text:
    Bernard Klibanow & Company, Inc., Plaintiff-Appellee, v. Erwin Shafer, et al., Defendants-Appellants.
    (No. 54139;
    First District
    — November 4, 1971.

      Lewis W. Schlifkin and Edward A. Berman, of Chicago, for appeUant.
    Solomon Gutstein and Ronald S. Cope, of Chicago, for appeUee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The defendants, controlling beneficiaries under a land trust, appeal from a judgment for $7,500 entered in favor of the plaintiff, a real estate broker.

The defendants’ main contentions are that the plaintiff did not produce a purchaser who was ready, willing and able to buy their property on their terms, and that the trial court erred in refusing to admit parol evidence to explain ambiguous statements in two documents introduced into evidence by the plaintiff.

With the exception of William Levin, the plaintiff’s salesman, all the principals to the transaction were lawyers. The three defendants, Erwin Shafer, Arthur Bogeaus and Walter Sampson were members of the Illinois bar and the prospective purchaser, Gerald Kaufman, was a member of the bar of the State of New York. At times, Kaufman was represented by Martin Gordon, a Chicago attorney.

Levin and the defendants began discussing the sale of the property in 1961 or 1962. From time to time he showed it to potential buyers. In the summer of 1965 he submitted the property to Kaufman who was engaged in the hotel business in Chicago; Kaufman was interested and Levin arranged for him to meet the defendants. At this meeting further details were supplied, a price of $770,000 to $775,000 was quoted and Kaufman said he wanted to buy the property. He was unfamiliar with Illinois land trusts and a second meeting was arranged to give him an opportunity to check into the legal aspects of such trusts. The principals met again on August 19, 1965, in the land trust department of the Chicago Title and Trust Company, Chicago. On August 20th they returned to the Title Company where an escrow agreement was drawn and executed. The agreement was signed by Shafer in behalf of the beneficiaries and by Gordon in behalf of Kaufman. No question is raised as to Gordon’s authority.

The agreement, entitled “Escrow Instructions,” was on a standard printed form customarily furnished by the Title Company. Inserted into the form were typewritten provisions which stated that Shafer would deposit with the Title Company a trustee’s deed conveying the property to Kaufman; that Kaufman would deposit $10,000 and would, on or before October 1, 1985, deposit an additional $140,000 and a second part purchase money mortgage and note payable on or before March 1, 1966, in the amount of $118,837.62. Further typed provisions were for the issuance of a $772,000 title insurance policy; the purchase of $295.90 in revenue stamps to be affixed to the trustee’s deed, and the payment by the escrowee of $7,500 to the plaintiff as brokerage commission.

The agreement was entered into on a Friday afternoon and Kaufman promised to make his initial $10,000 deposit the following Monday morning, August 23rd. The defendants acquiesced and the agreement was signed. When the group left the offices of the Title Company, Shafer said to Levin, “Well, Bill, we finally made it, the deal, congratulations. You have earned a commission at last.”

The commission was never paid. On August 23rd Kaufman telephoned Levin and informed him of a telephone call he received that morning from Shafer. Levin testified that he then called Shafer and repeated what Kaufman had said: that Shafer told Kaufman not to deposit the $10,000. When Levin asked why he did this Shafer replied the deal was not satisfactory to him and would be cancelled unless changes were made in conformity with his wishes. Arrangements were made for another meeting.

At this meeting the defendants, according to Levin’s testimony, insisted that the escrow agreement be altered. They refused to prorate as of October 1, 1965, and because of tax considerations wanted to change the payment dates set out in the agreement. Kaufman would not consent to the proposed changes and the deal fell through.

Kaufman, who was called as a witness by both the plaintiff and the defendants, testified that he did not deposit the $10,000 because of a conversation he had with one of the defendants on August 23rd; in this conversation it was mutually agreed “to abandon the deal for one reason or another.” He testified that it was his intention to close the deal on August 20th. Conversely, he testified that he was not ready, willing and able to close the deal on that date. He also stated that he was willing to close but his ability to do so rested on either raising the money or getting a new first mortgage of $656,000 or $657,000. Contrariwise, he stated that the total purchase price consisted of the existing first mortgage [$525,000] plus the sums called for in the escrow agreement: $10,000, $140,000 and $118,837.62.

