text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Earnest Carter et al., Defendants-Appellants.
    (No. 54149;
    First District
    — November 5, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Herbert Becker and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Zenon Forowycz, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

OFFENSE CHARGED

Rape. Ill. Rev. Stat. 1967, ch. 38, par. 11 — 1.

JUDGMENT

After a trial by jury, both defendants were found guilty; Carter, who was 19 years old, was given a sentence of four to seven years, and Price, who was 16 years old, was committed to the Illinois Youth Commission for a term not to exceed the maximum term for the offense of rape.

CONTENTIONS RAISED ON APPEAL

The defendants were not proven guilty beyond a reasonable doubt. In support of this point, defendants make the following contentions:

(a) The trial court improperly denied defendants’ motion to suppress the in-court identifications which were tainted because (1) defendants had not been assigned an attorney at the time of a hospital identification (there was no line-up), and (2) there was no determination that the identifications had an independent source.

(b) The testimony of the victim was not sufficiently clear and convincing, nor was it adequately corroborated.

(c) The alibi tendered by defendants should not be disregarded where the identification of defendants is unsatisfactory.

EVIDENCE

Equilla Jackson, for the State:

At the time of the trial, she was single, 20 years old, lived with her mother, and had one child two years old. At approximately 10:30 P.M. on July 16, 1968, she and her boyfriend, Willie Evans, went to Douglas Park. They were sitting on a blanket listening to a portable radio when a boy came up and asked if they had seen anyone pass with a dog. He came back ten minutes later and asked the same question. He was standing six or seven feet away for three or four minutes when he asked the question, was wearing bright gym shoes, dark pants and a dark shirt. At the trial, she identified defendant Carter as this boy. The boy left and returned a third time, this time accompanied by another boy and a dog. Evans told them to move the dog and they replied that the dog would not bite. After 15 or 20 minutes, the boys left. She identified the second boy as defendant Price, whom she had seen two or three times a week for four weeks around the Harrison High School prior to that night.

She and Evans remained sitting, and 15 minutes later the boys and dog returned. The boys “put the dog on them,” saying “sic em.” As they tried to get up and leave, Price told them to sit where they were. They sat down. Evans then broke loose and started running, being chased by Carter and the dog. She was going to run, but tripped over the radio. When she tried to get up, Price pushed her down, held her hands, and pulled her panties down as she struggled. He then had intercourse with her. Carter then returned and performed the same act while Price held the dog. When she had started hollering, Carter pulled out an eight-inch knife and threatened her. He punched her before leaving.

After they left, she folded the blanket, fixed her clothing, and took her radio. She was nervous and heard Evans calling for her. Evans came back with police about 25 minutes after leaving, and she gave them a description of the boys. She then got in the car with the police and drove around looking for the boys before they took her to Mt. Sinai Hospital where she was examined by a woman doctor for about one hour. She had bruises on her face where Carter punched her. She identified her panties (later introduced in evidence) upon which were two rips which had not been there when she had left home on the night in question.

While she was in the hospital she saw defendants in her room. The police asked her to identify the boys as her attackers, and she did.

Willie Evans, for the State:

He corroborated the testimony of Miss Jackson concerning their meetings with defendants in the park. He identified both of them in court. In addition, he said that the dog was large, either a German Shepherd, Boxer, or mix. About 40 or 50 feet from where they were sitting was a building with a light on it. They could also see the street lights on Ogden Avenue. He was able to see the faces of the defendants. When they returned with the dog a second time, he stood up, and one of the boys said, “You are not going any place.” The witness said, “Come on, Equilla, let’s leave.” Carter then came up behind him with the dog and he began to run, being chased to Ogden and Marshall Boulevard by Carter and the dog. He flagged down some people in a car, but they would not help him. He then flagged down some plainclothes policemen. He told them what was happening, and ran back into the park with the police. They found Miss Jackson, who was fixing her clothes. He rode through the area with the police and Miss Jackson, and they gave a description of the boys to the police. The boys were teen-agers, and he noticed the way they were dressed, and their faces. One of them had a process hair-do.

Officer Raspberry, for the State:

On July 16, 1968, he was on duty with his partner, Dennis Fencl. They were in plain clothes in a car when he saw Willie Evans in the middle of the street at Marshall Blvd. and Ogden Avenue. After having a conversation with him, they followed him into the park where they saw Equilla Jackson. She was walking toward Marshall Blvd. from the park, pulling her pants up. Her hair was in disarray. She said she had just been raped, and was in a great emotional state. She was disturbed and could not talk at the time. They all went through the park looking for the offenders before taking Miss Jackson to the hospital.

After getting a description of the offenders, he and his partner went back to the park area where they saw two suspects who fit the description given by Miss Jackson. They were standing in front of a house and had a brown dog with them that looked like a Boxer. They placed the two men, identified as defendants, under arrest at that time. Carter was wearing a black sweatshirt, dark pants, and white gym shoes. Price was wearing dark pants and white shirt, and had long processed hair, as Miss Jackson had described. The dog ran away. At the police station, he took the under shorts from both defendants and placed them in a bag. He identified them as exhibits later introduced in evidence.

He took defendants to the hospital and asked Miss Jackson if these were the men who had raped her. Their hands were handcuffed behind their bodies. She replied that they were the ones who had done it.

He remembered that Miss Jackson told him they had threatened to beat her if she did not submit, and that she had been threatened with a knife, but he did not mention a knife in his police report. No weapons were found on defendants.

Officer Fencl, for the State:

His testimony was essentially the same as that of Raspberry. Additionally, he stated that when they were in the park at about 11:30 P.M. the lighting conditions were good at the place where the incident was said to have taken place.

Joseph Price, for the State:

He is a microanalyst in the Crime Laboratory who examined the exhibits brought to him by the police. He observed a hole in Miss Jacksons panties, and found a stiffness of the cloth at the crotch, which, when extracted and sampled, was determined to be dried mucous containing spermatazoa. He also examined the shorts of both defendants, and found stiffness and mucous stain in the crotch area, but no spermatazoa. Such stains are commonly found on a person’s undergarments after an ejaculation, but could have been caused by something else, and their age was impossible to determine. Vaginal smears from the hospital also disclosed the presence of sperm.

Kattie B. Johnson, for the defense:

She is a housewife and for eight years has been the pastor of the Church of God and Christ, which is in the basement of the building she lives in. Defendant Carter is a member of her church, and he was in church between 7:30 and 10:00 P.M. on the night when he was arrested. After church, Carter went upstairs with her, her son, husband, and daughter, Margie Johnson, and they remained there until 10:30. She does not know where Carter went when he left.

She also knows Price, who has been in church with Carter. Carter has a brown Boxer dog.

Margie Johnson, for the defense:

She saw Carter in church the night he was arrested. They left church at 10:00 and went upstairs until 10:30. She did not know where Carter went when he left. Carter has a dog.

Wilma Carter, for the defense:

Defendant Carter is her son and she knows Billy Price, but did not see Price on the day Carter was arrested. She and her son left to go to different churches around 6:30 or 7:00 on the evening her son was arrested. She saw him about 10:30 when he took her home. He did not stay long because she told him that Price wanted the dog picked up. Defendants brought the dog, a brown Boxer, home about 10:45. Carter came inside, but Price left. Her son stayed a couple of minutes and then left. She did not know where he went. The dog stayed home all night. She next heard from her son when he called from the police station.

Earnest Carter, in his own behalf:

He was arrested on July 16, 1968. He saw his mother that day when he came home from work about 5:30 P.M. He went to church about 6:30 and the services lasted until 10:00. He went upstairs with his girl friend and her mother and stayed until 10:30. He then left, picked up his mother when she came out of church, and took her home. He stayed home about five minutes and went to look for his dog, a Boxer. There are five or six other Boxers in the neighborhood. He found his dog with Price at the corner of 19th and Kedzie, about a block or block and a half from Douglas Park. He has seen many people walk their dogs in Douglas Park. He brought the dog home in his car. He then drove to a poolroom on 22nd and Troy, arriving there about 10:45 P.M. There were other people in the poolroom and he left about 12:30. Price was with him in the pool hall, where they shot a couple of games. Five minutes after leaving the pool hall, he and Price were arrested near the comer of 21st and Albany. His dog was home at that time. He does not know either Equilla Jackson or Willie Evans. He did not rape Equilla Jackson.

The night he was arrested, he was wearing blue jeans, a black sweater, and white gym shoes. He goes to the pool hall every night and was there often in July. The owner, Willie Dixon, was there the night he was arrested, but he did not know if Dixon knew he was there.

Billy Price, in his own behalf:

On the night of July 16, 1968, he went to Carter’s house and got Carters dog, a Boxer, from the back porch. Carter was not at home. He walked the dog in the park, as he had done many times before. He had seen many other people walking Boxers in the park. He saw three men with a large dog sitting in the park and he talked with them for 15 or 20 minutes. They all left together and he went in another direction out of the park. On his way out, he ran into Carter and they took the dog to Carters house where Carter went upstairs, while he remained outside. Carter returned and they went to the poolroom where he saw many people. Carter played pool with a Puerto Rican fellow. After being in the poolroom for an hour or an hour and a half, they left and saw many police cars in the area. Since Carter had no license plates on his car, he parked it. They sat down and about five minutes later the police came around 21st Street to Albany and picked them up. Carter’s dog was home at that time. He does not know Miss Jackson, did not talk to her in the park, and did not rape her.

