text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Charles Porcelli, Defendant-Appellee.
    (No. 58730;
    First District (3rd Division)
    November 21, 1974.

      Rehearing denied January 23, 1975.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, William K. Hedrick, and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
    George J. Cotsirilos and William J. Martin, both of Chicago, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

An assistant State’s Attorney tape-recorded a telephone conversation between a Glencoe policeman and a Chicago lawyer. In the conversation the lawyer renewed a prior $300 offer he had made to the officer if the officer would change his report in reference to a client of the lawyer whom he had arrested. The electronic eavesdropping was purportedly done under the authority of section 14 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 14 — 2). The lawyer was indicted for bribery (Ill. Rev. Stat. 1971, ch. 38, par. 33 — 1). At his trial, the court suppressed the recorded conversation and the evidence of the events that followed it. The State thereupon struck the case with leave to reinstate and appealed.

The issues presented are these: whether the State complied with the requirements of the statute; whether the statute is constitutional; whether the eavesdropping violated the Fourth Amendment to the Constitution of the United States or article I, section 6, of the Illinois Constitution of 1970, and whether the evidence obtained subsequent to the recording should have been suppressed.

Anthony Ormiston was arrested for driving a vehicle while under the influence of intoxicating liquor. The arresting officer, Russell Strutz of the Glencoe, Illinois, police force, tested Ormiston to determine the degree of his insobriety and his ability to drive an automobile. In reporting the results of Iris visual examination Strutz stated that Ormiston was unsure in turning and completely missed his nose when he tried to touch it with his finger.

At the hearing on the motion to suppress, an offer of proof was made that if permitted to do so, Strutz would testify that the defendant, Charles Porcelli, who represented himself to be Ormiston s lawyer, called upon him at the Glencoe police station. Porcelli placed an envelope which he said contained $300 on a desk and said it would be the officers if he would alter his report in two respects: change “unsure in turning” to “sure,” and “completely missed” the finger-to-nose test to “hesitant.” Strutz said he would have to talk it over with his chief of police and would telephone Porcelli.

Strutz telephoned Porcelli the next afternoon but he did so from the State’s Attorney’s office. He consented to having the conversation recorded and the State’s Attorney approved its transcription. Strutz testified that he told Porcelli he had talked to the chief and asked “what is there for us?” Porcelli replied, “Three, like I told you last night.” The officer said he had the alcohol influence report in front of him and asked “what is it you wanted?” Porcelli answered, “A sure on turning and a hesitant on finger to nose.” He inquired whether Strutz was working from 3 to 11 P.M. and said, “Well, I will be out there tonight.”

Porcelli came to the station about 10:30 P.M. Strutz gave him copies of the original and amended report which he placed in his briefcase and received in return an envelope filled with bills. The exchange took place in a room that was used for the identification of suspects and it was equipped with a mirror. Porcelli asked if it was a one-way mirror. Strutz said it was and Porcelli walked out of the room.

A Glencoe police lieutenant and the assistant State’s Attorney who had been present at the afternoon’s telephone talk were standing in back of the mirror. They observed the transaction and overheard the conversation. The lieutenant arrested Porcelli as he entered his automobile and brought him back to the station. The lieutenant then returned to the auto and retrieved the briefcase containing the reports.

The trial court sustained the motion to suppress for these reasons: the electronic surveillance was done without a warrant; it violated the Fourth Amendment to the Federal Constitution and section 6, article I, of the State Constitution; the statute under which it was done was invalid and the authorization sanctioning it was over-broad. Because we fully concur with the last reason, we find it unnecessary to discuss the others. Constitutional issues should not be considered if a case can be decided on other grounds. Alexander v. Louisiana (1972), 405 U.S. 625; People v. Fleming (1971), 50 Ill.2d 141, 277 N.E.2d 872.

The statute provides:

“A person commits eavesdropping when he:
(a) Uses an eavesdropping device to hear or record all or any part of any conversation unless he does so with the consent of any one party to such conversation and at the request of a State’s Attorney; * * *” Ill. Rev. Stat. 1971, ch. 38, par. 14 — 2.

To establish its compliance with the statute, the following document, which was characterized as a “memorial,” was introduced into evidence by the State:

“Office of the State’s Attorney

September 28, 1972

Lieutenant Louis Cantone

Chief Investigator

State’s Attorney’s Office

2600 South California Avenue

Chicago, Illinois 60608

Dear Sir:

This is to request and authorize that investigators under your command designated by you or by supervisory personnel responsible to you, to use an eavesdropping device to hear or record all or any part of any conversation between one Russell Strutz and any other individual if such hearing or recording is done with the consent of Russell Strutz.

This request and authorization is made pursuant to Chapter 38, Section 14 — 2(a) of the Illinois Revised Statutes, 1971.

This request and authorization is in effect from 11:00 A.M., September 28, 1972 through and including October 5, 1972, 11:00 A.M.

Yours truly,

/s/ Edward V. Hanrahan

EVH:NJM:rmn State’s Attorney of Cook County.”

Certain things about the letter cast suspicion upon the time it was written and the authenticity of the signature. The State called the documefli a memorialization of a bookkeeping entry, which suggests that it was issued after the recorded conversation and that its purpose was to formalize an earlier oral authorization; lending weight to this inference is the statement that it was to be effective from 11 A.M., September 28, 1972, which was 4 hours before the recording took place and 2 hours before Strutz requested it. The initials NJM appended to the letter were tiróse of an assistant State’s Attorney who was the head of the special prosecutions unit of the State’s Attorney’s office; their presence on the letter carries an implication that he was the actual writer.

But apart from these possibly significant factors (see United States v. Giordano (1974), 416 U.S. 505; but cf. People v. Nahas (1973), 9 Ill.App.3d 570), the letter was too broad. It authorized any one of a large number of people to use an eavesdropping device to hear or record, not conversations between Strutz and Porcelli, but any conversation Strutz might have with anyone during a period of 1 full week.

The Illinois statute flatly declares that the use of an eavesdropping device is a criminal offense. In this respect the statute comports with the Constitution of 1970 which states: “The people shall have the right to be secure in their persons, houses, papers and other possessions against unreasonable searches, seizures, invasions of privacy or interceptions of communications by eavesdropping devices or other means.” (Ill. Const. (1970), art. I, § 6.) The consent by one participant in a conversation to its electronic interception by a third party may prevent the interception from coming within the purview of the Fourth Amendment to the Federal Constitution, but it is not enough to prevent it from being a violation of the statute. The staute not only requires the consent of one of the parties, but a request by the'State’s Attorney of the county in which the surreptitious surveillance is to take place. These restraints oñ electronic eavesdropping and the mandate of our State Constitution demand the strict construction of the statute and cóordinately, the equally strict scrutiny of all purported consents and' requests, so that in Illinois citizens may be safeguarded from promiscuous governmental surveillance, civilian snooping or other unreasonable intrusions into their privacy.

Since the authorization by the State’s Attorney’s office did not meet the standards required by Illinois law, the recording of the Strutz-Porcelli conversation was properly suppressed. It did not follow, however, that Strutz could not testify to what was said. (United States v. White. (1971), 401 U.S. 745.) The unlawful transcribing tainted all evidence which wás obtained as the result of the illegal act such as the transcription itself, the presence of the assistant State’s Attorney at the Glencoe police Station and his corroborating testimony as to what he heard and witnessed. But the transcribing did not render inadmissible all testimony concerning the conversation or the evidence which was not directly derived from it.

In Wong Sun v. United States (1963), 371 U.S. 471, 487-88, the court said:

“We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ ”

And in 29 Am. Jur. 2d Evidence § 415 (1967). it is stated:

• “This ‘fruit of the poisonous tree’ doctrine extends, however, only to facts which were actually discovered by a process initiated by the unlawful act; if information which could have emerged from an unlawful search in fact stems from an independent source, the evidence is admissible.”

Strutz did not telephone Porcelli just so that a recording could be made. It is true that he telephoned him from the State’s Attorney’s office for this purpose, but he could have called him nevertheless. Porcelli had asked Strutz to let him know whether he would change his report; Strutz had agreed and was following through on his promise. Likewise, no knowledge gleaned by the State from the recording caused Porcelli to go to the Glencoe police station to make the payoff. He went there because Strutz told him the report had been altered in accordance with his request. He did not hand $300 to Strutz because of any information derived by the State from the recording. He made the payment in exchange for the revised report because this is what he had said he would do when he first visited Strutz. Also, the witnessing of the exchange by the Glencoe police lieutenant, his arrest of Porcelli and the seizure of his briefcase would have happened whether or not there had been a recording. Whether the seizure may have been illegal for other reasons need not be determined in this opinion.

The telephone conversation occurred as a logical progression of Strutz’ handling of the case. The conversation was motivated independently of the eavesdropping. There was no essential connection between the conversation and the eavesdropping and Strutz’ testimony provides an independent source of its content. He was a participant in the conversation and his knowledge of what was said was not gained from the illegal recording.