Shafer testified as the plaintiffs witness under section 60 of the Civil Practice Act (Ill. Rev. Stat. 1967, ch. 110) and he also testified in his own behalf. He said the escrow agreement was intended to be a memorandum of the offer made by the owners of the property and that Levin knew it was only an offer. He conceded that Kaufman was ready and willing to purchase the property and was sufficiently solvent to do so. He affirmed saying in his discovery deposition that Kaufman had “tremendous resources” and could, if he wanted to, pay for the property in cash out of his own pocket.

The defendants’ attorney asked Kaufman and Shafer questions concerning the financial details of the purchase, the size of the contemplated first mortgage, their understanding of the escrow agreement, and their conversations with Levin about these subjects. Objections to the questions were sustained. The court ruled that the agreement of August 20th was a contract and that a written contract could not be modified or explained by parol evidence. An offer of proof was made that Kaufman, if permitted to answer the questions, would testify that: at a meeting held in his office subsequent to August 23rd he told the defendants, in the presence of Levin, of his and Levin’s attempt to obtain a $650,000 mortgage and their failure to do so because the sale price was $772,000 and that the defendants were requested to obtain a $650,000 mortgage (based on their cost price of $900,000) and to execute it individually but they refused. Another offer of proof was made that Shafer would testify Levin informed him of the problem he was having in getting a $650,000 mortgage for Kaufman and told him a condition to the completion of the transaction was for the three beneficial interest holders to personaUy execute a first mortgage; Shafer advised Levin that under no circumstances would this be done.

A real estate broker ordinarily earns his commission by producing a buyer who is ready, willing and able to purchase the property on the seUer’s terms. (Nardi, Pain & Podolsky v. Vignola Furniture Co. (1967), 80 Ill.App.2d 220, 224 N.E.2d 649.) This is true even though the seUer refuses to contract with the buyer. 12 Am. Jur. 2d, Brokers, sec. 183. When the seUer approves the buyer or enters into a contract with him, his readiness, willingness and ability are no longer open to question and the broker’s right to compensation accrues whether or not the sale is completed. Greenwald v. Marcus (1954), 3 Ill.App.2d 495, 123 N.E.2d 139.

The defendants argue that they had no binding contract with Kaufman; that the escrow agreement was conditional and was directive to the escrowee; that the failure of Kaufman to deposit the $10,000 indicated that he did not accept the terms and conditions they attached to the sale and was not ready, willing and able to complete the purchase.

This argument overlooks Shafer’s testimony that there was no doubt as to Kaufman’s solvency, willingness and ability to purchase the property, Kaufman’s testimony that he intended to make the purchase and Levin’s testimony, undenied by Kaufman, that it was Shafer who asked Kaufman not to make the deposit. Although the escrow embodied instructions to the escrowee, it also comprised an agreement between the sellers and the purchaser; it included the consideration for the transfer of the property, the mutual promises of the parties, the details of their transaction and their signatures. No particular form of instrument or of words is necessary to create a valid written contract for the sale of land. Escrow instructions, containing all the necessary elements of a contract and signed by the seller and the buyer, can be, in the absence of any superseding written instrument, the contract of the parties. (Tuso v. Green (1924), 194 Cal. 574, 229 P. 327; Twisselmann v. Cohen (1943), 57 Cal.App.2d 987, 136 P.2d 33; Williams v. Rush (1933), 134 Cal.App. 554, 25 P.2d 888.) In the present case there was no superseding instrument covering the sale of the property. Shafer testified that no other written agreement was entered into by the defendants and Kaufman.

The escrow agreement did not mention a first mortgage; this, and the following language in the agreement, constitute the basis for the argument that the agreement was conditional:

“4. Mortgage encumbrance(s) recorded as document(s) as you are advised in writing by the undersigned.”

Number 4. was but one of seven conditions, such as taxes and judgments, to which issuance of the title insurance policy was subject. The clause does not state that obtaining a mortgage in a certain amount was a condition precedent to the agreement between the parties and it cannot be so construed. Even if the defendants’ offers of proof are accepted at their face value, they refer to proposals advanced during the renegotiations of the parties more than a week after the agreement was signed and a week after the agreement was discarded.