On the night in question, he was wearing a white shirt, a scarf, and had processed hair.

George Brobst, for the defense:

He is an investigator for the Public Defender of Cook County. He was called to identify four photographs taken by himself of a brick tool shed in Douglas Park near Ogden and Sacramento, which were admitted into evidence. (There were no lights on the building in the photographs.)

Ernest Wortham, for the defense:

He is a florist who has been taking care of the Douglas Park Gardens for eight years. He was shown the photographs taken by Brobst and testified that there were no lights on the tool shed or on a pagoda as shown in the photographs.

Frank Draus, for the State:

He is a State’s Attorney’s photographer. He was called to identify three photographs he took of a building in Douglas Park which is used as a washroom facility, and which is west of California Avenue near a baseball diamond. The building has lights on the structure on both its north and south sides. (They can be seen in two of the photographs.) The three photographs were admitted into evidence.

OPINION

Defendants’ first contention is that their motion to suppress the in-court identification was erroneously denied. The correctness of this ruling must be examined in light of the testimony adduced at a pre-trial hearing on defendants’ motion to suppress. Only three witnesses testified at that hearing, and their testimony which related to the identification issue follows:

Officer Raspberry:

His preliminary testimony was the same as at the trial. After following Willie Evans into the park, he saw Equilla Jackson, who stated that she had just been raped by two Negro boys who scared her boyfriend off with a Boxer dog. After cruising the park for a while, they took her to the hospital. On the way, she described one of the assailants as a male Negro, about 18 years old, stockily built, with white gym shoes, blue levi pants, and a dark sweatshirt. The other boy was about six feet tall, slender, wearing a white shirt, dark pants, and long processed hair. He wrote these descriptions down. Returning to tire park, they saw defendants, who fit Miss Jacksons descriptions. He identified them in court as the boys he arrested. They took defendants to the hospital. When they were walking to the emergency room, unaware of Evans’ presence, Evans jumped up, pointed his finger, and said, “These are the two, officer, these are the two.” They then brought defendants into Miss Jackson’s room without forewarning her, and told her that these were the suspects they had picked up from her description. She looked up immediately and said, “Yes, sir, these are the two who did it.”

Equilla Jackson:

The first time the boy came looking for another boy with a dog, he was standing ten feet from her for about five minutes. There were electric lights around the area, one being on a building 25 to 30 feet away, and she could see the boy’s face. She described him [Carter] as a Negro, heavy set, almost 180 or 190 pounds, sort of short, wearing white gym shoes, dark trousers, and a dark shirt. When he returned in ten or fifteen minutes, she saw his face a second time. When he returned with his friend and a dog, she saw both boys’ faces as they stood in front of her for about 15 minutes. The second boy [Price] weighed about 130 or 140 pounds, wore dark shoes, dark trousers, and a white shirt. She had previously seen him around school daily for a couple of weeks, but did not know his name at that time.

As Price raped her, he was on her for five or ten minutes, and his face was very close to hers. When Carter returned, he jumped on her and was on her for about five minutes.

She gave the officers a description of the boys and told them that they had a dog. It was only about ten minutes after she had seen them in the park that she saw them at the hospital. The police told her they had someone outside that could have been the boys; that they had picked up two suspects based on her descriptions. They then brought defendants into the room.

Willie Evans:

About 11:00 on the night in question, a man, identified as Carter, came up to Miss Jackson and him and asked about a dog. Carter left, returned once again, and returned a third time with Price and a dog. Price and Carter left with the dog after being asked to go away, but they came back a fourth time.

There was enough light to see what was going on. There was a light which they could see on a building about 25 feet from where they were in the park. That night he identified defendants who were in the squad car in Officer Raspberry’s presence.

At the conclusion of the hearing on the motion to suppress the hospital and in-court identifications, the court held that the hospital identification should be excluded, saying for the record:

“Viewing the testimony in its totality, however, I feel that there is, from that evidence, every indication that these witnesses do and could have the basis for an independent recollection and independent identification, and, therefore, that portion of the motion which relates to in-court identification is denied.”

The State admitted that the identification at the hospital was tainted. We make no ruling as to the admissibility of the hospital identification. The only question remaining as to this point, then, is whether the record supports the finding of the trial court that the in-court identifications had an adequate, prior, independent source. (Gilbert v. California, 388 U.S. 263, 272; United States v. Wade, 388 U.S. 218, 242.) In People v. McMath, 104 Ill.App.2d 302, 313, affirmed 45 Ill.2d 33, cert. den. 400 U.S. 846, we stated the test for the admission of the in-court identification in this type of situation:

“If, however, the testimony does establish an unfair pretrial identification confrontation, the subsequent in-court identification may nevertheless be admissible if the State shows, by clear and convincing evidence, that such in-court identification had an independent origin, arising from other uninfluenced observation of the defendant.” [Citation.]

See also: People v. Cook, 113 Ill.App.2d 231, 236 — 37.

With regard to their ability to observe defendants in the park, both Miss Jackson and Willie Evans testified that they saw Carter four times and Price twice on the night of the incident. They both said that there were lights in area and Miss Jackson said she could see her assailants’ faces. She had also recognized Price as someone she had seen before. The photographs in evidence appear to have no probative value on the question of lighting. One set of photographs depicts a building without lights, and the other set shows a building with lights. The record does not disclose which one was nearest the scene of the alleged crime. Officer Raspberry testified that shortly after the incident and prior to defendants’ arrest, Miss Jackson had given him a description of defendants, which we find was reasonably specific, and was corroborated by their appearance when arrested. We conclude, therefore, that the trial court was correct in its finding that the identification witnesses had the opportunity to, and did, observe defendants in the park on the night in question, and that their subsequent in-court identifications had an adequate independent origin, uninfluenced by the hospital show-up.

Defendants next contend that the testimony of Miss Jackson was not sufficiently clear and convincing to support defendants’ conviction. We have examined the report of her testimony, and, while it does contain minor inconsistencies, we are satisfied that they are not of sufficient importance to render her testimony inherently improbable. Also, in view of all of the evidence, the fact that the police report made no mention of a knife (which Miss Jackson testified that Carter had threatened her with), and the fact that no weapons were found on defendants at the time of their arrest some time later, are not sufficiently material to raise a reasonable doubt as to defendants’ guilt.

This is not a case in which the testimony of the victim stood alone and uncorroborated. Her testimony was veiy substantially corroborated by that of Willie Evans who recounted defendants’ harassment of both himself and Miss Jackson before he ran for help, and by the police officers who observed Miss Jackson soon thereafter in a highly emotional state, with her clothes and hair in disarray and her face swollen. Miss Jackson’s testimony was also supported by the physical evidence of her ripped panties, and the findings of the micro-analyst as to her panties and defendants’ shorts.

Defendants argue further that the lack of a report or testimony from the physician who examined Miss Jackson at the hospital is a serious defect in the State’s corroborating evidence. They call our attention to two cases in which convictions for rape were reversed where the court noted the absence of evidence of a medical report, although the prosecutrix had been examined after the alleged rape. (People v. Faulisi, 25 Ill.2d 457, 462; People v. DeFrates, 33 Ill.2d 190, 195—96.) In both of these cases, however, the act of intercourse was admitted, and the question was whether it was performed forcibly or with the consent of the prosecutrix. In each case, the court found that the testimony of the prosecutrix as to the use of force was essentially uncorroborated and improbable, thus giving more than ordinary significance to the lack of the medical report which could have disclosed bruises or other evidence of force. In any event, in the instant case, the presence of sperm in vaginal smears, was testified to by the person who performed that test. We find no proof defect of substance in this regard.

Defendants’ final argument is that their alibi should not be disregarded where the identification evidence is vague and unsatisfactory. The identification testimony, however, was not unsatisfactory or vague. Its sufficiency was rather clearly demonstrated by the fact that the police, on the basis of Miss Jackson’s description, were able to apprehend defendants shortly after the offense. The cases cited by defendants in support of this argument are therefore inapplicable. (See: People v. Gooden, 403 Ill. 455, 461; People v. Gardner, 35 Ill.2d 564, 571.) In addition, the witnesses called by defendants to support their own alibi testimony did not clearly account for defendants’ whereabouts at the precise time of the offense. Under these circumstances, the weight to be given alibi and identification testimony is for the jury to determine, and its decision will not be reversed unless the proof is so unsatisfactory as to raise reasonable doubt of guilt. (People v. Hoffman, 45 Ill.2d 221; People v. Hampton, 44 Ill.2d 41.) The jury’s guilty verdict in this case was based upon evidence which, if believed, established the defendants’ guilt beyond a reasonable doubt.

The judgment is affirmed.

