient to sustain the judgments, stating at page 109:

“The general rule is that a judgment must designate the parties for and against whom it is rendered or it will not be a valid final judgment. [Citation.] We do not condone entry of a purported judgment which does not meet that requirement; the parties are entitled to know precisely the status of the matter and where they stand, without searching the record, once the issues have been determined. Even assuming the judgments here to be defective, on such bases we would not remand for a new trial, and if the verdict is sufficient to sustain the judgments we could affirm the lower court proceedings, granting leave to the State to move for a proper judgment on the verdicts [citation], or in the alternative could exercise our appellate and supervisory powers, (Supreme Court Rule 366(a)), to correct any technical deficiencies observed in the lower court. While the appellants may have been inconvenienced by the procedure followed, we fail to comprehend how they have in any way been prejudiced.”

In the instant case, the issues have been passed upon by the trial court and judgment was rendered solely against defendant but in favor of plaintiffs, albeit alternatively for the Ellises and Kaybill. The adjudication creates an ambiguity and fails to precisely designate the party for whom the judgment is rendered or the status and legal relationship of the parties. Two possible lessees and distinct tenancies of the same premises for the same term are established. However, if the record sustains any of the alternatives, we need not remand for new trial but will exercise our supervisory power to correct any deficiency in the judgment pursuant to Supreme Court Rule 366(a)(5) (Ill. Rev. Stat. 1973, ch. 110A, par. 366(a)(5)).

III.

Defendant contends that the trial court erred in finding an oral lease for a further 6-year term and that partial performance did not take it out of the Statute of Frauds (Ill. Rev. Stat. 1971, ch. 59, par. 2). The trial court found that defendant received additional payments of $900 prior to May 1,1971, and also the May 1, 1971 payment of $300, and that said conduct constituted partial performance to take the transaction out of the statute.

The doctrine of part performance can be invoked to remove an oral lease from the operation of the Statute of Frauds. (Johnston v. Messinger (1922), 226 Ill.App. 397.) Possession must be continuous; taking possession and making improvements is sufficient, but the improvement must be made under the lease relied upon, and must be both valuable and permanent. (Meyer v. Surkin (1931), 262 Ill.App. 83.) However, the possession of a tenant who holds a written lease is referrable to that lease rather than to a subsequent parol lease. (Koch v. National Union Building Association (1891), 137 Ill. 497, 27 N.E. 530.) In Koch, the court stated at page 501:

“[I]t has been repeatedly held, that it is not sufficient that the party is in possession, but it must affirmatively appear that he got possession under the agreement relied on, and in part performance of the same, and it must also distinctly appear that the money was expended or improvements made under the contract of sale, and not otherwise.”

The mere continuance in possession, acquired or held under some other contract or right, is referrable to such contract or right, and therefore does not constitute such part performance as will take the oral contract of lease out of the operation of the Statute of Frauds. (Morrison v. Herrick (1889), 130 Ill. 631, 22 N.E. 537.) In Spalding v. Conzelman (1860), 30 Mo. 177, the court held that the mere payment of additional rent, where an agreement for a new lease is set up, is a circumstance of little importance, inasmuch as it may be referred to a year-to-year holdover after the expiration of the old lease or to other inducements to its payment. In the instant case, the Ellises testified to various initial capital improvements made prior to the alleged oral agreement of April 1970, which clearly were not made in reliance on such agreement. Plaintiffs testified that they subsequently invested in an ice machine costing $1200, but conceded that it was a removable fixture. The additional payments of $900 were made during the last year of the original lease and would be attributable to the written lease and not to the new oral lease claimed by plaintiffs. In Anderson v. Collinson (1939), 300 Ill.App. 22, 20 N.E.2d 980, the lessee claimed an oral agreement for successive 1-year renewals of the original written 1-year lease.- Lessee purchased rye or seeding, sowed 15 acres and plowed another 20 acres of the leased property in reliance upon the oral lease. The court held that the same constituted sufficient part performance to avoid the statute.

The part performance in the instant case does not take the within oral lease out of the statute. Plaintiffs’ reliance upon Haggen v. Burns (1956), 48 Wash. 2d 611, 295 P.2d 725, and Latses v. Nick Floor, Inc. (1940), 99 Utah 214, 104 P.2d 619, is not justified, the cases being distinguishable on their facts. Paragraphs 1 and 3 of the judgment rendered in favor of plaintiff Kaybill and, in the alternative, in favor of plaintiffs Catherine and William Ellis, on the basis of the existence of an oral lease, are reversed.

IV.

Defendant next contends that the trial court erred in entering paragraphs 2 and 4 of the judgment alternatively for the plaintiffs, based upon the finding that the renewal option in the original lease was exercised.

In Schumacher v. Fatten (1958), 18 Ill.App.2d 387, 392, 152 N.E.2d 402, the court observed that the lease was drawn by the lessor, as in the instant case, and cited the following with approval:

“‘[T]he provisions of a lease should be most strongly construed against the lessor * * *’ [and] [a] general covenant to renew a lease is sufficiently certain to be enforceable and implies an additional term for the same period as the original lease and at the same rent.”

The general rule in construing provisions of a lease relating to renewals as to any ambiguity is that the tenant and not the landlord is favored. Launtz v. Kinloch Telephone Co. (1925), 239 Ill.App. 204, 208.

Initially, defendant argues that there was never any actual exercise of the option by plaintiffs. Catherine Ellis testified that in the conversation she and her husband had with defendant Cherne in April 1970, the option to renew was exercised on behalf of Kaybill. Both she and her husband, William Ellis, testified that they had assigned the lease to Kaybill. William Ellis also testified that in the April 1970 conversation the option was exercised. In evidence is a letter dated April 29, 1971, to defendant John Cherne from an attorney for the Ellises stating that he was enclosing a notice executed by his clients exercising the option to renew for an additional 6 years from May 1, 1971, together with the initial month’s rent of $300. Also in evidence is the undated notice signed by the Ellises to defendant John Cherne exercising their option to renew. However, William Ellis testified that at the time of the letter and notice he did not tell his attorney that the business was being operated by Kaybill Corp. His testimony is not inconsistent with that of his wife who stated that the option was exercised in April 1970 on behalf of Kaybill. There is sufficient evidence to sustain the finding that the option was exercised by Kaybill but there is insufficient evidence to sustain the finding that the option was exercised by the original lessees, William and Catherine Ellis, in their own behalf.

Defendant next argues that there did not exist an effective assignment of the lease from the Ellises to Kaybill. A covenant against assignment without the lessors consent is for the benefit of the lessor alone and may be waived by his subsequent inconsistent conduct amounting to an estoppel. (Wohl v. Yelen (1959), 22 Ill.App.2d 455, 461, 161 N.E.2d 339.) In the instant case, Mrs. Ellis testified that both she and her husband executed the form assignment on the reverse side of the original lease to Kaybill; that they tendered the assignment to Mrs. Cherne for the consent of the lessor, and that she received the document a few days later with the purported signatures of John and Helen Cherne. The trial court found that there was insufficient evidence to establish the signature of Helen Cherne.

In Clark v. Hoering-Buchholz Co. (1929), 254 Ill.App. 60, 62, the court found that the lessor accepted rent from the purported assignee after the assignment of the lease and that such action constituted waiver of the alleged forfeiture. In Watson v. Smith (1913), 180 Ill.App. 289, 293, the court determined that the assignee of the lessee took open possession of the premises and paid rent directly to the lessor, and held that the receiving of the rent under those circumstances gave implied consent and constituted waiver of the provisions of the lease prohibiting an assignment without consent. See also Webster v. Nichols (1882), 104 Ill. 160.

In the instant case John Cherne did not deny seeing the alleged assignment to Kaybill, but did deny that he and his mother signed the consent appearing thereon. He testified that for a period of 4 or 5 years he spent 4 to 5 evenings each week in The Ellis Pub. The liquor license which was issued in the name of Kaybill was displayed conspicuously on the wall above the bar. Defendant received payments of rent from Kaybill. Mrs. Ellis testified that she and her husband often discussed the Kaybill Corporation with the defendant. The assignee, Kaybill, took and was in open possession of the premises and made payments of rent directly to the defendant. Under the circumstances, the receipt of rent from the assignee constitutes a waiver of the lessors right of forfeiture on the ground that the assignment was made without the lessor’s written consent as provided in the lease. (Johnson v. Hotel Lawrence Corp. (1929), 337 Ill. 345, 349, 169 N.E. 240.) Since an assignment of a lease by the lessee carries with it a clause giving the lessee the option to renew the lease, as well as all other clauses in the original lease, Kaybill could, have effectively exercised the option to renew through the Ellises. (Sutherland v. Goodnow (1884), 108 Ill. 528, 534.) The trial court properly found that defendant Cherne waived the forfeiture provision and the written consent to assignment and was estopped to deny the validity of the assignment.