More persuasive than the offers of proof, or the fluctuating testimony of Kaufman as to whether he was to assume the existing first mortgage or had to obtain new financing before the agreement became final, are the figures in the agreement itself. The agreement provided for $295.90 in revenue stamps. The plaintiff points out that under the prevailing law no revenue stamps were required for that portion of the purchase price represented by an existing mortgage. $295.90 in stamps equaled the requirement (55 cents in stamps for each $500 or fraction thereof) for the cash payments called for by the agreement: $10,000; $140,000 and $118,837.62. If a new mortgage were contemplated at the time the agreement was signed either the cash payments or the allocation for revenue stamps would have had to be revised and there was no provision for this to be done.

It is not unnatural for a buyer to seek as large a mortgage as he can and this may have been Kaufmans desire. But if the parties — ah lawyers —intended the successful acquisition of a mortgage in excess of the existing one to be a prior condition to the performance of their obligations their contract should have so provided. Kaufman’s desire to secure a larger mortgage does not establish his unwillingness to accept the existing one in the event his desire could not be fulfilled.

The defendants’ argument that the plaintiff is not entitled to a commission is also predicated on the provision in the escrow agreement that the escrowee would pay the plaintiff $7,500 as brokerage commission, and on a letter, prepared by Shafer and signed by Levin, sent to the Tide Company on August 18, 1965. The letter referred to the proposed sale of the property to Kaufman for an agreed price of $771,491.80 and stated that the plaintiff’s commission would be $15,000, one-half of which was to be paid on or before October 1, 1965, and the balance on March 1,1966, in the event the transaction was consummated. The letter provided further that if the transaction was not consummated the plaintiff was to retain that part of the commission which had been received but would not be entitled to further commission. The essence of the argument is that the first half of the commission was to have come from the $10,000 deposit of the purchaser and since this money was not deposited no commission was payable. The letter said nothing about the commission being paid out of the initial deposit. The escrow agreement implied this but the plaintiff was not a party to that agreement and was not bound by it.

The case was tried without a jury and the trial court had to determine the preponderance of the evidence and the credibility of the witnesses. The decision of the court in favor of the plaintiff was not contrary to the weight of the evidence.

The defendants also urge reversal because the court refused to permit them to explain three ambiguous items of evidence. The first of these is the August 18th letter. The letter was unambiguous and needed no oral explanation. The second is the provision in the agreement which we have already discussed: “4. Mortgage encumbrance(s) recorded as documents) as you are advised in writing by the undersigned.” The provision was not ambiguous. Supplying information to the escrowee about the mortgage was a condition to the issuance of its title policy. The clause pertained to the escrowee not to the agreement of the parties. The court did not err in sustaining objections to the attempted explanation.

The third item about which the defendants complain was also in the agreement. Following a number of typewritten directions to the escrowee regarding deliveries, charges and payments it was to make, the escrowee was told in the printed portion of the instrument:

“You are not to pay charges * * * which were incurred prior to this escrow. The parties have heretofore entered into an agreement for the sale of the premises herein.”

The defendants attach great importance to the last sentence; they argue that it shows there was a separate agreement with Kaufman and that the terms and conditions of this agreement were requisite to a full understanding of the written agreement and a correct decision whether the latter constituted an enforcible contract.

In the normal order of things, parties to a real estate transaction have some understanding before they arrange for an escrow. The printed statement in the standard form, “The parties have heretofore entered into an agreement” gives recognition to this fact. Beyond this, the statement has little significance. Of necessity, there was a preliminary understanding between the defendants and Kaufman before they went to the Title Company and formalized their agreement. However, all words in a contract — printed, typed or handwritten — must be given consideration. If a written contract makes reference to an antecedent or contemporaneous oral agreement, the agreement may be shown if it is not inconsistent with the written one. (Dillow v. Hileman (1939), 300 Ill.App. 509, 21 N.E.2d 632.) The oral agreement must not be inconsistent with the written one because all prior agreements, understandings and negotiations are deemed merged in the final written contract and it is not permissible to modify or abrogate its terms by parol evidence. Although the rulings of the court were unnecessarily restrictive, they were not illfounded. A scrutiny of the record, the offers of proof and the arguments of counsel lead to the conclusion that the defendants’ purpose in offering parol evidence of an alleged oral understanding was to vary the import of the written agreement. Neither the individual nor the cumulative rulings of the court on the three evidentiary items constitute reversible error.