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE ENGLISH

license: Public Domain

text:
    Stifel, Nicolaus & Company, Plaintiff-Appellee, v. John Coloia el al., Defendants-Appellants.
    (No. 54482;
    First District
    — November 5, 1971.

      Vogel & Vogel, of Chicago, (L. H. Vogel, of counsel,) for appellant.
    Schaller, Reilly and Daley, of Chicago, (James M. O’Shaughnessy, of counsel,) for the appellee.
   Mr. PRESIDING JUSTICE ENGLISH

delivered the opinion of the court:

Defendants appeal from a summary judgment for $9,830.10, being the amount plaintiff claims it overpaid defendants in forwarding to them the proceeds of sale of 400 shares of stock in the National Union Electric Corporation (National Union) in which plaintiff had acted as broker for defendants.

The facts are taken from the pleadings and depositions on file with the trial court. In 1959, Louis Coloia, as agent for his brothers who are the defendants, arranged for purchase of the shares in question at $3.75 per share. The shares were originally purchased through a Mr. Petruzzi at another brokerage firm, who took defendants’ account with him when he moved to plaintiff’s firm. After he left there in 1961, it was handled by Albert Hoffman.

Until 1963, Louis Coloia kept himself well advised of the status of the National Union shares by checking the newspapers. In 1966, he noticed in the paper that National Union stock was still listed on the American Stock Exchange and selling for approximately $37. He called Hoffman and asked if this was the same firm, and was told that it was. Hoffman asked him to bring the shares in for examination to verify ownership, which he did on March 3, 1966. Hoffman looked at the certificates which were dated July 14, 1959, and registered in defendants’ name, and told Louis that his brothers owned 400 shares of National Union. They discussed the growth of the company over the years, and Hoffman “advised that we stay with it” and watch its progress daily, which Louis did for about two weeks. Louis also told Hoffman, at their March 3rd meeting, that he had checked into the company’s dividend record and discovered that there had been a 500 dividend in 1964 and a 700 dividend in 1965, neither of which had been received by defendants. In his presence and at his request, Hoffman dictated a letter of inquiry concerning the unpaid dividends to the company’s registered agent, Marine Midland Grace Trust Company of New York. Hoffman later told him that he had not had a reply, and on March 19, when Louis went to see Hoffman again, another letter was written concerning these dividends.

On March 14, 1966, Louis directed plaintiff to sell 400 shares of National Union at the market price on that date for the account of his brothers, and plaintiff did so, selling 100 shares at $31.50 and 300 shares at $31.75. The following day, Louis delivered the stock certificates to Hoffman. On March 18, plaintiff sent its check in the amount of $12,-370.10 to Louis, payable to defendants. The check was endorsed, cashed, and paid on or about March 23.

On approximately April 11, plaintiff received noticed from its correspondent in New York, to whom the certificates had been sent for their purchaser, advising that there had been a reverse split of the stock in question on May 8, 1964, as a result of which two-tenths of a new onedoUar par value share had been issued in exchange for each of the then out-standing thirty-cent per value shares. Plaintiff was previously unaware of this reverse split. The result of the reverse spht was that, after that date, including the date of sale, defendants’ certificates for 400 shares actuaUy represented only 80 current shares of National Union.

On April 11, 1966, Hoffman advised Louis of the reverse split; told him, and also defendants, that their account was short 320 new shares; and requested defendants to make defivery of 320 shares, or payment therefor; neither of which defendants did.

Plaintiff’s claim, based on Count II of the Amended Complaint, was that, because of a mutual mistake of material fact, defendants were unjustly enriched by $9,830.10, being the difference in the March 14, 1966 value between 80 shares and 400 shares of National Union. Judgment was entered on that theory and in that amount.

Defendants’ first contention is that plaintiff’s motion for summary judgment was not supported by proof; specificaUy, that Section 57 of the Practice Act requires the filing of affidavits with motions for summary judgment, and that plaintiff’s motion for summary judgment was unsworn and was not accompanied by any affidavits. Plaintiff’s motion did, however, include substantial quotes from discovery depositions which had previously been filed with the court. Defendants cite Ruby v. Wayman, 99 Ill.App.2d 146, for the proposition that a motion for summary judgment must be construed most strongly against the moving party, a rule which we recognize, but it does not furnish adequate support for defendants’ contention in this case.

The summary judgment statute (Ill. Rev. Stat. 1967, ch. 110, par. 57) provides in pertinent part:

“(1) For plaintiff. Any time after the opposite party has appeared or after the time within which he is required to appear has expired, a plaintiff may move with or uAthout supporting affidavits for a summary judgment or decree in his favor for aH or any part of the relief sought.
(3) Procedure. The opposite party may prior to or at the time of the hearing on the motion file counteraffidavits. The judgment or decree sought shaH be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment or decree as a matter of law.” (Emphasis supplied.)

Supreme Court Rule 212 provides further, in this regard, that discovery depositions may be used “for any purpose for which an affidavit may be used.” Ill. Rev. Stat. 1967, ch. 110A, par. 212(a)(4).

Continuing their argument on this point, however, defendants say that plaintiffs motion, being unverified, does not supply any sworn statement that the alleged excerpts from the depositions recited in the motion are, in fact, true excerpts therefrom. We consider this contention to be wholly without merit, as the motion clearly incorporates the depositions by reference, and there has been no objection to the form of the depositions themselves. In fact, defendants have relied extensively on the depositions in their briefing of the court.

In Allen v. Meyer, 14 Ill.2d 284, the trial court had considered motions for summary judgment which made reference to depositions which, as in the instant case, had previously been duly filed with the court. In affirming summary judgment, the Supreme Court said, at page 291:

“Refore proceeding further, we should like to comment that the trial court’s procedural handling of this case was correct beyond technical argument. Rule 15 of this court expressly provides that discovery depositions may be considered in passing upon motions for summary judgment, #

Rule 15 referred to in this quotation is present Rule 191 without change in substance. Ill. Rev. Stat. 1967, ch. 110A, par. 191.

We find that plaintiff’s motion for summary judgment met all technical requirements of the applicable statute and rules.

Defendants’ second contention is that the deposition of Albert Hoffman, who had died prior to the hearing in this cause, was improperly considered by the trial court to determine that a reverse split of the stock in question had in fact occurred. The trial court, however, specifically stated that it did not consider the deposition of Hoffman:

“Depositions were filed in regard to the Defendants and I am excluding the deposition taken of the witness, Hoffman, who is deceased.”

The trial judge also indicated that he would expunge the deposition of I Hoffman from his mind. Defendants, for the first time in their reply I brief, argue that any evidence of the reverse split, outside of Hoffman’s I deposition, constitutes hearsay in that the defendants’ depositions indi- I cate only that they had learned of the reverse split through Hoffman. I They urge that no judgment can be based upon such incompetent evi- I dence. (This same objection would, of course, have been applicable ■ to the deposition testimony of Hoffman, who could only have testified ■ that he had been informed of the reverse split by Marine Midland.) The whole point comes too late, since hearsay evidence becomes part of the proof in the absence of timely objection. As stated in Town of Cicero v. Industrial Corn., 404 Ill. 487, 495:

“Testimony, although hearsay and incompetent, if received without objection is to be considered and given its natural probative effect as if it was in law admissible. Kivish v. Industrial Com. 312 Ill. 311; Ascher Bros. Amusement Enterprises v. Industrial Com. 311 Ill. 258."

Furthermore, defendant’s agent, Louis Coloia, testified as to knowledge of the reverse split through the same source from which plaintiff had obtained the information:

“Well, this Marine Midland is the one that told me about the reverse split, that is how it was.”

Had the trial court been asked to disregard this statement, and the statements of defendants concerning their knowledge of the reverse split, the court would have been correct in overruling the objections because the statements of defendants and their agent constituted admissions which are competent evidence as exceptions to the hearsay rule. On proper objection, hearsay is generally excluded because courts entertain doubt as to its trustworthiness, but there is an exception to inadmissibility where, as here, the parties or their agent testify to knowledge of a fact which is adverse to their position. This exception is fortified where the fact — the reverse stock split, in this case — was not disputed by any witness or by the pleadings.

In addition, the Amended Complaint makes a flat statement under oath that “there had been a reverse split of the common stock of National Union Electric Corporation on or about May 8, 1964, whereby Two-tenths (2/10) of a share of new One Dollar ($1.00) par value common stock of National Union Electric Corporation were issued in exchange for each share of the Thirty Cent ($.30) par value common stock of said corporation.” This allegation was not denied by defendants’ Answer.

We hold, therefore, that the trial court could properly find, as it did, that the occurrence of the reverse split had been established.

Defendants contend, next, that the motion for summary judgment was improperly allowed because the following questions of fact need to be litigated:

1. Did plaintiff exercise due care in the handling of this account?

2. Was there a mutual mistake of fact?

3. Is plaintiff, by reason of negligence, liable for any loss resulting from its transaction?

4. Should not the loss fall upon plaintiff as the negligent party permitting its occurrence?

There are two negative answers to the last two questions. First, defendants did not allege in any pleading, nor in their briefs, that they had suffered any loss whatsoever. They simply say, in effect, that they would like to keep the overpayment they received. Plaintiff’s is the only loss, present or potential. Secondly, assuming the existence of negligence, as these two questions do, the mere stating of the issues shows them to raise questions of law and not fact.