Strutz’ testimony did not become inadmissible by reason of his having deceived Porcelli about his intention to accept the bribe. This point was covered in Lopez v. United States (1963), 373 U.S. 427, 438, where the court said:

“We need not be long detained by the belated claim that Davis should not have been permitted to testify about the conversation of October 24. Davis was not guilty of an unlawful invasion of petitioner’s [Lopez’] office simply because his apparent willingness to accept a bribe was not real. [Citation.] He was in the office with petitioner’s consent, and while there he did not violate the privacy of the office by seizing something surreptitiously without petitioner’s knowledge. [Citation.] The only evidence obtained consisted of statements made by Lopez to Davis, statements which Lopez knew full well could be used against him by Davis if he wished. We decline to hold that whenever an offer of a bribe is made in private, and the offeree does not intend to accept, that offer is a constitutionally protected communication.”

The conversations betwen Strutz and Porcelli prior to September 28, their telephone conversation on that date, their meeting that night, the testimony of the lieutenant as to that meeting, the copies of the reports given to Porcelli and the money he gave to Strutz were evidentiary items not generated by die eavesdropping and were admissible in evidence.

The trial court’s suppression of the recording, the assistant State’s Attorney’s testimony regarding it and his participation in events subsequent to it, will be affirmed. The suppression of the evidentiary items enumerated in the preceding paragraph will be reversed. The cause will be remanded for further proceedings not inconsistent with this opinion.

Affirmed in part; reversed in part and remanded with directions.

McNAMARA, P. J., and MEJDA, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ADESKO

license: Public Domain

text:
    Metropolitan Sanitary District, Petitioner, v. The Pollution Control Board et al., Respondents.
    (No. 57800;
    First District (4th Division)
    December 11, 1974.

      Rehearing denied January 24, 1975.

    Allen S. Lavin and Sidney B. Baker, both of Chicago (Phillip Rothenberg, James B. Murray, and Paul D. Lindauer, Jr., of counsel), for petitioner.
    • William J. Scott, Attorney General, of Springfield (Douglas T. Moring, Richard W. Cosby, and Harvey M. Sheldon, Assistant Attorneys General, and Richard F. Sarna, Senior Law Student, of counsel), for respondents.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The Metropolitan Sanitary District, referred to here as the District, which operated the treatment plant in the Village of Streamwood complained about inadequacies in the maintenance of the sewer system of the Village which impeded the adequate operation of the District’s treatment facilities. The District requested the Village on numerous occasions to decrease the amount of storm-water flow into the Village sewer collection system and thereby into the District’s treatment plant. The District then denied sewer permits for the development of those areas serviced by the Streamwood treatment plant.

In 1965 the District recognized the need for additional waste-treatment capacity in the Poplar Creek Drainage Basin, and land was acquired for the construction of the projected Poplar Creek Waste Reclamation Plant, which would make the Streamwood plant obsolete. The District engaged in a substantial amount of preparatory work for the construction of the Poplar Creek facilities. In February, 1968, the District deleted from its construction program a projected expansion of the Streamwood plant.

The District, being pressed for funds to meet the ever-increasing demands of new developing areas for proper sewage-treatment facilities, had to look for Federal funds and State grants to meet the demand.

The Northeastern Illinois Planning Commission was designated by the Governor of the State of Illinois as to the area-wide planning agency which was to review applications for available Federal and State funds. Previous to that time the Northeastern Planning Commission had failed to give its approval to the District’s Poplar Creek project because it ran counter to the Commission’s regional plan which foresaw that the entire Poplar Creek Drainage Basin was to be serviced by the Elgin Sanitary District, which project was objected to by the Elgin district.

In March, 1971, the Northeastern Planning Commission formally approved its regional waste-water plan over the strong objection of the Metropolitan Sanitary District and transmitted the plan to the Environmental Protection Agency for certification. Thereafter the District applied to the agency for a Federal and State grant for the construction of the Poplar Creek treatment plant but was denied any funds for the reason that the plant would not conform to Northeastern’s regional plan. Blocked in its endeavor to obtain Federal and State grants to build the Poplar Creek facility, and to find a satisfactory solution under the regional plan, the District decided to build the plant with its own funds. The District asked the Environmental Protection agency whether a permit to construct the facility would be granted despite the fact that the projected facility would not conform to the regional plan. The agency answered the question in the affirmative on January 20, 1972.

In August, 1970, the District recognized that the Poplar Creek plant could not be constructed in the immediate future due to the disputes which had arisen. The District then made arrangements to install the interim facility at the Streamwood plant which had been deleted from its program in February, 1968. The Environmental Protection Agency refused to certify the interim facility, and the District applied again for a variance.

■ At the same time the Environmental Protection Agency filed an enforcement complaint against the District charging that the District failed to meet the water-quality standards set forth in the Environmental Protection Act and the rules and regulations of the Pollution Control Board, and that from September 22 to September 24, 1971, the District discharged a degraded effluent from the treatment plant.

The District admitted, as far as the latter charge was concerned, that the effluent was degraded between September 22 and September 24, •1971, but pointed out that this incident was caused by the taking out of service of one of the two trickling filters at the plant in order to replace a mercury seal, upon the express directive of the Environmental Protection Agency. The District demonstrated during the hearing that it had to obey the order of the agency and that it could not do anything under the circumstances to prevent the discharge of inadequately treated effluents during the replacement period. The District’s evidence was not rebutted by the agency, as acknowledged by the Board in its decision. The Board, nevertheless, in its order, imposed upon the District a penalty of $1,000 for violation of certain stream standards during the replacement of the trickling-filter seal, and a penalty of $5,000 for water pollution and violation of water-quality standards in the operation of the Streamwood plant.

The District is seeking a review from that part of the order of the Pollution Control Board which assessed monetary penalties against the District under provisions of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1042). This issue has been a subject of several opinions resulting in conflicting decisions. Our supreme court resolved this issue in City of Waukegan v. Pollution Control Board, 57 Ill.2d 170, 311 N.E.2d 146. The opponents of the theory that an administrative agency can assess monetary penalties claimed that it violates the separation-of-powers provision of the Illinois Constitution. In the City of Waukegan appeal, Justice Ward said that the trend in State decisions is to allow administrative agencies to impose discretionary civil penalties.

Justice Ward, quoting from Braden and Cohn, The Illinois Constitution: An Annotated and Comparative Analysis (1969), prepared for the Illinois Constitution Study Commission, said:

“As a general rule, delegation to administrators or agencies of the quasi-judicial power to adjudicate rights or to revoke privileges such as licenses is not invalid so long as there is an opportunity for judicial review of the administrative action. Such judicial review normally permits an aggrieved party to contest the fairness of the procedure used, the constitutionality of the substance of the regulatory statute and implementing rules and regulations, the correctness of the administrator’s interpretation of the statute under which he operates, and whether or not his decision was arbitrary. In short, if the judiciary is given an adequate opportunity to review what has been done, the principle of separation of powers —or due process of law, if you will — is generally satisfied.” 57 Ill.2d 170, 181-2.

For the reasons given, the order of the Illinois Pollution Control Board is affirmed.

Order affirmed.

BURMAN and JOHNSON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Howard E. Smith (Impleaded), Defendant-Appellant.
    (No. 59568;
    First District (4th Division)
    December 11, 1974.

      James J. Doherty, Public Defender, of Chicago (John M. Kalnins and John X. Breslin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Zachary L. Stanger, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant, Howard E. Smith, and two others, Cornell Reynolds and Tommy Williams, were tried in a bench trial in the Circuit Court of Cook County for the offenses of battery and theft of property valued at less than $150. At the close of the State’s evidence the battery charges were dismissed as to all three defendants. Following the presentation of defendants’ evidence the court found Williams and Reynolds not guilty of theft, but found Smith guilty and sentenced him to serve a term of 90 days in the House of. Correction. Defendant Smith appeals.

At trial, the State’s first witness was Edward Thompson. At approximately 11 P.M. on September 5, 1972, he left the apartment at 5801 S. Morgan, Chicago, Illinois, which he shared with his brother Floyd. He had been drinking that evening and left to continue drinking. He stated that he returned to the apartment at about 1 A.M. and his next recollection was being treated for injuries apparently caused by a beating. When he was released from the hospital he returned to the apartment and discovered that several items, including a color television, a floor fan, and a tape player were missing. At this point in the trial ownership of the fan and tape player by Floyd Thompson and the fact that they were later found in the car with defendants was stipulated to. It was also stipulated that the value of the items was less than $150.

The next witness was Officer Lindsey, Chicago Police Department. He testified that at about 1 A.M. on the evening of September 5-6, 1972, he received a radio message and as a result, minutes later observed a dark-colored Chevrolet having a license number beginning with the letters “VG.” The car was parked in front of a tavern on 59th Street-and Halsted, approximately a half mile from the Thompsons’. apartment. When he first saw the car nobody was in it, though he did see a television set in the trunk. Officer Lindsey drove down the street, turned his car around, and pulled in behind the Chevrolet. At this time all three defendants were in the car. The floor fan and tape player were in the back seat. Defendants Williams, Reynolds, and Smith were then arrested by Officer Lindsey. .