Defendant next argues that the option to renew is too vague and uncertain to be enforceable, relying upon Streit v. Fay (1907), 230 Ill. 319, 82 N.E. 648. In that case the lease provided that the lessee had the “privilege of 5 years longer, he paying additional rent on revaluation now fixed at $500.” The supreme court held that the provisions were too vague and indefinite to constitute a valid covenant for renewal in that no provision was made as to when or how the revaluation should be determined.

In the instant case, the option provides “for an additional 6 years with a reasonable increase in rental.” Its validity depends upon whether or not it fixes a sufficiently definite standard or method for determination of the rental. The facts herein are distinguishable from the case of Sterenberg v. Beach (1920), 219 Ill.App. 68, which held that the provision “the lease to be extended if both parties agree” was too vague and indefinite to constitute a valid covenant for renewal since it is only in case the parties evidence their ability to agree to renew that there can be such a renewal. Here, however, the trial court has found that the parties had agreed and that the lease provided “a reasonable increase.” In Edwards v. Tobin (1930), 132 Ore. 38, 284 p. 562, the Supreme Court of Oregon held a similar renewal provision enforceable as providing a sufficiently definite standard or method for the determination of rental. The court there stated that it was not making a new agreement in determining what is “reasonable” but rather was compelling that which was plainly contemplated by the parties. In Playmate Club, Inc. v. Country Clubs, Inc. (1970), 62 Tenn. App. 383, 462 S.W. 2d 890, the Court of Appeals of Tennessee went considerably farther in holding a renewal clause in a lease leaving only the rent to be fixed by agreement, to imply a reasonable rental figure — a figure which can be ascertained with reasonable certainty, thus meeting the test of “definiteness” — and that such a renewal clause is valid and enforceable. Accordingly, the option in the instant case, in providing for a reasonable increase in rental, sets forth a sufficiently definite standard to determine the rental, and is not vague or uncertain.

Defendant next argues that the option agreement makes no provision for the manner or form of the notice of the intent to renew. In Cusack v. The Gunning System (1903), 109 Ill.App. 588, a lease of a building wall for advertising purposes granted the privilege of renewal on like terms but did not provide for any notice. The lease expired on Sunday; lessee appeared on Saturday but the office of the lessor was closed. On Monday, the next business day, he again appeared to request renewal, which the court there held to be sufficient. Where notice is required by a contract and nothing is said as to the manner of notification, it has been held that it may be made by parol. (66 C.J.S. Notice § 16, at 656 (1950).) In Anderson v. Dodsworth (1920), 292 Ill. 335, 338, 127 N.E. 43, a lease granted lessee a privilege of extending the lease without providing for the notice to be given to the landlord. The court there stated that for the lessee to avail himself of the option to extend, it was necessary to give notice in some way of his election during the original term. In Butz v. Butz (1973), 13 Ill.App.3d 341, 299 N.E.2d 782, the court considered a lease which contained an option to renew and contained no statement of the time or method of renewal. In finding that no notice whatsoever had been given, the court cited with approval Vincent v. Laurent (1911), 165 Ill.App. 397, which held that where the lessee has an option to renew a lease he should notify the lessor before the time expires, whether he elects to renew. The facts in the instant case are similar to those in Darling v. Hovan (1884), 53 Mich. 599, 19 N.W. 545, where the court held that inasmuch as there was no agreement in the lease as to whether the notice was to be oral or in writing, it might be shown either way, the same as any other fact not required to be in writing, and that there was no necessity for any formal tender of either lease or written notice. The court stated that the law never requires useless formality under such circumstances unless expressly required by the language of a statute or the agreement of the parties or when the same is made the basis of some substantial proceeding in the attainment of justice. We have heretofore held tire option to renew to be valid and enforceable as a covenant. The manner of exercising the option was not specified; nevertheless, there is sufficient evidence that the option was exercised on behalf of Kaybill by the Ellises during the April 1970 conversation with defendant Cherne.

Defendant, however, finally argues that the testimony of plaintiffs that they exercised the option to. renew in their conversation of April 1970 with defendant Cherne is an attempt by parol to alter and vary the terms of the written instrument in violation of section 2 of the Statute of Frauds. (Ill. Rev. Stat. 1971, ch. 59, par. 2.) Where the extended term of the lease is fixed in the original lease and comes into existence by the exercise of the option and the giving of the required notice, lessee holds for the extended term by virtue of the original lease which is in writing and satisfies the statute. (Fuchs v. Peterson (1925), 315 Ill. 370, 146 N.E. 556.) This rule may apply even where the notice of intention to exercise the option is verbal. (Economy Stores, Inc. v. Moran (1937), 178 Miss. 62, 172 So. 865, 866, 37 C.J.S. Frauds, Statute of, § 113, at 606 (1943).) Inasmuch as the instant written lease provides for its renewal for an additional term at the option of the lessee, the exercise of the option is not affected by the statute. The proof of conversations did not alter or vary the terms of the original lease.

V.

Defendant next contends that the trial court arbitrarily fixed the rental at $300 per month for the extended lease for the period from May 1, 1971 to April 30, 1977, without any hearing as to reasonableness and contrary to the evidence. Plaintiffs in their amended complaint alleged that $75 per month increase is a reasonable increase. Defendant in his answer admitted offering a 1-year lease at a rental of $300 per month, and admits that he considered $75 a reasonable increase for that period of time. Defendant did not expressly deny the reasonableness of a $75 increase per month for a total of $300 per month, for the 6-year option term. The only evidence offered by defendant that $300 was not reasonable was a 6-year lease providing for a $650 per month rental which defendant tendered to plaintiffs some four months after the expiration of the original 6-year period of the lease. The Ellises testified that during the April 1970 conversation with defendant Cherne they agreed to pay $300 per month, being an increase of $75 per month, for the remaining 1 year of the original term, in consideration of defendant Cherne’s agreement that the rental during the renewal term would be $300 per month. The trial court saw fit to believe the testimony of the Ellises concerning the reasonableness of the monthly rental and the agreement of the parties for the option renewal term. The payment and receipt of the increased rental during the remainder of the original term substantiates the agreement reached by the parties that $300 per month would be the rental for the option renewal term. The trial court was not required to conduct a further hearing as to reasonableness of the increase of rental for the option term if it believed the testimony of the Ellises and the evidence established that defendant Cherne had agreed to the sum of $300 in April of 1970. While defendant denied such agreement, the trial court so found. The trier of fact has had the opportunity to observe the demeanor of the witnesses and has determined the testimony of the Ellises to be more credible than that of Cherne. (Hill v. Meister (1971), 133 Ill.App.2d 678, 273 N.E.2d 643.) We cannot say that the findings of the trial court as to the reasonable increase of rental are palpably contrary to the manifest weight of the evidence. Swan v. Allstate Insurance Co. (1967), 89 Ill.App.2d 205, 213, 232 N.E.2d 491.

VI.

Finally, defendant contends that plaintiffs are chargeable with knowledge that the signatures of John Cherne and Helen Cherne appearing on the consent to assignment were forgeries and that plaintiffs should be precluded from any equitable relief by the doctrine of unclean hands. Defendant relies on Wilson-Broadway Building Corp. v. Northwestern Elevated R.R. Co. (1922), 225 Ill.App. 306, and Blount v. Chicago Railway Equipment Co. (1926), 242 Ill.App. 69, to support his argument that equity will not aid a person in the preservation of his rights without a showing that he is in lawful possession of such rights.

The maxim that he who comes into equity must come with clean hands has no application where the facts do not show a case of unclean hands. (See Western-United Dairy Co. v. Nash (1937), 293 Ill.App. 162, 164-165, 12 N.E.2d 47.) Upon a proper showing, the equitable doctrine would preclude relief. An examination of the record does not disclose any evidence to indicate that the plaintiffs had any knowledge or in any way caused a forgery of the signatures of John Cherne or Helen Cherne. Defendant has not designated any evidence to justify a finding of forgery by the Ellises, and our review of the record has disclosed none.