The matter of plaintiff’s alleged negligence is, in our opinion, irrelevant as a matter of law. In Salvati v. Streator Township High School, 51 Ill.App.2d 1, a party was paid two salaries due to a mistake of fact, and it was held that the payor could recover the amount erroneously paid, irrespective of the payor’s negligence. The court announced the general rule at pages 4 and 5:

“Where money is paid under a mistake of fact, which would not have been paid had the facts been known to the payors, it may be recovered. [Citation.] The fact that the person to whom the money was paid was not guilty of deceit or unfairness, but acted in good faith, would not prevent recovery of such sum [citation], nor does negligence of the payor preclude a recovery in such case (Devine v. Edwards, 87 Ill. 177).”

Further, the question of whether the money in dispute was paid out under a mistake of fact was settled as a matter of law by the case of Jenson v. Muting, 255 Ill.App. 514. The facts in that case are similar to those here, in that the parties to a stock sales transaction were mistaken as to the value of the stock, because the stock in question was an old issue which had been called for cancellation four years earlier. Both parties proceded on the assumption that they were dealing in a more valuable current stock. The appellate court noted that the stock certificates themselves being but muniments of title, their inspection would not disclose their latent defect, and the plaintiff was allowed recovery of the amount paid above the true value of the stock. It is inescapable that plaintiff in the instant case, by mistake, paid defendants more than the proceeds of sale of then stock. Whether or not this mistaken overpayment was made negligently, it may be recovered, as actions of this nature are governed by equitable principles. Defendants have no right to retain their windfall. Toombs v. L,ewis, 362 Ill. 181, 189.

The judgment is affirmed,

Judgment affirmed.

DRUCKER and LORENZ, JJ., concur,

       Count I alleged that plaintiff had been required to buy on the market 320 shares of National Union to make delivery on defendants’ sale of 400 shares, and sought to recover from defendants the amount it had paid for such shares, namely, $13,645. This count was abandoned, however, at the time of plaintiff’s motion for summary judgment.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Rosado, Defendant-Appellant.
    (No. 54766;
    First District
    — November 5, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, States Attorney, of Chicago, (Robert A. Novelle, and Martin Moltz, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant entered guilty pleas to three counts of armed robbery and was sentenced to a term of three to seven years on each offense, the sentences to run concurrently. On appeal he contends that he was denied his constitutional rights in that the court failed to fully inform him of the nature of the crimes with which he was charged and that the court did not adequately inform him of the nature of the sentences which could be imposed as a result of his plea.

Defendant was indicted for three separate offenses of armed robbery. At his arraignment on those charges he was given a copy of each indictment and through his attorney, a public defender, waived formal reading thereof and entered a plea of not guilty. Some weeks later, on October 13, 1967, defendant withdrew his not guilty plea and entered a plea of guilty. At that time the following colloquy took place.

“Mr. Banks [Public Defender]: As to Mr. Rosado, Your Honor, we ask leave of Court at this time to withdraw the plea of not guilty heretofore entered and enter a plea of guilty to said indictments. I have talked to my client and he has asked me to do this.

Is that right, Mr. Rosado?

The Defendant: Yes.

Mr. Banks: And I have explained to you the possible penalties involved because of the plea of guilty.

The Defendant: Yes.

Mr. Banks: And you are doing this of your own voluntary act, is

that right?

The Defendant: Yes.

Mr. Banks: I have also advised him that by doing so, he is waiving his right to a trial by jury, Your Honor.

Is that right?

The Defendant: Yes.

The Court: Mr. Rosado, I am going to have the prosecutor tell you how long you can be sent to the penitentiary for the crime to which you wish to plead guilty.

What is the. possible punishment?

Mr. Divane [Assistant State’s Attorney]: One to an indeterminate number of years.

The Court: You could be sent to the penitentiary for a term from one to any number of years on conviction of the crime you are pleading guilty to. Do you understand that? The Defendant: I understand.

The Court: You can be sent to the penitentiary, under the law, from one up to any number of years. Do you want to plead guilty to that crime?

I The Defendant: Yes.

The Court: You are being charged with three counts of armed robbery.

Is that right?

I Mr. Banks: That’s correct, Judge.

I The Court: You understand that, don’t you?

I The Defendant: Yes, sir.

The Court: Are you pleading guilty to these crimes because you ready are guilty?

I The Defendant: Yes, sir.

I The Court: How far did you go in school?

I The Defendant: Up to eighth grade, sir.

I The Court: Within the continental United States?

I The Defendant: Yes, sir.

I The Court: So you spealc English well, don’t you?

■ The Defendant: I understand, sir.

The Court: Let pleas of guilty be entered for the defendant as to each of the three indictments.

Mr. Divane: At this time, Your Honor, there will be a stipulation between the People of the State of Illinois, by and through John J. Stamos, State’s Attorney of Cook County, and the defendant, in his own proper person, through his Attorney, Mr. Banks, Assistant Public Defender, that the defendant is—

Mr. Banks: Twenty-five years of age.” After the pleas were entered stipulations set out the evidence which the State would have introduced on each indictment. Based upon those stipulated facts and the guilty pleas the court found defendant guilty and, after a hearing on aggravation and mitigation, sentenced defendant to three concurrent terms of three to seven years.

Opinion

Defendant first contends that the trial court, by merely mentioning the name of the offenses charged, did not fuUy inform him of the nature of the offenses to which he was entering guilty pleas. We cannot agree with defendant in this regard.

The rule is succinctly stated in III. Rev. Stat. 1967, ch. 110A, par. 401(b) which states:

The court shall not permit a plea of guilty * # # [unless the accused] understands the nature of the charge against him, and the consequences thereof if found guilty * *

In People v. Harden (1966), 78 Ill.App.2d 431, aff’d, 38 Ill.2d 559 (1967) the court construed the meaning of this section, cited at that time as Ill. Rev. Stat. 1963, ch. 110, par. 101.26(3). That court held that even though the trial court only referred to the offense by its name the defendant was adequately informed of the nature of the charge against him. The court stated at page 444:

“The noun nature’ connotes and is synonymous with the words essence, general character, kind or sort. In such sense the language of the Rule does not call upon the trial court to state to the defendant all of the acts which do or may constitute the offense.”

In making the determination of whether or not defendant understood the nature of the charge against him the court in Harden considered the entire record. In doing so it noted that prior to entering his guilty plea, defendant had received a copy of the information charging him with the offense to which he plead guilty. Although the Supreme Court did not expressly treat this matter in its opinion, it specifically agreed with and adopted this reasoning and conclusion. People v. Harden (1967), 38 Ill.2d 559, 563.

We conclude, therefore, that the defendant’s receipt of the indictments specifically detailing the offenses charged together with the trial judge’s admonition that defendant was charged with three counts of armed robbery and defendant’s comment that he understood, clearly show that the defendant was advised of the nature of the charge against him.

Defendant contends that Boykin v. Alabama (1969), 395 U.S. 238 requires that the trial court must see to it that the defendant understands the acts sufficient to constitute the offense with which he is charged. Without passing on this point we note that Boykin does not apply to this case as the guilty plea here was entered prior to June 2, 1969, and Boykin is not retroactive People v. Williams (1970), 44 Ill.2d 334, 343.

Defendant also contends that because the trial court, in its admonition to defendant, referred to the charges against him as “the crime” he was not adequately informed of the nature of the sentences which could have been imposed for the crimes to which he had entered guilty pleas. Specifically, defendant contends that he was unsure whether he was entering guilty pleas to one or to three charges. We cannot agree.

The rule is plainly set out in Ill. Rev. Stat. 1967, ch. 110A, par. 401(b) which requires that the defendant must understand the consequences of his plea of guilty. It is further stated in Ill. Rev. Stat. 1967, ch. 38, par. 115 — 2(a) (2) that the defendant must be apprised of the maximum penalty provided by law which may be imposed upon acceptance of his guilty plea.

The record in the instant case clearly discloses that the defense attorney and defendant discussed the entering of a guilty plea to the “indictments.” The defense attorney also addressed defendant in open court saying that he had explained the “possible penalties” to the defendant. The defendant affirmed that such conference took place. Although the trial judge did refer to “the crime” to which defendant entered guilty pleas, he unequivocally stated to the defendant, prior to acceptance of the guilty pleas, “You are being charged with three counts of armed robbery. Is that right?” Defendant’s response was “Yes, Sir.” The court also asked defendant, “Are you pleading guilty to these crimes because you are really guilty?” Defendant’s response was “Yes, sir.”

This colloquy convinces us that the defendant understood the consequences of his guilty plea in that he understood he could be sentenced for each of three offenses. We reach this conclusion by reading the record in a practical and realistic manner to determine whether an ordinary person in the circumstances of defendant would have understood the trial court’s remarks and advice as conveying the required information. People v. Kontopoulos (1962), 26 Ill.2d 388, 390; People v. Marshall (1961), 23 Ill.2d 216, 218; People v. Outten (1961), 22 Ill.2d 146, 149; People v. Doyle (1960), 20 Ill.2d 163, 167.