The only other witness to testify for the State was Carl Lee Smith. Between 12:30 and 1 A.M. that evening he returned to his apartment across the street from the Thompsons’ apartment. He testified that he saw two men emerge from 5801 S. Morgan, running and carrying something. The objects were placed in a ‘black-looking” Chevrolet. He could not make out the entire license number but was able to read the first two letters — “VG.” A woman across the street called the police who arrived a few minutes later.

Defendant Howard Smith, testifying in his own behalf, stated that he had borrowed his brother’s dark-blue Chevrolet about 9 P.M. on September 5, 1972. The first two letters of the car’s license plate were “VG.” He claimed that he and Cornell Reynolds had met a man named James Hawkins near a gas station at 59th and Peoria. Hawkins explained that he had just had a fight with his wife and had left her, taking a television set, a floor fan, and a tape player. The goods were loaded into the car by two of Hawkins’ friends, and Hawkins got into the car. Smith let Hawkins drive, and Hawkins offered to buy Smith and Reynolds a drink for their help. They stopped at the tavern where Officer Lindsey later observed the car. About a half-hour later Smith and Reynolds, now accompanied by Tommy Williams whom they had met in the tavern, went out to the car where they were arrested by Officer Lindsey. Smith said that the officer did not give him a chance to explain how the items got into the car or the fact that Hawkins was still in the tavern.

Tommy Williams testified that he had been in the tavern all day and left with Reynolds and Smith at the time Smith stated since they offered to drop him off at a friend’s house. He entered the car and was arrested by Officer Lindsey. He said that he did not see the items in question in the back of the car.

Cornell Reynolds was the last to testify. His account of the events that evening was generally the same as that given by Howard Smith. However, he himself did not know Hawkins or remember what he looked like though he said Smith apparently did. He also stated that he did not know what time they had started out that evening and that, contrary to his testimony, Howard Smith had driven the car the entire evening.

Defendant Smith’s sole contention on this appeal is that the trial court’s findings of guilty as to him and not guilty as to Cornell Reynolds were so inconsistent as to create a reasonable doubt regarding his (Smith’s) guilt. Recent, exclusive, and unexplained possession of stolen property may of itself raise an inference of guilt sufficient to authorize a conviction in absence of any other evidence which would create a reasonable doubt as to defendant’s guilt. (See People v. Whittaker, 45 Ill.2d 491, 259 N.E.2d 787, for a thorough discussion.) Citing People v. Reynolds, 27 Ill.2d 523, 190 N.E.2d 301, defendant concedes that possession may be joint among persons and still be exclusive, as contemplated above. It is defendant Smith’s argument that all three defendants explained their possession by “equally plausible and inter-corroborating testimony” and that since his explanation and that of defendant Reynolds consisted of “exactly the same facts” that the finding of guilty as to him alone was inconsistent. We do not agree.

At this court has noted on innumerable occasions, it is for the trier of fact, whether judge or jury, to determine credibility of witnesses and to weigh testimony. “Where the truth lies, in any debatable set of circumstances, is a matter peculiarly for the determination of the trier of fact * * (People v. Woods, 26 Ill.2d 582, 585, 187 N.E.2d 692.) We will not set aside such a determination unless the proof was so unsatisfactory or implausible that a reasonable doubt as to defendant’s guilt remains. If exactly the same facts or testimony was presented at trial relating to defendants Reynolds and Smith, we would agree that the verdicts would be inconsistent and that a reasonable doubt as to defendant Smith’s guilt would still exist. However, such is not the case.

To begin with, the State as always had the burden of proving each defendant’s guilt beyond a reasonable doubt. This does not mean that the trial judge necessarily found the testimony of the two defendants he found not guilty to be true. The State introduced testimony sufficient to show that the vehicle defendant Smith was driving that evening was in front of the Thompson apartment and that several men loaded some goods into it. It was stipulated that these goods, the property of Floyd Thompson, were later found in defendant Smith’s car while that car was occupied by all three defendants.

Carl Lee Scott could not identify the two men he saw run from the Thompson apartment. Tommy Williams testified that he had been in the tavern all evening and left with the other two defendants after they entered for a drink later that evening. He further stated he was unaware of the existence of the stolen property and did not see it when he got in the car. The fact that he had not been with the others prior to the time they left the tavern was corroborated by Reynolds and Smith. It was quite proper for the trial judge to find that the State’s burden had not been met in regard to defendant Williams.

Defendant Reynolds’ story does not wholly support that of Howard Smith. He was not sure of exactly when he had joined Howard Smith that evening, and he did not know the man who, it was claimed, put the items in the car. He did state that Howard Smith knew the man and that Smith had driven the car áll evening. His testimony was not then, as claimed in the brief, exactly as that of defendant Smith, nor was his status the same. ' -

The evidence showed that defendant Smith was in effective control of the car which Carl Lee Scott saw in front of the Thompson apartment and into which he saw two men put some objects. These stolen items were later recovered from this car. When considering the effect of the inference resulting from the recent and unexplained possession of stolen property, the status of a passenger has been distinguished from that of the driver on the basis of the driver’s control of the car and its contents. (See People v. Evans, 24 Ill.2d 11, 179 N.E.2d 657.) In the instant case, the evidence proved beyond a reasonable doubt that defendant Smith was the driver and in effective control of the car and its contents that evening and guilty of theft, but did not prove beyond a reasonable doubt that defendant Reynolds was anything except a passenger in the vehicle when he was arrested. Again, this does not mean that the trial judge accepted all of Reynolds’ testimony, but rather that the State failed in its burden of proof regarding him.

The fact situation in the instant case can be distinguished from those presented in the two cases cited in defendant’s brief. In People v. Griffin, 88 Ill.App.2d 28, 232 N.E.2d 699, the State introduced the testimony of the victim that both men struck him. The evidence and identification was no stronger or different as to one defendant or the other, and as a result, the reviewing court could find no basis upon which the jury could find one guilty and not the other. In People v. Ethridge, 131 Ill. App.2d 351, 268 N.E.2d 260, the State’s case consisted of the eyewitness testimony of the arresting officers. The question in Ethridge was the opposite of that in the instant case. The testimony of the State’s witnesses had to be credible to establish a defendant’s guilt beyond a reasonable doubt. If it was not considered credible as to one defendant then a reasonable doubt could be said to exist as to all. In the instant case, the testimony of Carl Lee Scott and Officer Lindsey was not rendered less credible by the finding of guilty as to one defendant and not the other two, since these findings did not in any way serve to contradict the testimony presented by these witnesses.

For the foregoing reasons, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN and JOHNSON, JJ., concur.


text:
    Roger Cox, Plaintiff-Appellee, v. National Jockey Club et al., Defendants-Appellants.
    (No. 60316;
    First District (4th Division)
    December 11, 1974.

      Thomas D. Nash, Jr., Robert M. Ahern, and Thomas J. Cisar, all of Chicago, for appellant.
    Coghlan and Joyce, of Chicago (William J. Nellis, of counsel), for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

This is an interlocutory appeal from an order of the trial court granting the plaintiff’s request for a preliminary injunction against the defendants. This appeal is brought pursuant to Illinois Supreme Court Rule 307(a)(1) (Ill. Rev. Stat. 1973, ch. 110A, par. 307(a)(1)).

Plaintiff, Roger Cox, is a jockey and brought suit against the defendants seeking injunctive relief. Plaintiff sought an order which would prohibit the defendants from excluding him from participating as a jockey in a thoroughbred horse racing meet to be conducted by the National Jockey Club. The plaintiff’s complaint alleged that plaintiff is engaged in the occupation of a jockey for profit and that he was issued his 1974 jockey license by the Illinois Racing Board on April 17, 1974. The defendant, National Jockey Club, is an Illinois corporation that conducts thoroughbred horse racing meets and was licensed by the Illinois Racing Board to hold such a meeting at Sportsman’s Park, Cicero, Illinois, commencing April 19, 1974. The individual defendants, Bidwill, Johnston and Scott are respectively the president, secretary and entry cleric of the National Jockey Club.

Plaintiff’s complaint stated that on and prior to April 17, 1974, he had been employed to ride several horses which had been entered in the races to be held by the defendants on April 19,1974, at Sportsman’s Park. Plaintiff was so employed by four different horse trainers. The fact of this employment was communicated by plaintiff to the National Jockey Club and defendant Bidwill. Plaintiff’s complaint stated that “on April 17, 1974, after plaintiff Roger Cox has been issued his 1974 license as a jockey by the Illinois Racing Board, and during the drawing of races for Friday, April 19, 1974, defendant National Jockey Club and its officers and employees, including defendants Charles W. Bidwill, Jr. and Thomas Scott, and other persons unknown to plaintiff Roger Cox, by concerted, arbitrary and unlawful action caused the name of plaintiff Roger Cox to be removed, eliminated and scratched from the listing of all horses he had been employed and retained to ride on Friday, April 19, 1974 # * with the direct result of malicious and unlawful interference with the employment and contractual relationships of plaintiff Roger Cox and his inability to conduct his business as a jockey on April 19, 1974, and thereafter, and extensive damages to his business reputation.” Plaintiff alleged that the defendants had a duty and obligation under the laws of Illinois not to interfere directly or indirectly with him in his business and occupation as a jockey and not to interfere directly or indirectly with him in his business employment and Contractual relationships with third persons. Plaintiff alleged financial damages by virtue of the defendants’ interference with his business, employment, and contractual relationships and damages to his reputation.