The defendants engaged the plaintiff to sell their property. After much effort a purchaser was produced who was more than interested — he wanted the property. He was a man of means who was not only able but willing and ready to buy. Negotiations resulted in his accepting the defendants’ terms. At this juncture the plaintiff had completed its undertaking and its right to a commission had accrued. The contract between the defendants and the purchaser confirmed this right and the failure to carry out or enforce the contract did not lessen it. Whether Shafer telephoned Kaufman not to make the first deposit, or whether in that conversation they mutually agreed to terminate their understanding is not of crucial importance. In either event, the defendants, having released Kaufman from his obligations, cannot evade their liability to the plaintiff. The plaintiff earned and is entitled to its commission.

The judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE McGLOON.

license: Public Domain

text:
    Catherine E. Williams, Plaintiff-Appellee, v. Harry Wisowaty, Defendant-Appellant.
    (No. 54934;
    First District
    — November 4, 1971.
    Moltz and Wexler, of Chicago, (Leon C. Wexler, of counsel,) for appellant.
    Clarence J. Walsh, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE McGLOON.


author: Mr. PRESIDING JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Boisy L. Banks (Impleaded), Defendant-Appellant.
    (No. 55129;
    First District
    — November 15, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (James N. Oramenos, Lee T. Hettinger, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Daniel J. Pierce, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. PRESIDING JUSTICE BURKE.


author: Mr. JUSTICE GOLDBERG

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Henderson, Defendant-Appellant.
    (No. 55245;
    First District
    — November 15, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Judith C. Smith, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Brent F. Carlson, of counsel,) for the People.
   Mr. JUSTICE GOLDBERG

delivered the opinion of the court:

Defendant, Michael Henderson, was indicted for armed robbery. On December 4, 1968, the court, having accepted his plea of guilty of grand theft, placed him on probation for three years. He was then 18 years of age. On November 24, 1969, the court revoked his probation and he was sentenced to a term of from two to six years in the penitentiary. He appeals to this comt.

His counsel contends that he was deprived of due process of law at the revocation hearing because he was not advised of his right to remain silent but that he made an inculpatory admission to the court; that the revocation hearing was without formal legal procedure and consisted of hearsay and unsworn testimony and finally that the State failed to prove by a preponderance of the evidence that he had violated the terms of his probation. We will first state the facts as they appear from the record.

On November 17, 1969, a rule to show cause why probation should not be revoked was duly entered. The probation authorities filed a petition alleging that defendant had failed to report to his probation officer and that he had moved and could not be located. The petition also alleged that, on October 31, 1969, in the Fourth Municipal District of the circuit court of Cook County, defendant was convicted of battery and also upon four counts of theft and that he had been sentenced to one year in the Illinois State Farm, with all sentences to run concurrently. The petition alleged the court numbers of all five of these proceedings; all bearing designation indicating their filing during 1969.

The cause came on for hearing on November 17, 1969. Defendant appeared with his appointed counsel. A hearing was held upon the rule to show cause. The probation officer advised the court that defendant had failed to report to the probation office and could not be located; and, also, that on October 1, 1969, defendant had been convicted of battery and on four charges of theft and that he had been sentenced as above set forth. Counsel for defendant advised the court that defendant had failed to report to the probation office because he had been in the hospital in August. His own counsel then asked defendant in open court if he would explain his subsequent conviction to the judge. Defendant started to make a statement regarding, “intimidation.” His counsel then corrected him and said, “It was battery and theft.” Defendant stated that was wrong and further, “I was convicted of intimidation.”

The trial court then inquired, “What about the four counts of theft?” The defendant responded and stated that they were pending cases more than two years old which were not brought to tidal; that he had pleaded guilty of intimidation; that “* * * they just made me guilty on all the rest of the cases that I had pending.” The court then directed that the hearing be continued for one week.