The judgment of the trial court is affirmed.

Judgment affirmed.

ENGLISH, P. J., and DRUCKER, J., concur.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Teeley J. Jones, Defendant-Appellant.
    (No. 54858;
    First District
    — November 5, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Judith S. Smith, Singer, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, James Sternik, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court: Defendant, Teeley J. Jones, was convicted of the crime of robbery after a jury trial and he was sentenced to a term of eight to fifteen years. This is an appeal of that conviction and sentence.

On appeal defendant contends that the trial court erred in denying an intra-trial motion to suppress defendant’s confession, in allowing the complaining witness to give extensive testimony about the nature of his injuries, and in imposing an excessive sentence.

On November 15, 1968, at 1:15 P.M. Judge Walter J. Kowalski was robbed by a group of youths outside 1160 North Sedgwick. One of the assailants struck the Judge’s head against the sidewalk. The other attackers stole money and jewelry from his pockets. The Judge could not identify the defendant as one of his attackers.

At trial Detective Blasch testified that on November 18, 1968, he arrested the defendant at his parents’ apartment without a warrant. Blasch informed the defendant of his rights under Miranda v. Arizona, 348 U.S. 436, and after interrogation the defendant gave an oral statement implicating himself in the robbery. His statement was then typed by Officer Mucia and signed by the defendant.

Bernard Watkins and Sherwin Smith, residents of 1160 North Sedgwick, identified the defendant as one of the attackers of Judge Kowalski. They also stated they had seen the defendant in the neighborhood on previous occasions.

The defendant testified that he was twenty years old and was self-employed selling hosiery, jewelry and records. He denied taking part in the robbery and claimed that he signed two blank pieces of paper and not the confession which was read to the jury. He stated that he could not remember if he was informed of his rights.

On appeal defendant first contends that it was prejudicial error for the trial court to deny hearings on his intra-trial motion to suppress his confession. Prior to trial defendant filed a written motion to suppress the confession based on police failure to warn the defendant of his constitutional rights. That motion was denied and no error is claimed on appeal as to this ruling.

During trial and following Detective Blasch’s direct testimony for the State, his grand jury testimony and police reports were tendered to defense counsel. After reading them defense counsel orally moved to suppress the defendant’s confession stating:

“I have information now, Judge, that I know that my man was not arrested pursuant to any arrest warrant. I know he was not arrested pursuant to any search warrant. I know from his own conversation he was not violating any State or municipal ordinance.”

It is evident from the testimony adduced at the pre-trial hearing that the defendant had been arrested without a warrant or search warrant. No written motion to suppress based on an illegal arrest was ever filed. Defense counsel had a list of witnesses for eight months prior to trial providing ample opportunity to question all the State’s witnesses including Watkins. Defense counsel stated:

“My assumption is that they based the arrest on the' information given by Sherman [sic] Smith or Bernard Watkins. But they gave me another name of a person that I went out to examine. I can’t get around into that area. I don’t have investigating * *

Counsel’s incorrect assumption does not negate the fact that he knew before trial there was no arrest warrant. Nor is there anything in the above to indicate that an arrest without warrant was improper in the circumstances of this case. The trial court properly found the motion to suppress untimely.

Later in the trial the State offered the defendant’s confession into evidence. The court stated, “I assume you object to this.” Defense counsel replied, “I make no objection.” After part of the confession was read defendant objected and moved that the confession be suppressed urging the same grounds relied on in the previous motion.

The trial court properly denied defendant’s motion since, among other reasons, it was untimely. In addition defendant specifically waived any objection prior to the reading of the confession.

Defendant’s second contention is that the trial court committed prejudicial error in overruling defendant’s objection to the prosecution’s j inquiring into the victim’s injuries.

Judge Kowalski gave the following testimony:

“I received hospital care for fractured skull. [I remained] [i]n the hospital itself, for a whole week. I am still under doctor’s care for residual lost [sic] of taste, smell, partial paralysis of my right cheek, and a loss of hearing of my right ear.”

The defendant relies heavily on People v. Nickolopoulos, 25 Ill.2d 451, which involved an assault with a deadly weapon with intent to commit murder. The court found that it was prejudicial error to allow the victim to testify that he was paralyzed and had seven holes in his intestines, stating at page 454:

“The specific intent required by the charge is found, not from the nature or seriousness of the injury inflicted, but from the proof of the reckless character and manner of the assault, the instrument made use of by the assailant, * * *. A gun is a deadly weapon per se * *

In the case at bar the force was not by an instrument, such as a gun, but by a vicious beating. The record discloses that the complaining witness was only able to testify as to the use of force by stating the results of the attack since at the onset of the attack one of the attackers struck his head on the sidewalk and he was in a semi-conscious condition with no ability to open his eyes for the duration of the robbery.

In addition, in the case of People v. Hopkins, 29 Ill.2d 260, decided year after Nickolopoulos, supra, the comt stated at page 266:

“The defendant contends that the defendant was prejudiced by the testimony of the complaining witness that the cut on her hand required 18 stitches. Proof of force is essential to establish the crime of robbery and in our opinion the testimony as to the extent of the injuries which the victim sustained in her struggle with the defendant was properly admitted and was not prejudicial to the defendant.”

Therefore, we find in the instant case that the testimony of the complaining witness as to his injuries was not prejudicial.

Defendant’s third contention is that defendant’s sentence was excessive in view of his age (twenty) and past record (one conviction for shoplifting) and because the length of his sentence was apparently based in part on the judge’s conclusion that defendant committed perjury. In sentencing defendant the trial court stated:

“There seems to be no mitigating circumstances that I can find and this defendant not satisfied with the crime that he had committed takes the stand here; not only denies this robbery but he denies that he signed a statement for the police. The police statement that he signed at the bottom of the first page and the middle of the second page, he said he signed that in blank the police station. It’s an incredible story and an indication to my mind of a criminal bent in this young man.
When you decide it is necessary to compound a strong armed robbery by perjury, by getting on the stand and telling a fantastic and unbelievable story to the jury and to the Court you don’t seem to me like a man that is worthy of any consideration. There is nothing unusual about this defendant except he is a man who is prone to strong armed robbery. He is prone to perjury.”

I can find no circumstances that would justify this Court in not imposing a severe sentence.

Our Supreme Court in People v. Taylor, 33 Ill.2d 417, 424, discussed the power of reviewing courts to reduce sentences where circumstances warrant and set forth the following guideline:

“Such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.”

The purposes sought to be achieved by the imposition of sentence are the security of the community, punishment for the offense committed, the deterrent effect against other similar crimes, and the rehabilitation of the defendant.

In the instant case the trial judge imposed the sentence from the vantage point of his superior opportunity to determine the rehabilitation potential of defendant based on the viciousness of his crime and the conduct of defendant in court. When a defendant elects to justify his conduct, he must be judged by the improbability of his own evidence. (People v. Mastín, 110 Ill.App.2d 440.) We find no circumstances to warrant a reduction.

The judgment is affirmed.

Judgment affirmed.

ENGLISH, P. J., and LORENZ, J., concur.


author: Mr. JUSTICE GOLDBERG

text:
    Stephanie Babray, Plaintiff-Appellee, v. Charles C. Carlino, Defendant-Appellant.
    (No. 54441;
    First District
    — November 8, 1971.

      Robert A. Sprecher, of Chicago, (Crowley, Sprecher, Barrett & Karaba, of counsel,) for appellant.
    Lowell B. Komie, of Chicago, (Stiefel, Burns, Levinson & Komie, of counsel,) for appellee.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Charles C. Carlino (defendant) appeals from a decree granting an accounting and other relief to Stephanie Babray (plaintiff) and dismissing his counterclaim. This appeal is concerned only with three portions of the decree which will shortly be described. Plaintiff did not cross appeal from that part of the decree which denied her claim for additional relief. The decree was entered in accordance with the report and recommendations of a master in chancery.

The decree established a constructive trust in favor of plaintiff and granted her an accounting in connection with an interest in the Niles Motel. This was in accordance with recommendations of the master who found that defendant had violated his duty of loyalty to plaintiff as a copartner. Another portion of the decree granted plaintiff an interest allowance for use of her funds by defendant. The master predicated this recommendation upon a contract relationship between the parties based upon an oral agreement for purchase of bank stock by defendant for plaintiff. The remaining portion of the decree involves a recommendation by the master that defendant be denied damages for willful and malicious prosecution of the suit by plaintiff. In this regard, the master stated that the defendant’s counterclaim had not been proved. We will consider these three phases of the appeal in their stated order. First, however, a factual statement is essential.

Since proceedings before masters in chancery no longer exist, it might be wise briefly to consider the duty of the reviewing court and its relation to the findings of fact made by a master and then approved by the entry of a decree by the trial court. A master had the opportunity of observing the witnesses and of hearing their testimony in person. For this reason, the rule existed that findings of the master, particularly when approved by the trial court, are entitled to due weight on review of the cause. Kolze v. Fordtran, 412 Ill. 461, 468, 469; Englestein v. Mackie, 35 Ill.App.2d 276, 287.