The testimony related only to the question of whether the signatures were those of the purported signers. The trial court stated that possibly the lessees were under a belief that the consent had been signed by somone who was authorized, adding, “I am not convinced that Helen Cherne signed it. Therefore, I hold as a question of fact, not that there is a forgery, but I simply say that they have not maintained their burden of proof.” In ruling on the defendant’s post-trial motion, the trial judge again stated: “I expressly held and reaffirm that holding that there is no proof that the plaintiffs forged anything * * *.” The finding is not contrary to the evidence. Therefore, the doctrine of unclean hands can have no application.

VII.

No question has been raised or argued on appeal as grounds to reverse paragraph 5 of the judgment entered in favor of William Ellis and Catherine Ellis and against John Cheme and Helen Cherne as to the forcible entry and detainer action filed by defendant. That paragraph of the judgment is therefore affirmed. See Flynn v. Vancil (1968), 41 Ill.2d 236, 242, 242 N.E.2d 237.

Plaintiffs, in their answering brief and by separate motion in this court, have moved for dismissal of this appeal. As grounds, plaintiffs have urged that defendant by voluntary and continued acceptance of the benefits of the judgment order entered by the trial court has forever waived and released all claims of error and is estopped from maintaining this appeal. The motion was taken with the appeal. However, in light of the preceding discussions, it is not necessary to further consider the question.

In our judgment, predicated upon a review of the record, we believe the evidence is sufficient to sustain and to affirm paragraph 2 of tire judgment of the trial court that an extended lease exists between Kaybill Corporation as lessee, and John Cheme as lessor, for the 6-year period from May 1, 1971 to April 30, 1977, at a reasonable rental fixed at $300 per month, pursuant to the exercise of the option in the original lease dated May 1, 1965, between John and Helen Cheme and William and Catherine Ellis.

Accordingly, paragraph 2 of the judgment declaring an extended lease with Kaybill and defendant for the 6-year term at a rental of $300, and paragraph 5 of the judgment as to the forcible entry and detainer action are affirmed. Paragraphs 1, 3 and 4 of the judgment stated in the alternative are reversed.

Affirmed in part; reversed in part.

DEMPSEY and McGLOON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE EBERSPACHER

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. James Allen Buckholz, Petitioner-Appellant.
    (No. 72-204;
    Fifth District
    November 7, 1974.

      Robert Farrell, of Mt. Vernon, and Allen L. Wiederer, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (Raymond F. Buckley, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the petitioner, James Allen Buckholz, from an order entered by the circuit court of Madison County denying petitioner’s request for post-conviction relief after an evidentiary hearing.

The petitioner was indicted for murder in the circuit court of Madison County. At his arraignment Austin Lewis, Public Defender of Madison County, was appointed to represent him. On November 13, 1961, petitioner appeared in trial court with his attorney and entered a plea of guilty. Counsel for the petitioner informed the trial comt that he had explained to the petitioner his right to a trial and the punishment if found guilty. The trial court, after thoroughly admonishing the petitioner of his right to a trial and of the consequences of his plea, accepted the plea of guilty, adjudged him guilty of murder, and, after a hearing in aggravation and mitigation, sentenced the petitioner to life imprisonment in the penitentiary. The petitioner perfected a writ of error pro se to the supreme court. (People v. Buckholz, 32 Ill.2d 482, 484, 207 N.E.2d 451, 452.) The supreme court summarized the petitioners contention in the following manner:

“Defendant contends he was coerced into pleading guilty because the prosecution had a confession which would insure defendant’s conviction. He further contends that the confession was made after his request to consult with counsel was refused, and he urges the applicability of Escobedo v. State of Illinois, 378 U.S. 478, 12 L.Ed.2d 977, 84 S.Ct. 1758.”

The petitioner did not raise any contention with respect to the incompetency of his appointed counsel. The supreme court affirmed petitioner’s conviction by stating:

“The mere fact that the prosecution had in its possession an incriminating statement is not grounds for reversal of a conviction where defendant, with the assistance of counsel, knowingly and understandingly waived his right to a trial and pleaded guilty.” 32 Ill.2d 482, 484, 207 N.E.2d 451, 453.

On December 31, 1970, the petitioner filed a pro se petition seeking post-conviction relief alleging that his plea of guilty was involuntary and that his rights were violated because he was not afforded a competency hearing prior to his plea. The petitioner did not raise any contention with respect to the incompetency of his appointed counsel. The petitioner also filed a “motion” requesting appointment of counsel other than the public defender. Although the record is unclear, apparently the public defender was appointed to defend the petitioner, since on January 26, 1971, it filed a motion to withdraw as petitioner’s counsel on the ground that the petitioner did not want to be represented by that office. Notwithstanding its motion to withdraw as counsel the public defender office filed a motion seeking leave to file further post-conviction pleadings, which motion was allowed. In a lengthy letter to the petitioner, dated September 15, 1971, an assistant public defender expressed his "reluctant conclusion that the points you [the petitioner] asked to be raised are not well founded” and then gave the factors and reasons upon which he based this conclusion. In response to above letter, the petitioner, in a letter dated September 24, 1971, requested “the ‘entire’ Public Defenders Office of Madison County, Illinois to withdraw from my case.” On April 17,1972, the public defender office through one of its counsel filed an amendment to petitioner’s post-conviction petition. Therein, for the first time, it was aHeged that petitioner’s appointed trial counsel was incompetent.

On May 3, 1972, an evidentiary hearing was conducted on the petitioner’s post-conviction petition and the amendment thereto. At the commencement of the evidentiary hearing the following coHoquy occurred:

“THE COURT: I notice in the file some questions about counsel.
You, Mr. Weber, did or did not formally withdraw? There was a motion to withdraw stating that you had some difficulties or differences of view with Mr. Buckholz personaHy as to the sufficiency of the allegations of the petition, is that correct?
MR. WEBER: Yes, Your Honor.
THE COURT: And a motion to withdraw was filed which I have in the file. I believe Mr. Buckholz had responded to your advising him, a copy of your letter to him is in the file stating fuHy your views regarding contentions in the petition, right?
MR. WEBER: That is correct, Your Honor.
THE COURT: Then what was your position on that, Mr. Buckholz? You needn’t answer, you may confer with counsel or take any position you like on this.
MR. BUCKHOLZ: In regard to counsel’s answer to Your Honor upon request my legal counsel did withdraw his withdrawal from the case.
THE COURT: You want to retain Mm as counsel?
MR. BUCKHOLZ: Absolutely, Sir.
THE COURT: You do want to keep him as counsel?
MR. BUCKHOLZ: Yes, Sir.
THE COURT: I see. All right. I think the record also indicates he came down to the penitentiary and conferred with you?
MR. BUCKHOLZ: Yes.
THE COURT: Was that satisfactory?
MR. BUCKHOLZ: Yes, Sir.
see
THE COURT: Any conflict with Mr. Weber at tMs time?
MR. BUCKHOLZ: Oh, no, Sir.
THE COURT: That is what I wanted to know. A lot of us have differences of opinion as to whether something is going to work, something is going to be effective, and we might as weH be realistic about it.
MR. BUCKHOLZ: Your Honor, if I may, I did ask Mr. Weber about going into conflicts with my former lawyer in this case who is deceased. For want of a better word he had qualms about it, and I would request the court to assist counsel to ask certain pertinent questions.
THE COURT: All right. Does this put this matter in proper perspective arid on the record?
MR. WEBER: Yes.
THE COURT: You do want to keep Mr. Weber?
MR. BUCKHOLZ: Absolutely, Sir.
THE COURT: All right. Let’s proceed.”

Following the presentation of evidence and closing arguments of counsel the trial court announced its decision and reasons therefor, which included, among other things, the following statement:

“On the whole subject I think the defendant presents a very disarming presentation, more or less admitting his guilt and standing on these very subtle matters in a very skillful presentation. But I am unable to say his constitutional rights have been violated, and he has failed to sustain his burden of proof, or to make a well taken case under the Post Conviction Act.”

The sole issue raised in this appeal is whether the trial court erred in appointing the public defender office to represent the petitioner in post-conviction proceedings where the petitioner alleged that the public defender who represented him at the time of his conviction was incompetent.