Plaintiff’s complaint also stated that unless plaintiff was awarded a temporary restraining order or preliminary injunction before 7 A.M. on Friday, April 19; 1974, he would suffer immediate and irreparable injury in that he would be prevented from employment as a jockey, not only on April 19, but throughout the horse racing meet to be conducted by defendant, National Jockey Club, at Sportsman’s Park during 1974. It was at that hour that the programs for the races to be held on April 19 were to be printed which would include the names of the jockeys riding the horses entered in the races for that day. As previously stated, plaintiff requested that the trial court grant a temporary restraining order or preliminary injunction against the defendants. In addition, the plaintiff’s prayer for relief requested that upon a final hearing and determination the temporary restraining order or preliminary injunction be made permanent and that plaintiff be awarded a- judgment including actual damages, exemplary damages, a reasonable attorneys’ fee and costs.

The plaintiff’s complaint was filed on April 18, 1974, and at the same time plaintiff filed a motion for a temporary restraining order or preliminary injunction. The defendant responded to the plaintiff’s complaint and motion by filing a motion to dismiss on April 18, 1974. The motion to dismiss was premised on the grounds that the complaint failed to state a claim upon which any relief could be granted; the complaint was insufficient in law; the complaint did not state sufficient facts upon which the relief requested could be granted; that since the National Jockey Club is a private corporation it can exclude any person from its premises or deny any person racing privileges for any reason except race, color, creed or place of national origin; and that the allegations of the complaint failed to establish any unlawful corporate conduct or conduct by any of the individual defendants which would permit the granting of the relief requested.

On April 18, 1974, after a hearing, the tidal court granted the plaintiff’s request for a preliminary injunction. The trial court’s order prohibited the National Jockey Club and the individual defendants from (1) directly or indirectly interfering with the lawful business and occupation of the plaintiff as a licensed jockey; (2) from directly or indirectly interfering with the business, employment and contractual relationships of the plaintiff as a licensed jockey; (3) from directly or indirectly causing plaintiff or his name to be removed from any horse he had been employed or retained to ride as a jockey; and (4) from directly or indirectly impeding plaintiff in the lawful pursuit of his business and relationships as a licensed jockey at Sportsman’s Park race track throughout the 1974 horse racing meet being conducted by the National Jockey Club at Sportsman’s Park. In addition, the trial court found that there was no just cause for delay in any enforcement of or appeal from its order. The defendants appeal and seek a reversal of the trial court’s order.

The defendants maintain that a private corporation which is licensed by the State to conduct a horse racing meet on privately owned premises may unqualifiedly deny a licensed jockey permission to participate in its racing meet if the exclusion is not based upon reasons of race, religion, color or national origin. The plaintiff contends that a licensee conducting a horse racing meet in Illinois cannot arbitrarily and without reason or justification exclude a licensed jockey from participation in its meet. The plaintiff’s contention is premised on three grounds: (1) That the license issued to him by the Illinois Racing Board constitutes a ticket of admission to any race track in which he desires to ply his trade; (2) that the rules and regulations adopted by the Illinois Racing Board regarding stewards and their power and authority indicate that the licensee conducted a horse racing meet is to relinquish all control over such meet to the stewards; and (3) that by virtue of section 2 of the Horse Racing Act (Ill. Rev. Stat. 1973, ch. 8, par. 37b) the National Jockey Club had a monopoly over thoroughbred horse racing at the time in question and, therefore, could not exclude a jockey without reason or justification. While we do not agree with the plaintiff’s position in all respects, we are of the opinion that a private corporation licensed by the State of Illinois to conduct a horse racing meet on private property cannot arbitrarily deny a licensed jockey permission to participate in its racing meet.

A license issued to a jockey by the Illinois Racing Board does not constitute a ticket of admission to any race track in which the jockey desires to ply his trade. The Horse Racing Act, section 3.1, allows the Illinois Racing Board to issue licenses to jockeys “to engage in their vocation within such race track enclosures.” (Ill. Rev. Stat. 1973, ch. 8, par. 37c — 2.) The information which the applicant is required to supply, the procedures the Board is to follow in issuing a license and the reasons upon which the Board can refuse to issue a license indicate that this provision of the Act is primarily directed toward preventing undersirables from engaging in horse racing activities. As was stated in Town of Cicero v. Weilander, 35 Ill.App.2d 456, 461, 183 N.E.2d 40, 43 (1962):

“The object of a license is to confer a right or power which does not exist without it, and it may be to regulate and control the occupation or privilege for which the license is granted, so as to sub-serve the public good or prevent its being conducted in a manner injurious to the public welfare, or to raise revenue. 53 CJS Licenses, sec. 2.”

Although an applicant for a jockey’s license is required to pay a fee, section 3.1 of the Horse Racing Act is not primarily intended to raise revenue. Its purpose is to regulate and control the occupation of a jockey and to insure that the occupation is not engaged in by those who would practice it in a manner injurious to horse racing and the public welfare.

The Illinois Racing Board has adopted pervasive rules and regulations pursuant to its rule-making power. (Ill. Rev. Stat. 1973, ch. 8, par. 37a7.) The plaintiff has cited rules 23 to 30 inclusive, rule 45 and rule 172 of the Illinois Racing Board’s Rules and Regulations of Horse Racing in support of his contention that a licensee conducting a horse racing meet is to relinquish all control over such meet to the supervising stewards. However, a perusal of these rules indicates that the pervasive powers granted to the supervising stewards relate to the actual running of the racing meet and not to who is to be allowed to participate. Therefore, we do not agree that, by adopting rules 23 to 30 inclusive and rules 45 and 172, the Illinois Racing Board intended that a licensee conducting a horse racing meet should not be allowed to exclude a particular jockey from participating in its meet.

While we do not agree with the plaintiff’s position in these two respects, we are of the opinion that, by virtue of section 2 of the Horse Racing Act the defendant, National Jockey Club,' had a quasi-monopoly over the thoroughbred horse racing during the period of the subject racing meet and, therefore, defendants could not arbitrarily and without reason or justification deny plaintiff the opportunity of participating in its meet. Section 2 of the Act deals, inter alia, with the allotment of racing dates. In regards to the allotment of racing dates on applications filed prior to November 1 of a particular year, section 2 states: “* * * wherever practicable there shall be no conflicts in racing dates between race tracks located within 150 miles of each other.” Section 2 of the Act also states:

“In acting upon any application filed on or after November 1 of any year, the Board shall not allot to such applicant any date or dates which conflict with the date or dates allotted to applicants who have filed their application prior to November 1 of such year, but no conflict shall be considered to exist between 2 race tracks which are located more than 150 miles apart.” (Ill. Rev. Stat. 1973, ch. 8, par. 37b.)

It is apparent that our legislature, through the allotment power granted to the Illinois Racing Board by section 2 of the Act, intended to limit the competition between horse racing tracks within 150 miles of each other and to grant such tracks a quasi-monopoly during their allotted racing dates. The horse racing meet the defendants were conducting began on April 19,1974, and was to last for 33 days. During this period the National Jockey Club had a quasi-monopoly over thoroughbred racing within 150 miles of Sportsman’s Park race track.

In the case of Greenberg v. Hollywood Turf Club, 7 Cal.App.3d 968, 86 Cal. Rptr. 885 (1970), the plaintiff was a licensed horse trainer and stable agent and was barred from entering Hollywood Park race track by the defendants, Hollywood and one James Stewart. Hollywood and Stewart responded to the plaintiff’s complaint by asserting that Hollywood as a property owner had a right to keep persons it did not want off its premises. In rejecting this theory the court stated:

“It is a matter of judicial notice that by virtue of the licensing powers of the Board, racing associations have a quasi-monopoly and that the number of tracks in operation at any one time is severely limited. (Bus. & Prof. Code, § 19530 et seq.; see also footnote 5, post.) This imposes upon Hollywood certain obligations to which other land owners are not subject.” (7 Cal.App.3d 968, 976, 86 Cal. Rptr. 885, 890.)

We agree with this statement and are of the opinion that with the benefit of receiving a quasi-monopoly come corresponding obligations, one of which is to not arbitrarily exclude a jockey who desires to participate in a racing meet.

The abitrary exclusion of the plaintiff meant that he was deprived of the opportunity to engage in his chosen occupation within a reasonable geographic area and for a significant period of time. This was done without reason or justification ever being given by the defendants. As the California Appellate Court stated in Greenberg:

“We do not believe, however, that in order to protect their legitimate interests, race tracks need an absolute immunity from having to justify the exclusion of trainers or stable agents from the few places where they can ply their licensed trade or can conveniently find future employment. Absolute immunities are falling into disfavor in other areas. [Citations.] We think that the general principle that a party whose conduct causes legal injury should justify himself, applies here as well.” (7 Cal.App.3d 968, 978, 86 Cal. Rptr. 885, 892.)