The concurrent principle also obtains that a report by a master is advisory only. After the masters report has been filed, the facts remain open for consideration by the trial court and by the reviewing court. (Uksas v. Zelensky, 21 Ill.2d 303, 311; Vesolowski v. Vesolowski, 403 Ill. 284, 292; Miller v. Heller, 106 Ill.App.2d 383, 393.) In a chancery case, the reviewing court proceeds in accordance with equitable principles. Therefore, the facts are always open for consideration on appeal and the question to be determined here is: “Was the decree rendered by the court a proper one under the law and the evidence?” (Uksas v. Zelensky, 21 Ill.2d 303, 311.) This question is to be answered by us without regard to the finding of the master upon any particular question of fact. (Chechik v. Koletsky, 311 Ill. 433, 438. See also Miller v. Heller, 106 Ill.App.2d 383, 393-94.) With these established and salutary principles in mind, we proceed with a statement of the facts.

Defendant’s business experience began in 1918. For about 19 years prior to the events here, he was Vice President of the Belmont National Bank (Bank). Plaintiff’s formal education ended after one year of high school. She was first married when 19 years old. About 1946, plaintiff purchased a tavern in Chicago. She borrowed money with which to start this enterprise. She first operated the business with a partner but bought out the partner’s interest. Plaintiff’s husband died in July of 1953 and she sold the tavern during the following year. Plaintiff thus had some experience in financial matters such as operation of the tavern and the purchase and sale of a two-flat building in Chicago. In addition, plaintiff had made a small purchase of corporate stock before she met defendant. The adjectives “alert”, “intelligent” and “articulate” appear in the record as descriptive of plaintiff.

In 1948, defendant had become acquainted with plaintiff’s first husband who was a depositor in the Bank. In 1952, plaintiff accompanied her husband to the Bank and there first met defendant. In 1953, some two weeks after the death of the first husband, in response to a telephone call from plaintiff, defendant came to visit her at her home. She was still operating the tavern then and in the course of her business had occasion to visit the Bank and sometimes to see defendant.

At the time of the death of plaintiffs first husband, in July of 1953, she was assisted by her brother who was a practicing attorney. On the day after the death, accompanied by her brother, she removed cash and other items from a safety deposit box in the Bank and opened a new box. In addition, she transferred the entire amount in a joint savings account, some $7700, to a new account in her own name. Thereafter, in 1954, plaintiff removed $16,650 from a safety deposit box in the Bank and deposited it in her savings account. She testified that defendant advised her to do this; and that, at defendant’s suggestion, she opened this account using her middle name and her maiden name in combination.

During 1953 and 1954, on three separate occasions, plaintiff purchased a total of $6000 in treasury bonds through the Bank. These transactions were handled by means of cashier’s checks issued by the Bank. Her testimony is that defendant first talked to her about these bonds in October of 1953. At that time, she bought $3000 worth of bonds. A few days later, defendant gave plaintiff a refund of $89 representing the excess of her payment above the actual cost of the securities.

Plaintiff testified that in each instance she expressly authorized defendant to purchase United States treasury bonds for her. She owns $6000 worth of these bonds to the present day and has received all installments of interest thereon. She also asked defendant to buy her $5000 worth of these bonds in October, 1957, but she disposed of them later without consulting defendant. A finding by the master that defendant bought and sold treasury bonds without plaintiffs prior knowledge by drawing from and depositing to her bank account is completely unsupported by the evidence. In addition, after discussion, plaintiff authorized defendant to buy 241 shares of stock in the Bank for her for some $6000. She still owns this stock which has increased to 349 shares because of stock dividends. The value of the stock is now approximately doubled. In each instance, these stock investments were discussed between the parties and expressly authorized by plaintiff.

Plaintiff gave defendant possession of her bank books and various personal papers including her certificates of stock in the Bank. Defendant testified that this was done as a matter of convenience. In addition, it is certain that she gave defendant possession of a blank savings withdrawal slip signed by her for an account in the Bank in her correct name and another such withdrawal slip for the account maintained in her middle and maiden names. Both of these slips were later returned to plaintiff unused and were destroyed by plaintiff at defendant’s suggestion. There is a suggestion in the master’s report that defendant had possession of additional similar deposit slips. Plaintiff testified that she signed at least half a dozen such slips. However, defendant denies this and only his possession of two slips as above described is documented, as will hereinafter be shown. There is no evidence that defendant ever used any withdrawal slip signed in blank by plaintiff. The only withdrawal slip offered in evidence is entirely in plaintiff’s handwriting.

During October of 1956, plaintiff visited defendant at the Bank. At that time, defendant gave her all of the documents and papers of every kind that she had previously lodged with him. Plaintiff tendered to defendant, and she signed, an itemized receipt listing the documents.

More than 30 items are described in the list. The list includes an installment note and trust deed representing the third mortgage on the Niles Motel (later fully described) in the amount of $30,000 and all stock certificates. This list specifies a blank savings withdrawal slip signed by plaintiff in her proper name and one signed by her in the combination of her middle and maiden names.

The record does not clearly divulge the background or the reason for this incident. After Christmas of 1954, there was an argument between the parties in which defendant accused plaintiff of drinking too much.

This incident apparently heralded the development of a rift between them. Defendant testified that, about this time and later, plaintiff would come to the Bank and insult him. In any event, new transactions between the parties virtually ceased with delivery of the documents to plaintiff. Subsequently, plaintiff engaged in certain financial transactions such as purchase of additional stock in the Bank. In these instances, she acted without advice or consultation with defendant.

We will now state the facts and consider the rights of the parties with reference to the Niles Motel transaction. This portion of plaintiffs claim is set forth in the fifth and last count of plaintiff’s third amended complaint. During November of 1954, defendant was confined to the hospital. Plaintiff went to visit him and there, by chance, met Monteen Alongi who had come to the hospital for the same purpose. Plaintiff testified that prior to this time defendant had spoken to her in a general way about the possibility of investing in a motel or hotel. Plaintiff and Mrs. Alongi left together and spoke about the motel. Mrs. Alongi, plaintiff and defendant later discussed the venture together. Plaintiff testified that she was told by defendant that the price of the motel would be $250,000; that she would receive a one-third interest for putting up all the money that she could; that defendant and Mrs. Alongi would be her partners; and that Mrs. Alongi would run the motel and plaintiff would run the bar. The balance of the purchase price would come from a contribution by defendant and from mortgage financing. Prior to this time, Mrs. Alongi had taken plaintiff to see the motel.

Plaintiff invested some $30,000 in the purchase of the motel. She withdrew approximately $7000 from her savings account in the Bank. She made a loan from the Bank for $6500 collateralized by 100 shares of other stock which she owned. In addition, she borrowed some $14,000 by a mortgage on her home. She testified that defendant suggested these loans to her and that he told her that he would arrange the loan from the Bank at the lowest possible rate of interest. Plaintiff specifically approved of this investment and of the manner in which it was consummated.

Defendant worked at the motel at night in addition to continuing his duties at the Bank. Mrs. Alongi resided on the premises and acted as manager. Plaintiff did not manage the tavern which was rented out to other persons. Plaintiff testified that she received no documentary evidence of her interest in the motel until the early part of 1956. During November or December of 1955, plaintiff had become concerned about this. She took the matter up with an attorney to whom she had been referred by defendant. In due course, the lawyer gave her papers indicating that she held a third mortgage on the motel property for $30,000. Plaintiff did testify that she received some “closing papers, the papers that came from the sale” but these documents were never produced. The evidence shows that the motel property was owned by a land trust and that the beneficial interest was owned one-third each by plaintiff, Mrs. Alongi and defendant’s son.

The motel was purchased during August of 1955. It was located on North Milwaukee Avenue in Niles, Illinois. At the time of purchase, it consisted of 25 motel units, 14 hotel rooms and a tavern. No contract of purchase was ever produced before the master. It is clear, however, that there was a first mortgage on the property in the amount of $140,000. There was a second mortgage held by the seller in the amount of $30,000. Plaintiff received a third mortgage for $30,000 and Mrs. Alongi contributed $15,000 borrowed from an outside source. This makes a total of $215,000 which the master found was the entire purchase price of the property. Defendant insists that the purchase price was actually close to $250,000 and that he contributed part of the cost. However, defendant submitted no documentary evidence of this and stated that he did not remember the amount that he actually contributed.

It is agreed, however, that the property was owned by three partners; namely, plaintiff, Mrs. Alongi and defendant’s son, Charles C. Carlino, Jr. It is undisputed that defendant’s son made no financial contribution to the venture. He acted as a nominee for his father. The master found that the son was the alter ego of the father and no objection was made to this finding.

Some time after the purchase, problems arose in connection with management and operation of the motel. Plaintiff wished to operate the tavern and Mrs. Alongi refused to permit this. Defendant testified that he asked plaintiff if she would accept her investment back plus a profit of $10,000 and he told her that he would accept the same. He stated that he told plaintiff that Mrs. Alongi would borrow money to be able to pay both of them off on this basis. Plaintiff testified that defendant told her on the telephone that there was a chance to sell the motel and he asked if she would be satisfied if she got her money back plus $10,500. Plaintiff asked for time to think it over.