There exists a general rule that where an appeal is taken from a conviction the judgment of the reviewing court is res judicata as to all issues actually raised, and that those issues that could have been presented but were not, are deemed waived. (People v. French, 46 Ill.2d 104, 262 N.E.2d 901; People v, Derengowski, 44 Ill.2d 476, 256 N.E.2d 455; People v. Hamby, 39 Ill.2d 290, 235 N.E.2d 572; People v. McCarty, 17 Ill.App.3d 796, 308 N.E.2d 655.) As with most general rules there are exceptions to the foregoing rule. In People v. Rooney, 16 Ill.App.3d 901, 903, we affirmed the trial court’s dismissal of the petition for post-conviction relief, but in so doing we noted that:

“* 6 * the doctrine of waiver should not bar issues from consideration under the Post-Conviction Hearing Act where the failure to raise them on appeal was due to the incompetency of counsel. People v. Frank, 48 Ill.2d 500; People v. Brown, 39 Ill.2d 307.”

Nevertheless, this exception to the general rule of waiver is inapplicable in the instant case since the appeal (writ of error) was prosecuted, not by incompetent counsel but by the. petitioner pro se and, therefore, the failure to raise incompetency of petitioner’s trial counsel was petitioner’s own error and cannot be blamed on the incompetency of counsel.

Even if we were to assume under the doctrine of fundamental fairness that the doctrine of waiver should not bar from our consideration the charge of incompetency of petitioners appointed trial counsel, we are compeHed, under the facts herein present, to reach the same result. In the instant case we are not confronted with a situation where the petitioner was denied an evidentiary hearing, nor are we confronted with a situation where the public defender failed to act diligently. The public defender communicated with the petitioner by letter and in person. In addition the public defender filed an amendment to petitioner’s pro se petition.

It is the petitioner’s sole contention that it was error for the trial court to appoint the public defender since there was a potential conflict of interest, and yet it was an assistant public defender who, for the first time, raised the issue of incompetency. The petitioner did not raise the issue in either his pro se writ of error or in his pro se petition for post-conviction relief. It is also noteworthy that the trial court, at the conclusion of the evidentiary hearing on petitioner’s post-conviction petition, commented upon the “skillful presentation” by the petitioner. Furthermore, the petitioner, at the commencement of the evidentiary hearing, responded affirmatively and unequivocally to the court’s inquiry, “You want to keep him [the public defender] as counsel?” not once, but three times, thereby waiving his objection to the pubfic defender. Our review of the record fads to reveal any lapse in the public defender’s advocacy due to possible conflicts or “qualms” about raising the issue of incompetency of a previous member of the same office who was deceased at the time his incompetence was first alleged nor does the petitioner call to our attention any such instances, either specific or general.

While we acknowledge the general rale that where a public defender, appointed to defend a defendant at his trial, subsequently is alleged to be incompetent that counsel other than the public defender should be appointed to represent defendant in his request for post-conviction relief (People v. Wallace, 14 Ill.App.3d 18, 302 N.E.2d 140; People v. Gray, 4 Ill.App.3d 934, 282 N.E.2d 189), we find that the unique combination of facts herein present taken with the trial judge’s findings set forth at length in appellant’s brief place the instant case beyond the intended perimeters of the general rule.

We, therefore, do not consider that denial of the post-conviction relief sought was error, and affirm.

Order affirmed.

G. MORAN, P. J., and CARTER, J., concur.


author: Mr. JUSTICE CREBS

text:
      In re Mark C. Brewer et al., Minors.
    (No. 74-48;
    Fifth District
    November 22, 1974.

      Dale A. Allison, Jr., State’s Attorney, of Mt. Carmel, for the People.
    Woodcock & Hux, of Mt. Carmel, for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal by the State from an order of the Circuit Court of Wabash County granting a motion to suppress evidence and dismissing a petition for adjudication of wardship against 13 minor defendants. The petition alleged that the minors were delinquent in that on October 26, 1973, they were found to be in unlawful possession of more than 2.5 grams of cannabis. The question posed is whether their arrest and the search and seizure of evidence were unreasonable and in violation of their constitutional rights.

It appears that on the night in question the son of the Mayor of Mt. Carmel and a group of teen-age friends were in an upstairs room over the mayor’s garage adjacent to his house which had been fixed up and used as a clubroom. At about 9:30 P.M. the police arrived and based on their observations all of the minors were arrested, taken to the station and charged. The events leading up to the arrest and search were recounted by a number of officers at the hearing on the motion to suppress.

Deputy Murphy testified that he was patrolling the neighborhood for possible vandalism. As he approached the alley behind the mayor’s house he noticed a boy and a girl get out of a station wagon and start toward the garage, but when they saw him they returned to their car and left. Suspicious, he circled the block and came back. This time he saw four or five youngsters run into the garage. Thinking there might be some vandalism he immediately radioed for assistance and then stood in front of the open garage door until other officers arrived. He stated that he knew the mayor had three minor sons and that the youngsters he saw could have been members of the family. He admitted that he did not see any acts of vandalism and that he had no reasonable grounds to believe any crime had been committed.

Officer Lockhart testified that he and Officer Singer responded to Murphy’s call. He stated that he thought if vandalism was taking place it would probably be on the car, so they entered the garage and, using flashlights, they looked around. They found nothing out of line but when he heard some shuffling as if someone were walking on the floor upstairs he walked over to the stairway. Looking up he could see lights and he heard music. He then went on up the stairs and at the top he saw a bunch of youngsters sitting around a table. There was a haze of smoke and on the table were a number of beer cans. He asked Officer Singer to stand there while he went to the house to talk to the mayor, The mayor was not at home so he returned and proceeded to take the names and addresses of all the boys and girls. On cross-examination he stated that he knew the mayor had three teen-age sons and that they used the upstairs of the garage as a club house. In fact, he had been by there previously when the son here involved had had a party. He stated that no one had asked him into the garage or the club, he did not have an arrest or search warrant, he had no report of a crime being committed, and he did not see any crime nor any vandalism.

Officer Singer’s testimony was substantially the same as Lockhart’s. He too heard music from upstairs, and he followed Lockhart up the steps. He saw the smoke which smelled like cannabis to him, and while Lockhart was gone he looked around. He noticed some beer cans on the floor, a disassembled pipe, some straws cut in two with some substance in them and under the table he found some cellophane sandwich bags with some brown stuff and pills in them. On cross-examination he stated that he had investigated several vandalisms in the city before but the last one had been a month and a half ago. On this night he had seen no vandalism, he had no invitation to enter the premises, and he had no reason to suspect that a crime was being committed.

The chief of police testified that since it was near Halloween he had beefed up his patrols to protect against soaped windows and the breaking of light bulbs. He had previously assigned a couple of deputies to watch the mayor’s house because of rumors of a possible fire bombing, but that had been for only 4 or 5 days the previous July. As far as vandalism was concerned the mayor had never reported any.

The State does not dispute the fundamental rule that the lawfulness of a warrantless arrest and search is dependent upon whether the officers had reasonable or probable grounds to believe that a crime had been or was being committed and that the person to be arrested committed it. (People v. Brown, 38 Ill.2d 353; People v. Henneman, 373 Ill. 603.) From this rule and the facts involved the State argues, however, that the officers had a right to enter upon the private premises of the mayor because, having knowledge of the possibility of vandalism, they had a responsibility to investigate further and meet the challenging situation which confronted them. (People v. Jones, 31 Ill.2d 240.) In addition, since the police must often act with a quick appraisal of the data before them, the reasonableness of their conduct must be judged on the basis of their responsibility to prevent crime and catch criminals. People v. Brown, 38 Ill.2d 353; People v. Watkins, 19 Ill.2d 11.

Thus we have posed the frequently recurring question of what takes precedence, the interest of the public in the suppression of crime or the constitutional security of an individual against unreasonable search and seizure. The answer obviously depends upon whether the police under the circumstances of a given case acted reasonably, for though the suppression of all crime is to be desired, yet the very purpose of the constitutional guarantee was to place obstacles in the way of a too-permeating police surveillance, thereby subjecting a free people to an even greater danger than the escape of some criminals. United States v. Di Re, 332 U.S. 581, 92 L.Ed. 210, 68 S.Ct. 222.

The United States Supreme Court in Henry v. United States, 361 U.S. 98, 4 L.Ed.2d 134, 80 S.Ct. 168, stated that while a completely satisfactory and inflexible definition of what constitutes reasonable grounds is not possible to formulate, it is generally agreed that reasonable grounds, or probable cause, exists if the facts and circumstances known to the officer would warrant a prudent and cautious man in believing that the person arrested was guilty of an offense. Also, reasonable cause means something less than evidence which would result in a conviction (People v. La Bostrie, 14 Ill.2d 617), but mere suspicion, common rumor or report do not afford probable cause. (People v. Pitts, 26 Ill.2d 395.) Nor is the legality of a search to be determined by its results. Johnson v. United States, 333 U.S. 10, 92 L.Ed. 436, 68 S.Ct. 367.