Similarly, it is not necessary in order to protect the legitimate interests of a licensee conducting a horse racing meet in Illinois to allow such licensee to exclude arbitrarily and without reason or justification a jockey who desires to participate in the racing meet. We do not mean to intimate that a licensee conducting a horse racing meet in Illinois can never bar a jockey from participation. If a legitimate and reasonable justification for exclusion is articulated, the licensee conducting the horse racing meet would certainly be within the boundaries of acceptable behavior. However, this was not the situation in the case at bar.

The defendants rely most heavily on the case of Martin o. Monmouth Park Jockey Club, 145 F.Supp. 439 (D.N.J. 1956), aff’d per curiam, 242 F.2d 344 ( 3rd Cir. 1957). In that case the plaintiff, Robert J. Martin, was a jockey and had accepted engagements to ride at the Monmouth Park race track. The officials of the Monmouth Park Jockey Club notified Martin that he would not be permitted to ride at the track because of his past record. Martin had been suspended in the State of Maryland in 1950 for having placed a bet on a horse racing against one he was riding. The defendants in the case at bar cite the following from Martin. The court stated at page 440:

“Although it is intensely regulated, the defendant Club is a private organization. Nothing is more elementary than its right as a private corporation to admit or exclude any persons it pleases from its private property, absent some definite legal compulsion to the contrary.”

However, there is no indication in tire Martin decision that race tracks in New Jersey are granted by statute a quasi-monopoly over horse racing during their allotted race dates as they are in Illinois. In addition the court in Martin also relied on the fact that a legitimate and reasonable justification for excluding Martin had been articulated. The court stated at page 441:

“In a sport where the greatest importance should attach to dissipating any cloud of association with the undesirable, and in which the appearance as well as the fact of complete integrity is of paramount consideration, to exclude plaintiff from riding because of his record was an understandably warranted exercise of discretion.” (Emphasis added.)

We think these factors sufficiently distinguish Martin from the case at bar.

Defendants also refer to the Greenberg case, supra, and express consternation with its holding in light of the fact that it cited Martin with apparent approval. However, as we previously stated, the court in Green-berg found a quasi-monopolistic situation to exist and in referring to Martin in a footnote found it significant, as we do, that in MaHin a legitimate and reasonable justification for exclusion was articulated. We find no difficulty in harmonizing these two cases.

The defendants have also cited the cases of Madden v. Queens County Jockey Club, Inc., 296 N.Y. 249, 72 N.E.2d 697 (1947), and People v. Licata, 28 N.Y.2d 113, 268 N.E.2d 787 (1971), in which the courts upheld the right of the owners of a race track to exclude patrons from attending races without reason or justification so long as the exclusion was not based on race, creed, color or national origin. However, these cases involved patrons and not a jockey who was being arbitrarily deprived of his fundamental right to engage in his chosen occupation. We do not find Madden and Licata persuasive.

We are of the opinion that the trial court acted correctly, and we, therefore, affirm its order granting the plaintiff’s request for a preliminary injunction.

Affirmed.

BURMAN and JOHNSON, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gilbert and Bennett Manufacturing Company, Defendant-Appellant.
    (No. 59392;
    First District (5th Division)
    December 13, 1974.
    Joseph S. Wright, Jr., Clifton A. Lake, and Laurence A. McHugh, all of Chicago (Hackbert, Rooks, Pitts, Fullagar and Poust, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner, Paul P. Biebel, Jr., Melvyn A. Rieff, and Donald P. Smith, Assistant State’s Attorneys, and Louis R. Hegeman, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant appeals from an $8900 fine imposed against it by the circuit court of Cook County for violating section 9(a) of the Environmental Protection Act. (Ill. Rev. Stat. 1971, ch. 111½, par. 1009(a).) Defendant contends that: (1) the fine was improper because compliance with Pollution Control Board Rules, established by an emission test, constitutes a prima facie defense for each and every day similar conditions exist; (2) the fine was improper because the trial court erred in ruling that its prima facie defense was rebutted; and (3) the fine violates due process of law and the Environmental Protection Act.

On January 8, 1973, the State filed a verified 17-count complaint against defendant alleging that its fence-post-coating operations were causing air pollution. Counts I and II sought to enjoin common-law statutory nuisances; Counts III through XVII sought fines for specific instances of air pollution in violation of section 9 of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1009). Defendant filed a verified answer which denied polluting the air. On February 14, 15 and 16, 1973, an evidentiary hearing was held on the State’s motion for a preliminary injunction. As a result of this hearing, the court issued a preliminary injunction which it subsequently modified. Defendant then moved to dismiss the complaint, but before any action was taken, trial on the merits commenced.

At trial, the parties stipulated that the evidence taken at the hearing for the prefiminary injunction would be considered in addition to other evidence adduced. Since the facts are not essentially in dispute we need not summarize the testimony of each witness. However, the following statement of facts is necessaiy to understand the case.

The State introduced evidence indicating that the odors and emissions from defendant’s plant caused considerable physical irritation to the residents living near the plant and restricted those residents’ use and enjoyment of their property. The State, primarily through the testimony of a number of residents of the area, was able to substantiate forty-three separate occasions when such hardships resulted. Those dates extended over the period of a year from April of 1972 to March of 1973. There were seven occasions in April; four in May; four in June; two in July; five in October; four in January; nine in February; and seven in March.

Defendant introduced evidence that it began its fence-post-coating operations in Blue Island in September of 1971 and operated without any pollution control equipment until February of 1972 when an electrostatic precipitator system was installed. This system did not operate satisfactorily and modifications in the system and in the chemical compound for coating the fence posts were made at various times. On July 17, 1972 (which was not a day complained of by the State), at defendant’s direction, a 9-hour emission test was conducted by an independent chemical engineering firm. Although the comprehensiveness of this test is subject to question, as a result of the test, the rate of organic emissions from defendant’s stack was determined to be 2.49 pounds per hour. Other evidence, primarily the testimony of defendant’s employees, indicated that while the emissions from the plant had once been severe, they were hardly a problem at all when the matter came to court.

Following the trial, the State amended its complaint to conform to the proofs, combining and amending Counts III through XVII of the original complaint into a single count. On the basis of the evidence presented, the court issued a permanent injunction against defendant. This injunction is not in issue here. Subsequently, after the parties briefed the question of imposing a fine, the court denied defendant’s motion to dismiss Count III of the amended complaint which requested that a fine be imposed and fined defendant a total of $8900 ($500 for the first violation and $200 for each of 42 subsequent violations). Defendant appeals from the imposition of this penalty.

Opinion

Defendant first contends that the fine was improper because compliance with Pollution Control Board (PCB) Rules, established by an emission test, constitutes a prima facie defense for each and every day similar conditions exist. Defendant argues that it cannot be expected to conduct an emission test every day it operates and complains that the court erred in the consideration it gave to the emission test.

Section 49(e) of the Environmental Protection Act (Ill. Rev. Stat. 1971, ch. 111½, par. 1049(e)) provides:

“Compliance with the rules and regulations promulgated by the Board under this Act shall constitute a prima facie defense to any action, legal, equitable, or criminal, or an administrative proceeding for a violation of this Act, brought by any person.”

Defendant contends that its emissions test shows compliance with PCB Rule 205(f) which provides:

“Use of Organic Material. No person shall cause or allow the discharge of more than 8 pounds per hour of organic material into the atmosphere from any emission source, except as provided in paragraphs (f)(1) and (f)(2) of this Rule 205 and the following: Exception: If no odor nuisance exists the hmitation of this Rule 205(f) shall apply only to photochemically reactive material.”

Therefore, defendant argues that a prima facie defense applicable to the instant charges has been established.

In order to establish a prima facie defense pursuant to section 49(e), a defendant must establish compliance with all the applicable rules and regulations on the days the violations of the Act are alleged to have occurred. On the facts of the instant case, we do not believe such a defense was established. Here, the emissions test was not comprehensive; defendant did not prove compliance with all applicable regulations and rules; and, as the trial court noted in limiting the effect of the emissions test to the day of the test, the emissions test was not shown applicable to the days the violations were alleged to have occurred. Therefore, while section 49(e) does provide a prima facie defense, it was not established here. Therefore, we cannot say that the trial court erred in Hmiting the effect it gave to the defendant’s emissions test.

Defendant next contends that its prima facie defense was not rebutted. Even if we were to assume that defendant had established its prima facie defense, the law of Illinois is clear that a defense pursuant to section 49(e) is not a complete defense. (Lloyd A. Fry Roofing Co. v. Pollution Control Bd., 20 Ill.App.3d 301, 310, 314 N.E.2d 350, 357.) A section 49(e) defense may be rebutted.

In die instant case, since defendant’s evidence regarding the emissions test was taken at the hearing on the preliminary injunction and since the State presented further evidence at the trial on the merits, the State’s evidence at the trial on the merits may be viewed as rebuttal evidence. However, aside from this fact, the State’s evidence indicates that defendant violated the Act on numerous occasions both before and after the emissions test and both before and after the preliminary injunction was entered. We believe this evidence was sufficient to rebut defendant’s prima facie defense even assuming that the defense had been sufficiently established.