Defendant testified that Mrs. Alongi later agreed that she would borrow the necessary funds and buy out plaintiff and defendant so that each could receive a profit. Defendant said he wanted to leave the motel entirely because it took too much of his time. Plaintiff then agreed that she would accept return of her investment plus a profit or bonus of $10,500 for her entire interest in the motel. This took place about November of 1956.

In the transaction, plaintiff was represented by counsel of her own choice. She first called a lawyer whom defendant had previously recommended. He stated that he would not represent plaintiff or defendant in the transaction. Plaintiff then herself, without knowledge of defendant, selected a reputable and experienced member of the bar to represent her. She was not certain whether she knew him through her contact with her brother, also a member of the bar. Plaintiff had a financial statement regarding the operation and status of the motel.

During late November of 1956, a meeting was held in the office of plaintiffs counsel. Defendant, his son and another attorney were present. At that meeting, plaintiff, Mrs. Alongi and defendant’s son all signed a written agreement dated November 21, 1956. This document recited that the parties were beneficiaries under a trust agreement and that they had operated the Niles Motel as a copartnership which they wished to dissolve; with defendant’s son and plaintiff to withdraw and with Mrs. Alongi to remain in the business. It also recited that all matters of every kind between the parties had been “settled and adjusted.” The parties agreed that Mrs. Alongi would pay defendant’s son and plaintiff each the sum of $10,500, receipt of which they acknowledged, in full payment of all of their rights of every kind in the real estate, personal property and business of the Niles Motel. In addition, each of the parties released and discharged the other from all claims and demands in connection with the copartnership and the motel. This document was witnessed by both of the attorneys and by defendant.

Two days later, on November 23, 1956, both attorneys entered into an escrow agreement at Chicago Title & Trust Company. This agreement recited that the sum of $50,000 was to be deposited in a separate money lender’s escrow and detailed directions to the escrowee were set forth. The escrowee was to pay plaintiff the entire amount due on the third mortgage plus interest, plus the sum of $10,500. A sufficient sum was to be paid for release of the then existing second mortgage and the balance was to be paid to the corporate trustee which held legal title to the motel property under a land trust. However, the necessary loan never materialized and the money required to consummate this escrow agreement was never deposited.

On November 29, 1956, the transaction was finally completed in a slightly different form. It is undisputed that plaintiff received $37,134 at the time of closing. This represented the entire balance of her third mortgage plus interest and also her bonus or profit in the amount of $10,500. Plaintiff had previously received eight monthly payments of principal and interest on the third mortgage each in the amount of $579.99, being a total of $4,639.92. Therefore, the total amount of principal and interest realized by plaintiff was $41,773.92.

This sum was delivered to plaintiff and her counsel by means of a check issued by an attorney named Meyer Rosin who had represented Carlino, Jr. This lawyer testified that on the preceding day he had received $37,134 from defendant’s son; and, in turn, he had issued his check for the same amount payable to plaintiff. He also testified that the Carlino interest was sold out concurrently with the sale of plaintiff’s interest. He testified that plaintiff and defendant first wanted to sell their entire interest to Mrs. Alongi. She was unable to obtain the necessary funds and the escrow was thereupon terminated. He testified that some settlement was arranged outside of his office between defendant and Mrs. Alongi. Defendant testified that he received a note from Mrs. Alongi representing his interest. However, this obligation was never paid and finally, some three years later, defendant was obliged to buy the motel back from Mrs. Alongi. There is no testimony to the contrary. Plaintiff’s complaint for an accounting was filed January 23, 1961; some four years and two months after completion of the transaction.

Before commencing analysis of these facts, it should be noted that plaintiff does not seek to rescind the motel transaction from its inception. Plaintiff seeks only to set aside the agreement and the release which she executed in November of 1956 when she divested herself of her interest in the motel. The decree appealed from awarded plaintiff an accounting commencing from November 29, 1956. Therefore, the important aspects of the transaction for purposes of this appeal are those which existed in November of 1956.

The first issue here is whether the relation between these parties was originally or ever fiduciary. For many long years, the courts of Illinois have refrained from fixing inflexible or precise boundaries for the attributes of a fiduciary relationship. (Illinois Rockford Corp. v. Kulp, 41 Ill.2d 215, 222; Seely v. Rowe, 370 Ill. 336, 342; Kosakowski v. Bagdon, 369 Ill. 252, 254.) The relationship which gives rise to fiduciary duties and obligations may be legal or even social. (Kapraun v. Kapraun, 12 Ill.2d 348, 353; Pffaff v. Petrie, 396 Ill. 44, 50; Swenson v. Wintercorn, 92 Ill.App.2d 88, 100.) In any and all cases the existence of a fiduciary duty and relationship sufficient to establish a constructive trust must be shown by evidence which is so clear, convincing and unequivocal as to permit of but one conclusion. (Perry v. Wyeth, 25 Ill.2d 250, 253; Landau v. Landau, 20 Ill.2d 381, 383; Swenson v. Wintercorn, 92 Ill.App.2d 88, 100.) We find no such evidence in the case at bar. Neither the master nor the court found that these parties were in a fiduciary relationship with reference to the motel transaction. The record shows that plaintiff was possessed of a degree of intelligence at least equal to that of defendant. She never reposed trust and confidence in defendant. Defendant never acted in plaintiff’s behalf without her express approval and authority.

The fact that defendant had possession of documents and other matters belonging to plaintiff does not in itself make their relationship fiduciary. There is no evidence that defendant ever had more than one signed withdrawal slip for each of plaintiff’s accounts. Possession of these slips by defendant is equally compatible with the convenience of plaintiff as it is with placing of confidence; particularly when one considers plaintiff’s past conduct in removing funds from a joint account and cash from a safe deposit box the day after her husband’s death. Moreover, a central element of the constructive trust is lacking here. There is no evidence of overreaching by defendant. There is no evidence of loss to plaintiff or of profit to defendant. On the contrary, the record shows that plaintiff profited from all of the transactions with perhaps one exception not involved in this appeal.

Furthermore, when defendant returned all of her documents to plaintiff in October of 1956, this marked a change in the attitude of each party to the other. If plaintiff had ever imposed trust or confidence in defendant prior to that date, this vanished completely when the property was returned. Certainly from that point on the parties acted with complete independence. The transaction complained of by plaintiff took place a month after the surrender of all documents by defendant to her. Thus, when plaintiff divested herself of the interest in the motel, the association between the parties did not constitute a fiduciary relationship.

However, it is definite that these parties were partners in the operation of the motel. Despite use of the name of defendant’s son in the transaction, the litigants agree that the actual parties in interest were plaintiff and defendant together with Mrs. Alongi. Commencing from this premise, it necessarily follows that a fiduciary relationship existed as a matter of law between these parties as partners in connection with their ownership and operation of the motel. It is established in Illinois that each partner is a fiduciary of the other. (Bandringa v. Bandringa, 20 Ill.2d 167, 174; Rizzo v. Rizzo, 3 Ill.2d 291, 302; Grossberg v. Haffenberg, 367 Ill. 284, 287.) It follows necessarily that plaintiff and defendant each owed the other the duty to exercise the highest degree of honesty and good faith in their dealings and in the handling of partnership assets during the existence of their partnership.

As a corollary to this principle, in logical sequence, when a partnership is dissolved tire fiduciary relationship is terminated. Dissolution of the partnership may be effected by the express will of any partner at any time. (Bluestein v. Davis, 86 Ill.App.2d 61, 67.) Similarly dissolution may be accomplished at any time by the mutual consent of the partners. (Meyer v. Sharp, 341 Ill.App. 431, 440.) In this regard, dissolution must be carefully differentiated from the winding up of the partnership business and affairs. This distinction is preserved in the applicable statute which provides in substance that dissolution, as distinguished from winding up of the partnership business, may be accomplished by the express will of any partner or all of the partners. Ill. Rev. Stat. 1969, ch. 106%, pars. 29, 30, 31.

In the case at bar, when the parties agreed verbally that the partnership would be dissolved, the dissolution became an accomplished fact. When the parties executed their written agreement on November 21, 1956, which recited their mutual desire of effecting dissolution, this made the dissolution of the partnership a matter of specific contract between them. In fact, the parties went further and each released the other from all claims and demands of every land in connection with their partnership.

It is apparent that the relationship between these parties, when their agreement for dissolution was consummated, was not fiduciary in nature but they dealt with each other at arms length. Plaintiff entered into the transaction in August, 1955, and withdrew on November 29, 1956. On an investment of slightly under $30,000 for 15 months, she made a profit of $10,500. Plaintiff, therefore, has produced no reason for setting aside the consummated sale of her partnership interest and release of her former partners from all claims.