Applying these standards to the facts before us, we agree with the trial court that, given the circumstances faced by the officers here, there was no probable cause or reasonable grounds for the arrest, the search, or even the entry upon the mayor’s premises. The State argues justification for the entry based upon the belief of the police that vandalism had or was about to occur. But the officers themselves testified specifically that they had no report of vandalism, did not see any vandalism, and had no reason to believe that any crime was being committed. One officer merely saw a boy and a girl get back in their car after they saw him, and then he observed four or five youngsters run into the garage. He knew the mayor had three minor sons and admitted that the youngsters he saw could have been members of the family. He then stood in front of the open garage door until his radio call for assistance was answered but he heard nothing suspicious or unusual in the meantime. The two officers who came also knew the mayor’s family and were aware of the fact that they used the upstairs of the garage as a clubroom, and one of the officers had even been by the garage personally when the son involved here had had a party in the clubroom. At this point there were no grounds whatsoever to enter the garage, but they did, and with flashlights determined that their suspicion of vandalism was wholly unfounded. Nonetheless and in spite of the fact that they heard music from upstairs, which was hardly a harbinger of crime, they proceeded to mount the stairs. It was only then that one of the officers saw smoke which he believed smelled like cannabis.

From these facts we can see no challenging situation confronting the officers, nor any reason whatsoever that might trigger a need for quick action to prevent a crime or catch a criminal. Rather, it would appear that they were motivated by curiosity more than anything else, and, as such, their invasion of private property was a patent violation of the constitutional rights of the mayor’s son and his teen-age guests.

Pressing on, however, the State next argues that in any event the officers had a right to seize the evidence in question because it was in plain view. The plain-view doctrine is based on the theory that a warrantless search incident to a lawful arrest may generally extend to the area that is considered to be in possession or under control of the person arrested, and such items in plain view may be seized. (United States v. Rabinowitz, 339 U.S. 56, 94 L.Ed. 653, 70 S.Ct. 430.) But plain view, standing alone, is never enough to justify a warrantless search, for first the officer must be shown to have been lawfully on the premises (People v. Eastin, 8 Ill.App.3d 512) and not present only after an unlawful invasion of private property. (People v. Smith, 5 Ill.App.3d 341.) As stated in Coolidge v. New Hampshire, 403 U.S. 443, 29 L.Ed.2d 564, 91 S.Ct. 2022, what the plain-view cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused. Here we find, as above set forth, that the officers were not lawfully on the premises, and therefore the plain-view doctrine is not applicable.

We have also examined all of the other numerous cases cited by the State in support of its arguments, and we do not consider any of their factual situations comparable to the facts here involved.

Accordingly, judgment of the Circuit Court of Wabash County suppressing evidence and dismissing the petition for adjudication of wardship is affirmed.

Affirmed.

G. MORAN, P. J., and CARTER, j., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard E. Harshbarger, Defendant-Appellant.
    (No. 73-332;
    Fifth District
    November 7, 1974.

      Frederick F. Cohn, of Chicago, for appeHant.
    John H. Ward, State’s Attorney, of Taylorville (James W. Jerz and Martin P. Moltz, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of th,e court:

In a jury trial in the Circuit Court of Christian County defendant was convicted on a two-count indictment charging possession of a controlled substance (marijuana), and possession of amphetamines. He was sentenced to concurrent terms of 1 to 3 years on each count. In this appeal defendant contends, among other things, that his arrest was unlawful and in violation of his constitutional rights and that a search warrant against his automobile was improperly issued.

Prior to trial defendant’s motions to quash the warrant and to suppress all evidence obtained in a search of his person and his car were denied. At the hearing on these motions one police officer testified and it was stipulated that the testimony of another officer would be the same. It appears that in response to information received by the police that Robert Leads had a large quantity of marijuana in his possession, they went to his house about 4 o’clock in the afternoon on September 26, 1972. They knew him and when he answered the door they asked and received his consent to search his car. Finding nothing of consequence, they then asked and were permitted to check the house. When they entered they observed three other young men seated in the living room, one of whom was the defendant, Richard Harshbarger. Also, they noticed what they believed to be a strong smell of burning marijuana. In a check of the house no marijuana was found, but nonetheless all four men were informed that they were under arrest for possession and they were immediately taken to the police station in a squad car. In answer to specific inquiries the officer stated that they had no arrest or search warrant, that they had never seen defendant before, that they did not see defendant in possssion of any marijuana, that they did not .find any on the premises, and that they did not observe that defendant was violating any city ordinance, State statute, or Federal law. The officer also testified that he did not consider himself an expert on the subject of burning marijuana, but that he was aware that burning tea bags and burning marijuana have a similar odor which he was not sure he would be able to distinguish.

On reaching the station the officer stated that each of the individuals was searched prior to being placed in a detention cell. In the search of defendant an old-fashioned pocket watch was found in his undershorts, and, when the lid was pried open, it was found to contain 25% small, grey, compressed tablets of unknown content (later determined to be amphetamines). Defendant was asked for permission to search his car, which in the meantime had been towed to a garage, but he refused. A guard was placed on the car until the next day when a search warrant was obtained. In the search of the car two brief cases containing a number of cellophane packages of marijuana were found in the trunk. The affidavit in support of the complaint read as follows:

“Complainant says that he has probable cause to believe, based upon the following facts, that the above listed things to be seized are now located upon the (person and) premises set forth above; The Taylorville City Police Officers arrested Richard Harshbarger and found him to have in his possession controlled substances and it is believed that there may be more controlled substances in his automobile; said subject was arrested on September 26, 1972 and the controlled substance was found at that time. Subject had just left his automobile immediately prior to his arrest.”

We shall first consider defendant’s contentions relative to his arrest and the search of his person incident thereto. The rules pertinent to this issue are well established. An officer making an arrest without a warrant must have probable cause to believe that a criminal offense has been committed and that the person to be arrested has committed it; that is, he must have some reasonable grounds or have knowledge of some facts upon which to base his belief that such person is guilty of or implicated in a crime, and a mere suspicion in the officer’s mind unsupported by such facts is insufficient to support an arrest or a search incident thereto. (People v. Henneman, 373 Ill. 603.) Further, as stated in this latter case, while it is necessary in the interest of crime prevention to give substantial latitude to police officers in making a warrantless arrest, yet, in doing so, the constitutional guaranty to all citizens to be secure in their persons, houses, property and effects against unreasonable searches and seizures, must be observed. It is also clear that the lawfulness of an arrest depends upon the existence of reasonable grounds for the arrest at the time it is made, and after-discovered evidence upon a search does not relate back to operate as a justification. (People v. Roe buck, 25 Ill.2d 108.) Finally, neither can a search or a seizure made without a warrant be justified as incident to an arrest unless the arrest was constitutionally valid. Johnson v. United States, 333 U.S. 10, 92 L.Ed. 436, 68 S.Ct. 367.

Applying these rules to the facts before us we can find no justification for defendant’s arrest at the time it was made, nor for the search of his person occurring sometime subsequent thereto at the station house. The officers had never seen or heard of defendant before. He was merely one of four persons sitting in the living room of a house in which the officers thought they smelled burning marijuana. They had no idea which one of them, or for that matter, if any of them had actually been smoldng marijuana. Nor did defendant by his actions, furtive or otherwise, give any indication that he may have been violating any law. In effect, defendant’s arrest was prompted by a mere suspicion that someone must have been smoldng marijuana because of the odor believed to be present, and, therefore, the best thing to do was to arrest and search everybody. This we believe to have been unwarranted and unlawful, constituting a patent violation of defendant’s constitutional rights.