Defendant lastly contends that the fine violated due process of law and the Environmental Protection Act. Defendant argues that the trial court’s interpretation deprived it of a statutory defense and subjects it to uncertainty regarding what is prohibited. While section 49(e) does provide a prima facie defense, it does not and was not intended to provide a complete and unrebuttable defense. (Lloyd v. Fry Roofing Co. v. Pollution Control Bd., 20 Ill.App.3d 301, 310, 314 N.E.2d 350, 357.) In the instant case, not only was the defense not established, but even if it had been established, the State’s evidence sufficiently rebutted it. Therefore, we cannot say that defendant was deprived of a statutory defense by the court’s interpretation of section 49(e). Furthermore, we note that the Illinois Supreme Court in City of Monmouth o. Pollution Control Bd., 57 Ill.2d 482, 486-87, 313 N.E.2d 161, 163-64, upheld the constitutionality of section 9 of the Environmental Protection Act, holding that the section provided sufficient standards. Since defendant was charged with violating this same section and since the supreme court has determined that the standards established in that section are sufficient, we cannot say that defendant was subjected to any uncertainty regarding what conduct is expected of it.

Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

DRUCKER and BARRETT, JJ., concur.


author: Mr. PRESIDING JUSTICE SULLIVAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Ashton, Defendant-Appellant.
    (No. 59678;
    First District (5th Division)
    December 13, 1974.

      James J. Doherty, Public Defender, of Chicago (Gerald Winiecki and Thomas F. Finegan, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Maiy Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. PRESIDING JUSTICE SULLIVAN.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Austin, Defendant-Appellant.
    (No. 59010;
    First District (5th Division)
    December 13, 1974

      James J. Doherty, Public Defender, of Chicago (Marilyn D. Israel, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    Rebecca Jacobs, Plaintiff-Appellant, v. Larry Jacobs, Defendant-Appellee.
    (No. 59893;
    First District (5th Division)
    December 13, 1974.

      Robert F. Meersman, of Mt. Prospect (Edward G. Wells, of counsel), for appellant.
    Sherwin Greenberg, of Skokie, for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from an order modifying a decree of divorce.

Plaintiff and defendant were married in New York in 1963 in a Jewish religious ceremony. One child, Jennifer, was bom to them of this marriage. In December, 1969, plaintiff petitioned for and was awarded a divorce in the Circuit Court of Cook County. That decree awarded the sole care, custody, control and education of the minor child Jennifer, then 4 years of age, to plaintiff mother. Prior to the divorce, both plaintiff and defendant were of the Jewish religion. However, neither party actively practiced their faith during the marriage.

After the divorce, each of the parties remarried. Defendant married a Protestant woman who converted to Judaism. Plaintiff married a Mr. Gerhardt, of the Catholic faith, and converted to Catholicism. Plaintiff subsequently had several other children, all of whom are baptized and raised in the Catholic faith. She now lives in New York, where Mr. Gerhardt is employed, while defendant remains in Illinois.

In November, 1971, defendant petitioned to amend the decree of divorce and award custody of Jennifer to himself. It appears that since his remarriage he had become extremely devout and orthodox in his practice of the Jewish religion. His petition alleged, in essence, that Jennifer was receiving instruction in the Catholic faith, was being forced to participate in Catholic services, and that said conduct was detrimental to the proper care, well-being and education of the minor child. For these reasons, the father contended plaintiff was unfit to have custody and prayed that custody be awarded him.

The court directed a psychiatric examination of defendant, plaintiff and Jennifer. In his letter to the court following the interviews, the examiner reported:

“Whereas Mrs. Gerhardt appears to sincerely feel that a change to Catholicism would be for Jennifer’s benefit in terms of her feeling more a part of the family, Mr. Jacobs’ desire is much more predicated on an unconscious selfish motivation.”

The examiner goes on to state that he feels the issue is “not significant” to the child but that “Mrs. Gerhardt would be more accepting of Jennifer being raised Jewish than Mr. Jacobs would be of Jennifer being raised Catholic.” He accordingly advised the court to allow the child to attend Catholic services with her mother and stepfather but also to attend Hebrew school in New York. Following the psychiatrist’s recommendation, the court denied the change of custody but did order that Jennifer “be raised in the Jewish Religion until her adolescence at which time she may have the right to choose her own religious persuasion or until further order of this Court.” It was further ordered that she “be exposed to Jewish Religious training in a Hebrew school in the area and vicinity of her home," but that nothing shall preclude her from “attending religious services in the Catholic Church with her mother, stepfather and step brothers and/or step sisters.” The mother brings this appeal from that order.

Opinion

It is well settled in Illinois that a decree for divorce cannot be modified or amended unless there has been a material change of circumstances since the entry thereof. (Taylor v. Taylor, 32 Ill.App.2d 45, 48, 176 N.E.2d 640; Dunning v. Dunning, 14 Ill.App.2d 242, 144 N.E.2d 535; Wade v. Wade, 345 Ill.App. 170, 102 N.E.2d 356.) A decree fixing the education of children is final and res judicata and should not be altered or amended unless new facts have arisen since the entry of the decree which make it necessary, in the best interests of the child, that the decree be changed. (Taylor v. Taylor, supra, at 48; Wade v. Wade, supra.) In a post-decree hearing to modify the child-custody provisions of a decree, the party seeking the modification has the burden of proving altered conditions. (Eggemeyer v. Eggemeyer, 86 Ill.App.2d 224, 230, 229 N.E.2d 144; Birth v. Birth, 59 Ill.App.2d 240, 207 N.E.2d 114.) Every presumption is indulged in favor of the validity of the decree, and if its provisions are to be changed, the burden of proof is on the moving party to show why the change should be made. Eggemeyer v. Eggemeyer, supra, at 230; Birth v. Birth, supra, at 243.

In all matters concerning the custody of children, the paramount issue is their welfare. The fact of changed conditions, in itself, is not sufficient to warrant modification of the custody provisions of the decree, unless such changed conditions affect the welfare of the child or children. (Eggemeyer v. Eggemeyer, supra, at 231; Birth v. Birth, supra, at 244.) As stated in Dunning v. Dunning, 14 Ill.App.2d 242, 246, 144 N.E. 2d 535, and reaffirmed in Taylor v. Taylor, supra, at 48: “ * * “The changing circumstances must be, obviously, those that affect the children, —not those that concern the parents.”

Here, the original divorce decree gave Jennifer’s mother the sole responsibility for the care, custody, control and education of the child. The right to control the education of the child includes all facets and dimensions of that term. (Cf. People ex rel. Burr v. Fahey, 230 Ill.App. 143, 153 — 4.) Yet, defendant here petitioned the court to modify that decree and order that the child receive education in a Hebrew school. In oral argument here, in support of the trial court’s order regarding the child’s attendance in Hebrew school in New York, defendant’s attorney stated:

“Obviously, if the Hebrew School is there, then in that community there is the opportunity for the child to receive the Jewish education. Judaism, basically, as was brought out in the trial court, is a religion which is education centered, and that’s why the issue of the child’s education seems to become important.”

Custody may, and frequently does, embrace provisions for religious training, and a modification of a custody order of this kind is governed by the same rule requiring a material change of circumstances. (Gottlieb v. Gottlieb, 31 Ill.App.2d 120, 175 N.E.2d 619.) To justify such a modification of the original decree here, it was incumbent upon the father to show some change in circumstances affecting the welfare of the child. The psychiatric report indicated that (1) the issue of religious education was “not significant” to the child; and (2) whether or not Jennifer received instruction in the Jewish religion would have no significant effect upon her. However, the psychiatrist felt the mother could adjust more easily to the child being raised Jewish than the father could adjust to the child being raised Catholic, and as a result he felt that instruction in the Jewish faith would improve the child’s relationship with her natural father. No consideration was apparently given to the possible effect on Jennifer of the reaction of the stepfather and the stepbrothers and/or stepsisters with whom Jennifer resides during the greater portion of the year.

Counsel indicate that this is a matter of first impression in Illinois. We are not convinced of its novelty. Similar questions arose before this court in Gottlieb v. Gottlieb, supra. There, provisions for the religious instruction of the children in the Jewish religion were incorporated in the divorce decree. The custodian subsequently enrolled the child in a parochial school and contended that the child had converted to Catholicism. The trial court modified the original decree, striking the provisions for education in the Jewish religion. This court reversed, stating at pages 136-137:

“Defendant raises no question concerning the fitness and competency of plaintiff to retain Steven’s custody. He asks only ihat she abide by her agreement and the decree, that she raise Steven in the Jewish faith and send him to a public school. When the chancellor saw fit to incorporate paragraph 14 in the decree, it must have been his considered judgment that the interest and welfare of the children would best be served by its provisions. It should not be inferred from what has been said that the interests of Steven would not be well served if he were educated in another religion, but it is not within the province of the court to weigh one faith as against another. ‘The law knows no heresy, and is committed to the support of no dogma, the establishment of no sect.’ Watson v. Jones, 13 Wall. 679, 728 (1871).
We do not hold that agreements of parties with respect to the religious training of children should be enforced in all situations, but in the absence of clearly established circumstances indicating that the best interests of the child would be served by modification we do not feel that solemn agreements incorporated in a decree and sanctioned by the court should be so lightly cast aside * *

To the same effect is this court’s decision in Taylor v. Taylor, 32 Ill. App.2d 45, 176 N.E.2d 640. There, the decree awarded the mother the right to control the religion in which each child was to be raised and awarded the father the right to determine the education which each child was to have and the schools each was to attend. The mother, who had custody of the children, enrolled them in Catholic schools, contending such was her right under the decree awarding her he right to control the religion of the child. The father sought to send one child to a nonsectarian boarding school. The trial court ordered that portion of the decree allowing the father to determine the education of the children stricken as interfering with the mother’s right to control the religious education of the child. This court again reversed, finding no change of circumstances to justify the modification of the original .decree. It was stated, at page 48, “Nothing has occurred in the instant case which would warrant the court in modifying the divorce decree.”