The hearing was resumed on November 24, 1969. All of the same persons appeared before the court. The probation officer advised the court that defendant had stated that the offenses in question occurred prior to the date that he was admitted to probation; that the records had been checked and that they indicated that the offenses occurred after defendant had been placed on probation. The record shows that the following statements were then made:

“The Court: Which means he went out and did these right after he got probation. Is that right?

“The Defendant: Yes, your Honor, I know — I’m sure that two of them was after probation. But the other one, I think it was after or before, I don’t know.”

The Assistant State’s Attorney then advised the court that a telephone check had been made with the office of the clerk as to the dates of the offenses and that the information could be supplied more formally but, since defendant had indicated that two of the offenses were committed after he had been admitted to probation, this would not be necessary. The court then said to the defendant, “Now, you were arrested and convicted in the circuit court of Cook County for an offense subsequent to getting probation here, is that right?” The defendant answered, “Yes.” The court apparently then made a general inquiry asking if there was anything more to be said and his counsel responded, “I have nothing further to say at this time.” The court then found defendant guilty of violation of probation and directed revocation. He asked defendant if he had anything further to say. Defendant responded, “Well, I was guilty of it, and I am just sorry that it happened.” The imposition of sentence then followed.

In deciding this appeal, a preliminary statement regarding the nature and attributes of probation is essential. We have had a probation statute in Illinois since 1911. (See Ill. Rev. Stat. 1969, ch. 38, par. 117; also S.H.A., ch. 38, par. 117.) The basic theory of probation is to grant a defendant an opportunity of rehabilitation without incarceration; to afford the unfortunate another opportunity by extending clemency. (People v. Jeffries, 120 Ill.App.2d 39, 44; People v. Smice, 79 Ill.App.2d 348, 353.) Probation is thus an act of grace or a grant of mercy for “* * * the protection of society and the reform of the defendant.” (People v. Donovan, 376 Ill 602, 607.) See also, People ex rel. Barnett v. Bardens, 394 Ill. 511 at 516-517.

The granting of probation and the revocation thereof are never matters of clear legal right. One convicted of a probationable crime “* * * has no inherent, constitutional or statutory right to probation.” (People v. Burdick, 117 Ill.App.2d 314, 323.) The grant or refusal of probation rests within the discretion of the trial court. (People v. Hicks, 125 Ill.App.2d 48, 55; People v. Knox, 116 Ill.App.2d 427, 437.) Probation may be described only as a privilege and not as a right. (People v. Seipel, 108 Ill.App.2d 384, 396; People v. Jones, 107 Ill.App.2d 1, 11.) A defendant is eligible to probation only after he has been found guilty. (Ill. Rev. Stat. 1969, ch. 38, par. 117 — 1(a).) The defendant in this case was, therefore, not a person initially charged with commission of a crime but a convicted felon.

It follows necessarily that this court may not compel a wise exercise of discretion by the trial judge. Our role is limited-to correction of a clear abuse of discretion. (People v. Burdick, 117 Ill.App.2d 314, 323; People v. Smice, 92 Ill.App.2d 83, 86.) As specified in the statute, the State has the burden of proving a violation of probation. (Ill. Rev. Stat. 1969, ch. 38, par. 117 — 3(b).) But, this proof need not conform to the reasonable doubt standard and proof by a mere preponderance of the evidence is sufficient. People v. White, 98 III.App.2d 1, 4; People v. Killion, 113 Ill.App.2d 461, 462.

The recital of these established principles, together with an examination of the record here, impels to the conclusion that the fine spun theories advanced by defendant in this court have no relationship to the proceedings had before the trial court or to the judgment appealed from. Defendant was represented in open court at all times by counsel from the same office which represents him in this court. No objection of any kind was ever raised at any stage of the proceedings by defendant or his counsel. Defendant admitted, not once but at least three times, in open court, that he had violated the terms of his probation. These admissions were in response to questions put by the trial court as well as by defendant’s own counsel. Under these circumstances, the trial court had virtually no alternative but to revoke the probation which he previously had granted. No abuse of discretion appears here.