However, for complete finality of analysis, even if it be assumed that there were fiduciary elements in the factual relationship between these parties, or fiduciary elements in their legal relationship remaining after dissolution of the partnership, it does not necessarily follow that plaintiff may set aside the completed transaction. The presence of a fiduciary element would simply place the burden of proof upon the defendant to show by clear and convincing evidence that the transaction was equitable and just. (Brown v. Commercial National Bank of Peoria, 94 Ill.App.2d 273, 279 aff’d 42 Ill.2d 365, 369; Boryca v. Parry, 24 Ill.2d 320, 327; Melvin State Bank v. Crowe, 97 Ill.App.2d 82, 98.) In cases in which the evidence shows that the principal had independent advice before completing the transaction; that the consideration was fair and adequate and that a fuU and frank disclosure of aU relevant information was made the assailed transaction wHI be approved. Boryca v. Parry, 24 Ill.2d 320, 327; Masterson v. Wall, 365 Ill. 102, 110, 111; Rendl v. Anderson, 103 Ill.App.2d 255, 264.

To apply this principle to the case at bar, we have already pointed out that plaintiff had completely independent advice from a competent attorney who had practiced law for approximately 35 years. As above shown, the consideration received by plaintiff was fair and adequate.

As regards the issue of factual disclosure by defendant to plaintiff, the master’s report shows great uncertainty. The master stated that if the transaction was a loan to Mrs. Alongi, with possible acquisition of her interest in satisfaction of the loan, plaintiff should have been advised of this possibility. This reasoning is manifestly faHacious. The testimony is that defendant did not acquire the motel from Mrs. Alongi until three years later. The master stated another alternative that if defendant was actually acquiring the motel at the time of dissolution in the guise of a purchase by Mrs. Alongi, he should have advised plaintiff of this possibility. The evidence as to this phase of the transaction is that defendant did not actuaHy acquire the interest of Mrs. Alongi but that she retained her interest and gave defendant a note.

The master also mentions failure of defendant to disclose that he furnished the funds to buy plaintiffs interest. This is hardly a matter of crucial materiality. If it had been, the facts could readily have been ascertained by plaintiffs counsel who should certainly have been cognizant of the change in the transaction before closing due to inability of Mrs. Alongi to obtain the needed financing. The conclusion must be drawn that if there was a duty of disclosure it was not violated by defendant in any regard. Upon review and consideration of all the evidence, we are constrained to conclude that defendant entered into the transaction for sale of her interest in the motel “* # * with full knowledge of its nature and effect and because of * * * her deliberate, voluntary and intelligent desire * * (Boryca v. Parry, 24 Ill.2d 320, 327.) From virtuaHy every point of view, the conclusion must be reached that the questioned transaction was openly, fairly and dehberately entered into by the parties so that it should be validated and approved by this court.

In our opinion, one of the decisive authorities here is Schmidt v. Landfield, 20 Ill.2d 89. In that case, the Supreme Court dealt with a situation that originated with the highly fiduciary relationship of attorney and client. In addition, the parties were partners. In due course, they separated their interests, made a division of partnership property and executed releases. The clients then sought to set aside the transaction wherein they had released the lawyer. The Supreme Court affirmed judgments of the Appellate Court and the circuit court, dismissing the complaint for insufficiency. This result is based upon the fact that plaintiffs had previously become involved in disagreements with their counsel. They engaged independent counsel who represented them at the time of settlement. In executing the release, they did not rely upon the defendant’s advice but upon their own knowledge and the advice of their own counsel. Further, the court held that disputes between the parties should have put plaintiffs on notice not to rely upon any statements made by their former lawyer. Schmidt v. Landfield, 20 Ill.2d 89, 94.

The same reasoning is applicable in the case at bar. In making this settlement, plaintiff did not depend upon defendant to any extent. She relied only upon her own judgment and that of her own independent counsel. After her disputes with defendant and after he returned all of her documents to her, they were not only at arms length; but, figuratively, almost at swords’ points. The conclusion cannot be justified that plaintiff “* # * relied upon defendant’s advice when the settlement was made.” Schmidt v. Landfield, 20 Ill.2d 89, 93.

Insofar as the decree appealed from creates a constructive trust and requires an accounting with reference to the Niles Motel, it will be reversed.

The next issue between the parties arises from the allegations of Count 1 of the third amended complaint. This count alleges a confidential or fiduciary relationship between the parties. Plaintiff alleged that on October 11, 1954, defendant caused $5000 to be withdrawn from her savings account in the Bank and led her to believe that he had purchased stock in the Bank for her with these funds. It is alleged that about October 4, 1955, defendant gave plaintiff a check which he represented as a dividend check from this stock. On October 5, 1956, without plaintiff’s knowledge, defendant redeposited this sum of $5000 in her savings account. Plaintiff prayed for delivery of the stock to her in kind. The third count prayed damages of $7000 for failure of defendant to deliver the stock to plaintiff.

The master found that defendant agreed to purchase the stock but that he never did so. He also found that there was no basis for enforcing the purchase agreement between the parties since there is no evidence of the number of shares involved or of the price per share and consequently that there is no basis for allowance of damages. The master did allow plaintiff interest “for use of her money” from October 11, 1954 to October 5, 1956, at the rate of five per cent per annum less a credit of $90 for amounts paid to plaintiff as dividends; being a judgment in favor of plaintiff for $405.92.

It is quite significant that the master failed to find that there was a fiduciary relationship between the parties in this connection. Similarly, in another aspect of the report concerning plaintiff’s claim in connection with certain loans, where the master denied recovery, he did not find that the relationship between the parties was fiduciary. The decree similarly failed to find existence of a fiduciary relationship but merely entered judgment in favor of plaintiff in the amount suggested by the master.

The evidence and analysis regarding absence of a fiduciary relationship in the motel transaction are equaUy applicable here. Moreover, the evidence fails completely to support or justify this aspect of the master’s report or the decree. Plaintiff testified that in October of 1954 defendant suggested purchase of additional stock in the Bank by her. On October 11, 1954, $5000 was withdrawn from plaintiff’s savings account. This was done by a withdrawal slip entirely in plaintiff’s own handwriting. Plaintiff testified that defendant did not give her the shares and that she never thereafter asked defendant for them. Plaintiff also testified that defendant gave her three checks for $30 each representing dividends. Only one of these checks was produced by plaintiff and this is dated October 4, 1955. It is undisputed that dividends on Bank stock were paid in January and July of each year. Plaintiff regularly received dividend checks in these months for all of the remaining 241 shares of stock in the Bank owned by her. On October 5, 1956, $5000 was deposited in plaintiff’s savings account. However, the same amount was deposited to her same account on November 20,1954.

Defendant denied completely that the sum of $5000 was withdrawn by plaintiff for the purpose of buying Bank stock. He denied that he had ever given her dividend checks for this stock. In all cases, plaintiff received regular dividend checks issued by the Bank. Defendant testified that the withdrawal of $5000 on October 11, 1954 was for the purpose of making a loan to one C. A. Hansen. This is substantiated by a cashier’s check issued by the Bank for $5000 dated October 11, 1954, payable to Charles A. Hansen and endorsed by him. Defendant testified that this was a short term loan. Plaintiff agreed that the loans made by her were of short duration; from five to perhaps 60 days. Defendant testified that this loan was repaid by Hansen’s check dated November 18, 1954 payable to defendant for $5050. On that day, $50, which could have represented interest on the loan for some 37 days, was deposited in plaintiff’s checking account; and, on November 20, 1954, the principal amount of $5000 was redeposited in plaintiff’s savings account as above noted.

We conclude that there is a complete failure of the proof in this regard. The documentary evidence lends strong credence to defendant’s testimony that the transaction was actually a loan to Hansen. Furthermore, plaintiff’s own testimony that she never made demand for delivery of the stock also tends to support defendant’s theory. The allowance of interest on this money to plaintiff was, in our opinion, unwarranted and the decree should be reversed in this regard.

As above set forth, defendant’s counterclaim alleged willful and malicious institution and prosecution of this action by plaintiff to the extreme prejudice of defendant’s dealings as a banker. We find no evidence of willful or malicious maintenance of this action by plaintiff. The legal authorities cited by defendant fail to convince us that this record shows willful misconduct by plaintiff. We, therefore, affirm the decree insofar as it dismisses defendant’s counterclaim. (The decree directs that the counterclaim be “overruled”).

We, therefore, direct that the decree for establishment of a constructive trust and for an accounting with reference to the Niles Motel be reversed; that the judgment in favor of plaintiff in the sum of $405.92 be reversed; that the decree for dismissal of defendant’s counterclaim be affirmed and that the cause be remanded to the circuit court with directions to dismiss plaintiff’s third amended complaint at plaintiff’s costs.

Decree and judgment reversed and cause remanded with directions; dismissal of counterclaim affirmed.

BURKE, P. J., and LYONS, J., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Woodall et al., Defendants-Appellants.
    (No. 55577;
    First District
    — November 8, 1971.

      Gerald W. Getty, of Chicago, (Judith G. Smith, Shelvin Singer, and James J. Doherty, of counsel,) for appellants.
    Edward V. Hanrahan, of Chicago, (Robert A. Novelle and George Pappas, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.