In United States v. Di Re, 332 U.S. 581, 92 L. Ed. 210, 68 S.Ct. 222, Federal officers had information that a certain individual was selling counterfeit gasoline ration coupons. The informer sent to make a purchase from him did so in the presence of the defendant, Di Re, who happened to be in the seller’s car. The officers then arrested both the seller and Di Re, and, in a search of Di Re incident to his arrest, they found a large number of counterfeit coupons on him concealed betweeen his shirt and underwear. Quoting the rules above cited the court held such arrest and search unlawful because at the time of the arrest the officers had no information implicating Di Re in any crime nor any information pointing to his possession of counterfeit coupons, and under such circumstances they had no probable cause to arrest him. In answer to a government argument the court specifically found that the mere fact that Di Re was sitting in the parked car when the sale was made to the informer could not, of itself, constitute probable cause to believe him guilty of committing a crime or of even raising an inference of guilt. Of further interest is the court’s explanatory comment that though in some instances the application of such rules may appear to make law enforcement more difficult and uncertain, nonetheless it was the specific design of our constitution to place obstacles in the way of a too permeating police surveillance which was believed to be an even greater danger to a free people than the escape of some criminals. See also Johnson v. United States, supra.

We conclude that the arrest of defendant and the search of his person were unlawful as violative of his constitutional rights, and we find that the trial court erred in refusing to suppress the evidence obtained in said search.

We now proceed to a consideration of the validity of tire search warrant. While it is true that a reviewing court should pay substantial deference to a judicial determination of probable cause for issuance of a warrant, nonetheless approval thereof is not automatic. The requirement still remains that the magistrate must be shown to have acted independently, in a neutral and detached manner, basing his judgment upon the underlying facts presented to him rather than merely accepting the beliefs, inferences and conclusions of the complainant. (Aguilar v. Texas, 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509.) A warrant issued upon the sworn allegation that an affiant “has cause to suspect and does believe” that certain merchandise was in a specified location has been held insufficient as a mere affirmation of suspicion and belief without any statement of adequate supporting facts. (Nathanson v. United States, 290 U.S. 41, 78 L.Ed. 159, 54 S.Ct. 11.) To permit a warrant to be issued upon an affiant’s inferences and beliefs without any supporting facts constitutes a violation of the very purpose of the constitutional requirement that the inferences must be drawn by a neutral and detached magistrate and not by a police officer engaged in the often competitive enteiprise of ferretting out crime. Giordenello v. United States, 357 U.S. 480, 2 L.Ed.2d 1503, 78 S.Ct. 1245.

Again applying these rales to the facts before us we find that the affidavit contains little more than a statement of affiant’s belief or inference that because controlled substances were found on defendant’s person there “may be more controlled substances in his automobile.” No other background facts were presented to the judge. He was not informed of the circumstances of defendant’s arrest and consequently he had no opportunity to judge the lawfulness or unlawfulness of either his arrest or the search of his person. Had he been given these facts and had he determined defendant’s arrest to have been unlawful surely he would not have allowed the fruits of the unlawful search to give rise to a further violation of defendant’s constitutional right to privacy.

We conclude that the search warrant should not have been issued because the affidavit did not provide a sufficient basis for a finding of probable cause, and further, because, under the particular circumstances of this case, the fruits of an original unlawful search cannot be used to furnish probable cause for a subsequent search any more than the results of a search can be used to justify an unlawful arrest. Accordingly, we find that the trial court committed error in refusing to suppress the evidence obtained in the search of defendant’s automobile.

With all evidence against defendant suppressed we find no reason for remandment. The judgment of the Circuit Court of Christian County is reversed.

Reversed.

G. MORAN, P. J., and CARTER, J., concur.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eric R. Ehn et al., Defendants-Appellants.
    (No. 58772;
    First District (2nd Division)
    October 29, 1974.

      Elliott T. Price, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

The defendants, Eric R. Ehn, Louis Truelock and Fred Jenkins, were charged with unlawful use of weapons, in violation of section 24 — 1 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1), in that they knowingly possessed a shotgun with a barrel less than 18 inches in length; that they knowingly carried concealed, in an automobile, a revolver, and that they knowingly carried a revolver within 5 years of their release from a felony conviction. After a bench trial, all three defendants were found guilty on the shotgun counts and the counts charging possession of a revolver within 5 years of release from a felony conviction, and each was sentenced to a term of 3 to 10 years in the penitentiary. All three defendants have appealed.

On appeal defendants contend that they were not proven guilty beyond a reasonable doubt of knowledge of the presence of the two revolvers in the automobile; that defendants Truelock and Jenkins were not proven guilty beyond a reasonable doubt of knowledge of the presence of the shotguns in the trunk of the automobile and, further, that they did not have constructive possession of the shotguns; that the State failed to prove that the length of the barrels of the shotguns was less than eighteen inches; that the variance between the bill of particulars and the evidence resulted in prejudicial error; that the trial court erred in permitting certain exhibits to be introduced in evidence; and that the search of the automobile was illegal.

At the trial David William Schwieger, a police officer for the city of Chicago, testified that on May 27, 1970, he was working with his partner, Russell Lynn, in a marked police vehicle in the vicinity of 744 West North Avenue, Chicago, when he noticed a 1968 Dodge Charger being operated with a towbar across the back of the car so as to obscure the license plate. They stopped the automobile and talked to Eric Ehn, the driver, at the rear of his car. While he was talking, Schwieger noticed that the left arm of the person sitting in the right front seat moved to the rear of the vehicle, between the two bucket seats. Schwieger then looked through the rear window and saw the person’s left arm come back a second time with a revolver in his hand. Schwieger identified Louis Truelock as the person who passed the gun to the rear.

Schwieger stated he yelled to Lynn that the occupants were passing a gun and ordered the three occupants out of the vehicle. Schwieger said that, as he guarded the four people, he noticed that Lynn found shotgun shells on the person of Eric Ehn. Schwieger then searched the rear of the vehicle and found two revolvers wedged between the rear seat and the door panel on the right side, covered with a sweater. He also found two knives and a bandaid case with an ignition-jumper kit in the glove compartment on the console, and a construction helmet containing a mask and a pair of rubber gloves on the floor in the right front section of the car where Truelock was sitting. Schwieger testified that . these items were inventoried, together with two shotguns Lynn had found in the trunk.

Schwieger identified People’s Exhibits Nos. 1 through 15. He said People’s Exhibit No. 1 was a picture of the vehicle the defendants were riding in when they were stopped; People’s Exhibit No. 2 was a picture of the defendants at the time they were arrested, wearing the clothes they had on when they were stopped; People’s Exhibit No. 3 was a picture of the defendants, depicting the clothes they wore underneath their outer clothes; People’s Exhibit No. 4 was a picture of defendants wearing the masks which were found in the automobile; People’s Exhibits Nos. 5 and 6 were the two revolvers which were recovered from the automobile; People’s Exhibits Nos. 7(a) and 7(b) were the two shotguns that were in the trunk; People’s Exhibits Nos. 8(a), 8(b) and 8(c) were a helmet, a mask and a pair of rubber gloves found inside the automobile; People’s Exhibits Nos. 9(a), 9(b) and 9(c) were three masks, specifically, stockings that were tied in a knot on the top with the bottom portion open; People’s Exhibits Nos. 10 and 11 were two knives found in the console of the automobile; People’s Exhibits Nos. 12(a) and 12(b) were a bandaid container found in the glove compartment of the automobile, with a wire for jumping ignitions; People’s Exhibit No. 13 was a picture of all the items taken; People’s Exhibit No. 14 was a number of .38-caliber bullets used in a handgun; and People’s Exhibit No. 15 was ammunition found on Ehn for a .12-gauge shotgun.

Russell Lynn, a Chicago police officer, substantiated the testimony of Schwieger. Lynn also testified he searched the defendants after they left the automobile. On Eric Ehn he found shotgun shells, a nylon stocking and two sets of clothing. On Louis Truelock he found shotgun shells, ammunition for a .38-caliber gun and two sets of clothing. On Fred Jenkins he found .38-caliber ammunition and a nylon stocking which had been cut up. Lynn stated he then handcuffed the defendants, and Schwieger then searched their automobile; and that Schwieger recovered two revolvers, a plastic type of construction helmet, a piece of paper with holes cut in it, a bandaid can with some wires and clips on the end, and two knives. Lynn stated he opened the trunk and found two fully loaded sawed-off shotguns.

The trial court admitted into evidence People’s Exhibits 1, 2, 3, 5, 6, 7(a), 7(b), 8(a), 8(b), 8(c), 9(a), 9(b), 9(c), 14, 15 and 16, but refused to admit People’s Exhibits 4, 10, 11, 12 and 13.