While these decisions involve specific provisions regarding religious education founded in consensual agreements incorporated in a divorce decree, we feel the same principles apply here. As stated in Jacobs v. Jacobs, 328 Ill.App. 133, 139, 65 N.E.2d 588, “After a decree is rendered, the rights of the parties rest upon the decree and not upon their agreement.” The original decree here awarded the mother the “sole- care, custody, control and education of the child.” We believe that the award of control and education must be viewed as embracing all the ramifications of those terms. In this regard, education in a limited sense involves the right here to determine, at the least, the schools the child shall or shall not attend. A broader interpretation of the term might include “religious education,” but we need not venture that far. The original decree of the court awarded the mother the right to control the education of the child. That right encompasses the right to select the schools the child shall attend. No material change of circumstances affecting the child’s welfare was presented to the trial court. The father’s recent activity as an orthodox religionist is not such a material change of circumstances affecting the child?s welfare as to justify modification of the original decree.

We note that the trial court did not believe the circumstances were such that the welfare of Jennifer required a change of custody. We agree, and it is our belief that the court improperly based its decision to modify on which of the parents would be hurt less. Although of importance collaterally insofar as the court’s ruling will affect the child’s relationship with that party, we do not feel that such a change of circumstances affecting Jennifer’s well-being has been presented to justify changing the original decree. We are of the opinion that defendant has not carried his burden of proving such a change of circumstances that the best interests of the child necessitates modification of the decree.

Defendant has referred this court to Boerger v. Boerger, 26 N.J. Super. 90, 100, 97 A.2d 419, 424 (1953), for the proposition that, * * in dealing with the custody and upbringing of an infant, the welfare of the child is the controlling consideration * * There it was also stated that a court is permitted “* * *• to exercise its discretion in a manner that will meet the circumstances of each case.” We do not disagree with this principle. (Eggemeyer v. Eggemeyer, supra.) We have merely found that the best interests of the child here do not justify a modification of the decree.

Although the judgment below must be reversed, it should be recognized that the trial court was faced with an extremely difficult decision. From the record, it seems apparent that regardless of the outcome, one of the parties would not be reconciled with the decision, and this discontent would be reflected in some way upon the innocent child. We would urge, therefore, that in the child’s best interests, the mother Will not foreclose her daughter from gaining an awareness of the Jewish religion and its heritage and thus be able, at some time in the future, to make her own choice of religion.

The order of the trial court modifying the original decree here is reversed, and the cause is remanded with directions to enter an order denying the petition of defendant.

Reversed and remanded with directions.

BARRETT and DRUCKER, JJ., concur.


author: Mr. JUSTICE BARRETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Stubbs, Defendant-Appellant.
    (No. 59924;
    First District (5th Division)
    December 13, 1974.

      Paul Bradley, and Margaret Maxwell, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Alan L. Fulkerson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Defendant was indicted for possession of a controlled substance in violation of section 402 of the Illinois Controlled Substances Act (Ill. Rev. Stat. 1971, ch. 56½, par. 1402). Following a bench trial, defendant was found guilty and sentenced to a term of 3 to 9 years. It is from the judgment and sentence of the trial court that defendant appeals.

Two issues are raised on appeal: (1) whether the trial court violated defendant’s constitutional right to be present at all stages of the proceedings against him by holding a hearing on defendant’s motion to suppress evidence in defendant’s absence, and (2) whether defendant was proved guilty beyond a reasonable doubt.

On December 15, 1971, a preliminary hearing in this matter was held before Hon. Arthur V. Zelezinski. Defendant was present but did not testify. The arresting officer, Thomas Small, testified to the following events. On November 24, 1971, Small was on routine patrol with his partner. At approximately 1 A.M., they answered a call concerning a man with a gun at 430 West 66th Street. The description was that of a black male in a three-quarter-length brown jacket and dark clothing. While proceeding to 430 West 66th Street, the officers observed defendant in the vicinity of 6400 South Stewart. At the time, defendant was the only person on the street, and he fit the description given to the officers. Small got out of the car, announced that he was a police officer and told defendant that he wished to speak to him. According to the testimony of Small, defendant then turned and started to run. Small began to pursue defendant on foot while his partner followed in the squad car. After a chase of approximately IV2 blocks defendant entered a cul-de-sac and Small apprehended him. Prior to defendant’s apprehension, Small observed a plastic bag in defendant’s hand. Immediately before his apprehension, defendant threw the plastic bag into a crevice which separated the two buildings. The crevice was approximately 11 inches wide.

Defendant was searched by Small and taken to the squad car by his partner. Small then searched the crevice until he located the plastic bag. Although the crevice was filled with trash, Small testified that he was sure he had recovered the object which defendant had thrown. The plastic bag contained 14 tinfoil packages which contained a white powder believed at the time to be heroin. The officers then placed defendant under arrest. Small later sent the contents of the bag to the Chicago Crime Detection Laboratory where it was analyzed as 31.52 grams of heroin.

Following Small’s testimony, a finding of probable cause was entered and the case was bound over to the grand jury.

On August 4, 1972, at 9:30 A.M., defendant’s motion to suppress was heard. When the case was called, defendant’s attorney informed the court that defendant was not present. In reply, the court stated:

“Well, we don’t need him unless you may wish to call him it « # ”

Officer Small was then called by defense counsel, and his testimony was substantially the same as that which he gave at the preliminary hearing. After hearing the testimony of Small and the arguments of counsel, the court entered a finding that there was probable cause to stop and arrest defendant. Defendant’s motion to suppress was denied. The State then moved for a bond forfeiture warrant which the court continued until 11 o’clock that same morning.

At 11:05 A.M., defendant appeared before the court without his attorney. He advised the court that he was unable to be in court earlier that morning because he had difficulty finding someone to care for his three children. Because defense counsel was not present, the cause was continued until 2 P.M. that afternoon. The trial court specifically admonished defendant to be back at 2 o’clock.

At 2 P.M. on August 4, 1972, defendant again failed to appear as ordered earlier that morning. At this point, the court permitted defense counsel to withdraw from the case. The State’s Attorney stated for the record that defendant was informed that the motion to suppress had been denied. The State then motioned for a bond forfeiture warrant, and the trial court doubled defendant’s bond.

On January 31, 1973, the case proceeded to trial with a public defender representing defendant. After waiving his right to a jury trial, defendant motioned to quash the arrest and suppress tire evidence. The court noted that the question had already, been decided and denied defendant leave to file his motion.

The only other witness called by the State was a police chemist who testified that the recovered substance was heroin and that the total weight of the powder was 31.52 grams.

Defendant testified that when he was stopped on the street by Small, he was on his way home from work. The officers stopped him and called him over to their squad car where he was asked if he had a gun. Defendant said no. Small then said that they had a call for a man with a gun in a brown leather jacket, brown pants and a beige shirt. Defendant testified that after he advised Small that he was wearing green pants and shirt and a black leather jacket, the officer put him against the car and handcuffed him. Small then went to search the area where defendant had been. While Small was searching the area, five or more police officers arrived. The officers tore a drainpipe from a nearby building and started raking through the debris in the crevice looking for the gun. Approximately twenty minutes later, the officers returned to the car with a plastic bag and asked defendant if it belonged to him. Defendant informed the officers that it was not his.

After arguments, the court found defendant guilty and sentenced him to a term ©f 3 to 9 years in the Illinois State Penitentiary.

Opinion

The first issue raised on appeal is whether or not the disposition of defendant’s motion to suppress evidence in his absence constituted reversible error. Defendant contends that the denial, in his absence, of his motion to suppress deprived him of the right to be present at all stages of the proceedings against him.

It is well established that the defendant in a criminal case has a constitutional right to be personally present at all stages of his trial. (People v. Mallett, 30 Ill.2d 136, 195 N.E.2d 687.) However, defendant’s right to be present at all stages of trial against him may be waived. (People v. Meschino, 10 Ill.App.3d 557, 294 N.E.2d 712.) Where a defendant is at liberty on bail and voluntarily absents himself from his trial after it has begun, he waives the right to be present and the court can proceed without him.

It is clear from the record that defendant knew his motion to suppress the evidence was to be heard on August 4, 1972. Defendant had 4 days’ notice. On August 4, defendant’s counsel stated:

“We were here Monday [July 31, 1972] Judge. Your Honor told Mr. Stubbs to be here at nine-thirty today. I told him to be here at nine-thirty today.”