Eric R. Ehn, one of the defendants, testified that on May 27, 1970, he drove his car to work. When he got through working, at about 8:30 P.M., he changed into his bike clothes — levis and a motorcycle jacket— and threw his work clothes into his trunk; and that he had possibly five sets of clothes from that week in his trunk, together with a large thick quilt and tools. Ehn further testified that, when he left work, he visited Truelock, another defendant, at. Truelock’s job site and helped Truelock fix his car. He put on another pair of pants over his levis because he did not wish to get them dirty. He said his car was parked directly behind Truelock’s car, with the trunk left open, and that he could not see the trunk from where he was working.

Ehn also stated he and Truelock needed some parts for the car and so went to a girlfriend’s house to get some money to buy the parts. Enroute they picked up Fred Jenkins and George Bidot, who were waiting at a bus stop at North Avenue and Wells Street, and he then . proceeded west on North Avenue. He said Jenkins was seated behind . him and Bidot (who was indicted along with the defendants, but was not tried with them) was seated on the right side of the rear seat. Ehn testified he was stopped by the police. He still had on his work clothes. He stated there was a bulge in the left front pocket of the jacket he was wearing, which was caused by an aluminum cigarette case he had in that pocket. Ehn further testified that while he was talking to Lynn, Schwieger stood in front of the squad car; and that Schwieger did not shout anything at any time. He said that after Lynn ordered the passengers out of the car, Lynn asked him for the key to the trunk and that he gave the key to Lynn. Ehn said Lynn could not open the trunk, so Ehn stuck the key in the lock and opened the trunk.

On cross-examination, Ehn stated Lynn did not find shotgun shells or a stocking with a knot tied in it on his person. He said he did not see any ammunition taken from Jenkins or Truelock. Although Schwieger searched the inside of the car, Ehn did not see him recover two revolvers. Nor did he see Schwieger recover any stockings, masks or knives from the car. Ehn identified People’s Exhibits Nos. 2 and 3 as the extra set of clothes he wore that evening and the extra set of clothes Truelock wore that evening. He said that, before the trunk was opened, he never saw the two shotguns which were found in the trunk, and that he did recall Lynn finding the ammunition in the trunk.

Fred Jenkins testified that at about 10 P.M. on May 27, 1970, he was standing on the corner of North Avenue and Wells Street when he saw Truelock and Ehn in a car. He accepted a ride with them. He said that at 744 West North Avenue police officers stopped the car and searched all of the passengers. Jenkins denied he had any weapons or shells of any kind on him or that he had more than one set of clothes on at the time. He said that prior to the search by the police he did not know there were any revolvers or shotguns or ammunition in the car. The first time he knew of or saw the guns and shells was when the police searched the car.

Jenkins further stated that, when the police stopped the car, Ehn, the driver, got out of the car and walked back to the police officers. Schwieger then came up to the side of the car and put his head in the window on the driver’s side and then Schwieger ordered everyone out of the car. Jenkins said Schwieger took his billfold, a handkerchief, and a pack of cigarettes. Jenkins denied having a black stocking, stating that the first time he saw the stocking was when he was forced to put it on by the police officers. Jenkins also stated the police officers did not take any ammunition or shells from him nor did he observe them take any from the other defendants. Jenkins said that when other police officers arrived to help, they stood between him and his friends, thereby hindering his view of the search conducted on the other defendants.

Jenkins also testified that when Schwieger searched the car, Jenkins did not see a revolver, but he heard Schwieger tell Lynn he had found one. When Lynn searched the trunk, Jenkins observed him as he discovered a blanket and two shotguns. He also observed Lynn when he discovered some shells which Jenkins thought were in a box in the trunk.

The testimony of Truelock substantially confirmed the testimony of Ehn and Jenkins. Truelock also stated that he did not have any revolvers, shotguns pr ammunition in his possession.

At the close of all the evidence, the trial court stated that the testimony of the defendants was unreasonable.

The defendants first argue that it was error for the trial court to admit into evidence the pictures showing the defendants wearing two sets of clothing, as well as the three masks made out of nylon stockings, the helmet and gloves, and a mask made from a shower cap. The defendants also contend that it was error for the police officers to testify that the defendants were wearing two sets of clothes and that the defendants had masks in their possession at the time of their arrest.

The general rule is that evidence of other crimes committed by a defendant is inadmissible when independent of or disconnected from the crime with which he is charged. (People v. Cage, 34 Ill.2d 530, 216 N.E.2d 805.) But a corollary of the rule is that evidence, relevant to the main issue, which serves to place a defendant in proximity to the time and place, aids or establishes identity, and tends to prove design, motive or knowledge, is admissible. (People v. Botulinski, 392 Ill. 212, 64 N.E.2d 486.) Resolution of the conflict between the rule and corollary depends on whether the evidence of other crimes is so closely connected with the main issue that it tends to prove the accused guilty of the crime for which he is being tried. People v. Tranowski, 20 Ill.2d 11, 169 N.E.2d 347.

In the case at bar, the evidence that the defendants were wearing two sets of clothes at the time of their arrest and that they had masks and a helmet and gloves in the automobile at the time of the search was not for the purpose of showing that other crimes had been committed but, rather, was a description of the various items found in the automobile after a lawful arrest and search which, as more fully explained hereinafter, tended to prove that defendants had a common design to commit the crime of unlawful use of weapons. The trial court did not err in admitting into evidence the various items of personal property and criminal paraphernalia found in the automobile as a result of a legal search. Also, the trial court did not err in permitting the police officers to testify thereto, as well as to describe the wearing apparel of the defendants. People v. Cannon, 18 Ill.App.3d 781, 310 N.E.2d 673.

The defendants next argue “that from a consideration of the totality 'of the evidence, there remains a pervasive and abiding doubt that any of the defendants had the requisite knowledge that the pistols were present in the car.” Contrary to the defendants’ contention, the evidence, if believed by the trier of fact, discloses that each defendant had knowledge of the presence of the revolvers. Police Officer Schwieger testified that he and his partner, Police Officer Lynn, observed a' 1968 Dodge Charger being operated with a towbar across the rear of the automobile so as to obscure the license plate. They stopped the automobile and talked to Eric Ehn, the driver and owner of the automobile, at the rear of his car. Schwieger, looking through the rear window of the car, then observed Truelock pass a revolver to someone sitting in the back seat.

Schwieger caHed to Lynn that the occupants were passing a gun and ordered the three occupants out of the vehicle. He searched the rear of the vehicle and found two revolvers wedged between the rear seat and the door panel on the right side, covered with a sweater. He also found two knives and a bandaid case with an ignition-jumper kit in the glove compartment on the console and a construction helmet containing a mask and a pair of rubber gloves' on the floor of the right front section of the car, where Truelock had been sitting. It should be noted that Ehn and Truelock had shotgun ammunition on their persons and Jenkins had .38-caliber ammunition on his person.

The essential element of knowledge can seldom be proven by direct evidence, but, rather, must often be proven by circumstantial evidence. (People v. Bell, 7 Ill.App.3d 625, 288 N.E.2d 253.) In the instant case, Officer Schwieger saw Truelock pass a gun. If the officer’s testimony is to be beheved, Truelock obviously had knowledge of the revolvers. Moreover, since Jenkins was in the back seat of the car at the time the gun was passed (which was before the police search of the car), had then made no remonstrance, and had then had .38-caliber ammunition on,his person, the court could have reasonably concluded that he also had knowledge of the guns. Although Ehn was not in the car at the moment the gun was passed, he was the owner and driver of the car. His ownership and control of the car together with the numerous items of criminal paraphemaHa found in the car permit a reasonable inference that he too had knowledge of the weapons. The totafity of the evidence was sufficient for the trial court to find all of the defendants guilty of knowingly carrying a revolver concealed in an automobile in violation of section 24 — 1 of the Criminal Code. People v. McKnight, 39 Ill,2d 577, 237 N.E.2d 488, cert. denied, 394 U.S. 993; People v. Zazzetti, 6 Ill.App.3d 858, 286 N.E.2d 745; People v. Barksdale, 14 Ill.App.3d 415, 302 N.E.2d 718.

Defendants Truelock and Jenkins argue that the shotguns, which were located in the trunk of the automobile owned by Ehn, were situated in an area over which they had no immediate and exclusive control and that they were not proved to have had knowledge of the presence of the shotguns. However, under section 5 — 2 of the Criminal Code a person is legally accountable for the conduct of another when, either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense. 111. Rev. Stat. 1969, ch. 38, par. 5 — 2.