On the basis that defendant .voluntarily absented himself from this stage of his trial, the trial court assumed waiver and proceeded to hear evidence on the motion to suppress. Defense counsel was present and took part in the hearing on the motion.

When defendant later appeared before the court at 11:05 A.M. he indicated that he had no intention of waiving his right to be present. He argued that his absence was necessitated by his inability to find someone to care for his three children. The record indicates that the lower court had continued the case until 11 A.M. after its disposition of defendant’s motion to suppress in order to entertain the State’s motion for a bond forfeiture warrant. When defendant appeared at 11:05 A.M. he informed the court that he had been in contact with one of his attorney’s assistants and had been informed by him that his attorney would call the trial judge between 11 A.M. and 11:30 A.M. that morning. When defendant’s attorney failed to appear or otherwise contact the court between 11 A.M. and 11:30 A.M. that morning, the trial judge continued the matter until 2 P.M. that afternoon. Although defendant was present in court when his case was continued to 2 P.M. he once again failed to appear at that time.

The record indicates that defendant had ample opportunity and notice to be present for the disposition of his motion to suppress. Although the court denied the motion at the 9 A.M. hearing, it continued the case to two other times during the same day, thus giving defendant, two more opportunities to be heard. Defendant appeared at 11 A.M., was informed of the disposition of his motion and was told to return at 2 P.M. At 2 P.M. defendant, for the second time that day, failed to appear.

Defendant’s right to be present at all stages of the proceedings co-exists with his duty to present himself in court when he has been released on bail. To allow defendant to stop trial proceedings by virtue of his voluntary absence would enable him to profit from his own nonfeasance. (People v. Steenbergen, 31 Ill.2d 615, 203 N.E.2d 404.) Although this court is loath to proceed with court hearings in a defendant’s absence, we cannot encourage defendants to treat their court appearances as discretionary. Defendant had adequate notice of the date and time his motion to suppress evidence was to be heard. His absence from that heaiing was voluntary. At the hearing, defendant was represented by counsel who had adequate opportunity to and did examine Officer Small. In this case, defendant ignored his right to be present. The trial court did not err in heaiing and deciding defendant’s motion to suppress in his absence. Furthermore, not only was defense counsel able to examine Officer Small at the hearing, but he was again able to do so at the trial. Also, defendant was able to testify, at trial, on his own behalf. Therefore, no prejudice was demonstrated by the trial court proceeding in this fashion.

The next issue raised on appeal is whether or not defendant was proven guilty beyond a reasonable doubt. Defendant argues that the evidence, even when considered in a light most favorable to the State, is contradictory and unbelievable and not sufficient to prove him guilty of the possession of narcotics. We cannot accept defendant’s contention. Although there are some contradictions in Officer Small’s testimony, we hold that possession of narcotics was proven beyond a reasonable doubt. The alleged discrepancies in the testimony were fully set forth at trial. It was the function of the trial court to determine tihe credibility of the witnesses. Once the trial court has made its determinaion, we are loath to substitute our judgment for that of the trial court merely on account of conflicting evidence. People v. Clay, 55 Ill.2d 501, 304 N.E.2d 280.

We hold that there was sufficient evidence to link defendant to the plastic bag which contained heroin. Defendants guilt was clearly and properly established.

For the foregoing reasons, the judgment entered below is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wardell Vaden, Defendant-Appellant.
    (Nos. 59765, 59766, cons.;
    First District (5th Division)
    December 13, 1974.

      James J. Doherty, Public Defender, of Chicago (Lawrence J. Czepiel, Assistant Public Defender, of counsel), for appellant.
    i Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendants were convicted of attempt (theft) in violation of section 8 — 4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 8 — 4) after a bench trial and were each sentenced to terms of nine months. Defendant Vaden was granted work release. Both defendants contend that (1) the State failed to prove venue beyond a reasonable doubt, and (2) the complaints were fatally defective.

The following pertinent evidence was adduced at trial. For the State:

Theodore Reineking.

As he was walking south under a viaduct at or near Cicero and Kedzie Streets in Chicago at about 4:45 P.M. on September 29, 1972, defendants blocked his way. Vaden asked him if he “had a match” and Kearney drew a gun, pointed it at the witness’ chest and demanded his wallet. Reineking pushed the gun away and fled across Cicero Avenue yelling to some friends that the defendants had a gun. At that moment, two police officers arrived and arrested the defendants. Reineking identified both defendants at the scene.

Joseph Dier

He is a Chicago police officer assigned to the Fifteenth District Tactical Unit. On September 29, 1972, while riding in a vehicle on or near Cicero and Kedzie in Chicago, he observed defendants running and saw defendant Kearney throw a gun onto a nearby railroad embankment. The gun was recovered, Reineking identified the defendants, and they were arrested.

Defendants presented no evidence and defendants were found guilty of attempt (theft).

Opinion

Both defendants contend that the State failed to prove venue beyond a reasonable doubt. They base their contention upon the fact that Cicero and Kedzie Streets, the place where the crime was said to have occurred, actually do not intersect in Chicago. In a criminal case, the State must prove venue beyond a reasonable doubt. Venue is proof of the county in which the crime occurred. (People v. Pride, 16 Ill.2d 82, 86, 156 N.E.2d 551, 553-554.) In the instant case, the complaining witness repeatedly testified that the incident occurred in Chicago, Cook County, Illinois. Also, the arresting officer, a Chicago policeman, testified that the arrest took place at the scene of the crime, in Chicago, Cook County, Illinois. Notwithstanding the fact that Cicero and Kedzie do not intersect in Chicago, we believe venue, the county in which the crime occurred, was sufficiently proved here.

Defendant Wardell Vaden next contends that the complaint is fatally defective because it fails to allege that he committed an offense. He points out that he is named in the complaint as the victim of the crime. The complaint alleges that:

“Wardell Vaden has, on or about 29 Sept 1972 at Cook County Illinois committed the offense of Attempt in that he with intent to commit the offense of theft, attemped to take property from the person of Wardell Vaden without his consent and that said property was United States Currency of the value of less than $150.00 USC with the intent to permantely [sic] deprive the said Theodore Reineking of the use and benefit of said property in violation of Chapter 38 Section 8 — 4 ILLINOIS REVISED STATUTE AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF THE STATE OF ILLINOIS.” (Emphasis added.)

The complaint was signed by Theodore W. Reineking.

In the absence of prejudice, formal defects in a complaint do not justify dismissal of the complaint (Ill. Rev. Stat. 1971, ch.38, par. Ill— 5(a)) or reversal of a conviction. (People v. Jankowski, 391 Ill. 298, 63 N.E.2d 362; People v. Gilmore, 101 Ill.App.2d 447, 243 N.E.2d 473.) In the instant case, considering that Theodore Reineking’s name is mentioned in the body of the complaint as the victim of the crime and Reineking signed the complaint, we can only conclude that the simultaneous use of defendant’s name in the body of the complaint as the victim of the crime is a misnomer which will not justify reversal. Furthermore, we note that defendant failed to call this formal defect to the trial court’s attention either by a motion either to quash the complaint, to dismiss, or in arrest of judgment. In these circumstances, this failure precludes defendant from raising this issue on appeal. (People v. Day, 404 Ill. 268, 88 N.E.2d 727.) The defect was waived.

Defendant Harry Kearney also contends that the complaint is fatally defective because it fails to allege that he committed an offense. He points out that the words “of theft” were penciled into the complaint and concludes that they must have been added without defendant’s knowledge and without the court’s permission. The complaint alleges that:

“Harry Kearney has, on or about 29 Sept 72 at Cooo [sic] County Illinois committed the offense of Attempt in that he with fire intnet [sic] to commit the offense of theft attempted to take property from the person of Theodore Reineking without his consent and that the said property was less than $150.00 USC, with the intent to permantely [sic] deprive the said Theodore Reineking of the use and benefit of said propei*ty in violation of Chapter 38 Section 8 4 ILLINOIS REVISED STATUTE AND AGAINST THE PEACE AND DIGNITY OF THE PEOPLE OF THE STATE OF ILLINOIS.” (Emphasis added denotes insertions into the complaint in pencil.)

The complaint was signed by Theodore W. Reineking.

In Illinois, insertions or additions in an indictment are presumed to have been made before or at the time of its execution. (See People v. Meyer, 405 Ill. 487, 91 N.E.2d 425.) We believe this rule is equally applicable to a complaint. Therefore, the words “of theft” in the instant complaint are presumed to have been added before or at the time the complaint was executed. Furthermore, there is no evidence supporting defendant’s conclusion that the insertion was made after trial without his knowledge or the court’s permission. Nothing on the face of the complaint supports this conclusion and defendant did not question the validity of the complaint at trial. In these circumstances, the complaint was not fatally defective.

Therefore, the judgments of the circuit court of Cook County are affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Vincent M. Geraci, Defendant-Appellant.
    (No. 59869;
    First District (5th Division)
    December 13, 1974.

      Rehearing denied January 10, 1975.

    Howard T. Savage, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.