Defendants Truelock and Jenkins do not argue that Ehn did not have knowledge and constructive possession of the shotguns in the trunk of the car. They contend that they cannot be held responsible because they did not have knowledge of the shotguns being in the trunk. However, if section 5 — 2 is applicable to Truelock and Jenkins, the knowledge and possession of the shotguns by Ehn is imputed to Truelock and Jenkins. We think it is applicable. All the defendants were riding together in an automobile owned and operated by Ehn and that automobile contained two revolvers and numerous articles of criminal paraphernalia. All the evidence clearly indicated that the defendants were traveling together with each defendant’s approval and assent for the commission of the crime of unlawful use of weapons. People v. Williams, 132 Ill.App.2d 806, 270 N.E.2d 144.

In People v. Nowak, 45 Ill.2d 158, 169, 258 N.E.2d 313, the court said:

‘Where two or more defendants have a common design to do an unlawful act any act done by any of them in furtherance of the common design is the act of all and all are equally guilty of whatever crime is committed. (People v. Armstrong, 41 Ill.2d 390, 398; People v. Hill, 39 Ill.2d 125, 133.) It is also well settled that proof of a common design or purpose can be drawn from the circumstances surrounding the commission of the act.”

In the case at bar, the circumstances surrounding the commission of the crime of unlawful use of weapons show a common design. Truelock was seen passing a revolver. Ehn and Truelock had shotgun ammunition on their persons. Jenkins had .38-caliber ammunition on his person. Ehn and Truelock had two sets of clothing and masks. Two revolvers, two knives, a helmet, a piece of paper with holes cut in it, and a bandaid kit with some wires and clips on the end were found in the automobile. These facts support a reasonable inference that all of the defendants had a common design to commit the crime of unlawful use of weapons. ' (Williams, supra.) Proof of a common design need not be supported by Words of agreement but can be drawn from the circumstances surrounding the commission of the act. (People v. Jones, 12 Ill.App.3d 643, 647-48, 299 N.E.2d 77.) Therefore, Truelock and Jenkins, together with Ehn, were rightfully found guilty of possession of the two shotguns found in the trunk of the automobile.

The defendants also argue that the State failed to prove they knowingly possessed a shotgun with a barrel less than 18 inches in length, as provided in section 24 — 1(a)(7) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1(a) (7)). The two shotguns were introduced into evidence and, therefore, were before the eyes of the trial judge. Further, at the time the shotguns were being identified, the assistant State’s Attorney stated, without objection by defense counsel, that both of the shotguns were less than 18 inches in length. Also, the assistant State’s Attorney offered the trial court an 18-inch ruler, to measure the length of the shotguns, and, when defense counsel objected, the court stated the guns were in evidence.

In the case at bar, the fact that the shotguns were introduced in evidence and viewed by the trial court and the failure of defense counsel to object to the statement of the assistant State’s Attorney that the shotguns were less than 18 inches in length were sufficient to support a guilty finding beyond a reasonable doubt that defendants knowingly possessed a shotgun with a barrel less than eighteen inches in length in violation of section 24 — 1(a)(7) of the Criminal Code. People v. McCall, 14 Ill.App.3d 340, 302 N.E.2d 400.

The defendants also argue that there was a fatal variance between the evidence and the bill of particulars. During the trial, the State introduced evidence to the effect that the defendants were riding in a car about 10:30 P.M. on May 27, .1970, when they were stopped by two police officers at 744 West North Avenue, Chicago, Illinois. In an answer to a defense motion, the State filed a bill of particulars in which it was stated that the police stopped the automobile at 744 West Monroe Street, Chicago, Illinois. The statement is contrary to the testimony of Police Officer Schwieger, Police Officer Lynn, and defendant Jenkins, all of whom testified that the automobile in which the defendants were riding was stopped at 744 West North Avenue. Further, Ehn stated that he was “going down North Avenue” when he was stopped by a squad car and Truelock’s testimony was to the effect that they were stopped on North Avenue.

It is therefore apparent that the address of 744 West Monroe Sheet in the bill of particulars was a typographical or clerical error. The courts have held that a typographical or clerical error is a formal rather than a substantive defect, which does not violate defendants’ constitutional right to-be apprised of the nature of the charge against them. People v. Parr, 130 Ill.App.2d 212, 220, 264 N.E.2d 850; People v. Bates, 9 Ill.App.3d 882, 293 N.E.2d 358.

Further, a variance, in criminal law, is not regarded as material, unless it is of such a substantial character as to mislead those accused in preparing their defense or unless it may place them in second jeopardy for the same offense. (People v. Boneau, 327 Ill. 194, 158 N.E. 431; People v. Mikota, 1 Ill.App.3d 114, 273 N.E.2d 618; Ill. Crim. Proc. (1971), v. 5, sec. 36.13, p. 14.) The trial court, in denying defendants’ motion for a directed verdict because of the variance, stated that the defendants knew the location of the occurrence and so they were not surprised.

In light of the foregoing, there was no fatal variance between the address given in the biff of particulars and the evidence introduced at the trial. Therefore, the trial court did not err in denying the defendants’ motion to dismiss because of a typographical error in the biU of particulars stating that the arrest occurred at 744 West Monroe Street when, in fact, the trial testimony of all the witnesses clearly shows that the automobile was stopped at 744 West North Avenue, Chicago. This is especiaUy trae in light of the fact that the defendants do not contend that they were surprised at trial and, further, there is no evidence that they suffered any prejudice. (People v. Simental, 11 Ill.App.3d 537, 543, 297 N.E.2d 356.) Further, since the address is not an essential ingredient of the crime of unlawful use of weapons, the variance between the bill of particulars and the proof was harmless. People v. Jones, 12 Ill.App.3d 643, 652-653, 299 N.E.2d 77.

Finally, the defendants, relying upon the case of Chimel v. California, 395 U.S. 752, contend that, even though the arrest was legal, the police officers were not justified in conducting a thorough search of the interior of the automobile, including the glove compartment and the trank. The evidence discloses that the police officers stopped the automobile owned and driven by Ehn because it was being operated with a towbar across the rear of the automobile so as to obscure the license plate. While Police Officer Lynn was talking to Ehn, Police Officer Schwieger observed Truelock pass a revolver to someone sitting in the back seat. Thereupon, aU defendants were ordered out of the car and searched. Ammunition for either a revolver or a shotgun was found on all three defendants. Schwieger then searched the interior of the automobile and found two revolvers. Finally, Lynn searched the trunk and found two fully loaded shotguns.

Relying on Chimel, supra, tire defendants argue that since all defendants were out of the car, the search of the interior of the automobile and the search of the trank could not be upheld as incident to a lawful arrest. Defendants have, however, overlooked a whoHy different alternative theory — whether there was probable cause to make the complete search. After considering this latter theory, we find it unnecessary to discuss the possible application of Chimel to the instant case.

In one of the earliest search and seizure cases, the Supreme Court stated that the right to search an automobile and the validity of the seizure are not dependent on the right to arrest. Rather, the search can be grounded on the reasonable cause the seizing officer has for his belief that the contents of the automobile offend against the law. (Carroll v. United States, 267 U.S. 132.) In such cases, a warrant is unnecessary to search a car stopped on the highway, as the car is movable, the occupants alerted, and the car’s contents may never again be found if a warrant must be obtained. (Chambers v. Maroney, 399 U.S. 42.) Moreover, the Court in Chambers pointed out that once probable cause exists to search a car on the highway, that probable cause continues even when the car is taken by the police and removed to the police station.

In the instant case, it is conceded that the police had validly stopped the defendants for a traffic violation. At that point, Officer Schwieger saw a gun in the car. Since it is unlawful to carry any weapon concealed in a vehicle, Officer Schwieger had at that moment probable cause to believe a crime was being committed and that the contents of the car offended against the law. That being so, the officers were fully justified in searching the entire car. (People v. Babic, 7 Ill.App.3d 36, 287 N.E.2d 24.) The fact that the defendants were out of the car, or even under arrest in the squad car, would be of no importance. (People v. Canaday, 49 Ill.2d 416, 275 N.E.2d 356; People v. Ricketson, 129 Ill.App.2d 365, 264 N.E.2d 220.) Probable cause to search the car continued to exist. Chambers, supra.

It would be difficult to imagine a stronger set of facts for a finding of probable cause than in the instant case. Officer Schwieger actually saw a gun being passed in the car. A subsequent search of the defendants revealed ammunition on all three defendants for either a revolver or a shotgun. Accordingly,, we hold that there was no error in denying the defendant’s motion to suppress and allowing the weapons into evidence.

The judgments of conviction are affirmed.

Judgments affirmed.

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