It is fundamental and basic that this court can review only errors committed at the trial. Where no objection is raised, error, if any exists, has been waived. Thus, in the case at bar, claims such as impropriety in use of hearsay testimony and unsworn testimony may not be raised for the first time in this court on appeal. Unless timely objection to incompetent evidence is made at the trial level, the point may not be raised on appeal. (People v. Eubank, 46 Ill.2d 383, 388; People v. Harris, 33 Ill.2d 389, 390; People v. Ridener, 129 Ill.App.2d 105, 107; People v. Davis, 126 Ill.App.2d 114, 117.) This principle is applicable even to objections upon constitutional grounds. People v. Linus, 48 Ill.2d 349, 355 and People v. Thompson, 48 Ill.2d 41,46.

This appeal must be considered within the context of the fact that not only was no objection, procedural or otherwise, ever raised in the trial court, but the defendant and his counsel in effect stipulated and agreed that he had violated the conditions of his probation. Neither in the trial court nor in this court has any question been raised that these representations to the court were incorrect or the defendant was not, in fact, guilty of breaching the conditions of his probation as aUeged in the petition filed by the probation office.

There remains one additional factor which is determinative of this appeal, regardless of any contention made here by defendant and aside from anything already stated in this opinion. The petition for revocation of probation charged that defendant had failed to report to his probation officer and that he had moved and could not be located. Counsel for defendant in effect admitted this to the trial court, stated that he had spoken to defendant about it, and attempted to justify the violation with the vague excuse that defendant was hospitalized “in August.” This contention cannot justify defendant’s failure to report from December, 1968, when he was admitted to probation, to the date of the hearing, either before or after his period of hospitahzation. Under these circumstances, and on this ground alone, the court acted well within the bounds of reasonable discretion in revoking the probation. (See People v. Freeman, 49 Ill.App.2d 464 and People v. Esposito, 343 Ill.App. 146; also Ill. Rev. Stat. 1969, ch. 38, par. 117 — 2(a).) It follows that the judgment appealed from should be affirmed.

We do not mean to imply by any of the language used in this opinion that we prefer completely informal hearings in cases involving revocation of probation, over the propriety of proceeding in the customary manner. It is common knowledge that appeals have multiplied profusely in criminal cases during the last few years. It may well be that this results, in part, from failure of attorneys who prosecute and defend criminal cases to adhere to the accepted rules of procedure. Although it should not be necessary to spend time and money required to furnish certified copies of matters which are of record, use by the courts of formal stipulations might tend to discourage useless appeals. Such a stipulation of counsel in open court would, or should, have eliminated the appeal in the case at bar. We believe that all counsel, prosecution and defense, owe a primary and absolute duty to the trial court to simplify the proceedings by stipulating to matters of record which are readily susceptible of proof. It is true that the Criminal Division of the circuit court of Cook County and the judges who serve there labor under great difficulties because of the massive volume of difficult litigation with which they are confronted. However, the use of the stipulation and greater care in bringing out the facts, particularly in cases involving revocation of probation, would reduce the volume of appeals and thus would be of great assistance to this court and to counsel who practice before us.

It is, therefore, ordered that the judgment appealed from is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE ABRAHAMSON

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Arthur Loevy, Defendant-Appellee.
    (No. 71-37;
    Second District
    — November 4, 1971.

      Jack Hoogasian, State’s Attorney, of Waukegan, (Kenneth M. Clark, Assistant State’s Attorney, of counsel,) for the People.
    Warren D. Wolfson, and Jack G. Stein, of Chicago, for appellee.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

On September 28, 1970, the defendant, Arthur R. Loevy, was charged with the offense of disorderly conduct under the provisions of Section 33 of Chapter 71 of the Waukegan City Ordinance in that he broke a pane of glass in a door of the city hall. On September 30, Loevy was charged with the offense of criminal damage to property not exceeding $150.00 in violation of Section 21 — 1(a) of Chapter 38 of the Illinois Revised Statutes based on the same act.

Loevy appeared in court with his attorney on September 30 on the State charge and entered a plea of not guilty and demanded a trial by jury. A colloquy then took place between the court, defense counsel and the assistant state’s attorney in regard to the pending ordinance violation. The trial judge first indicated that the charges would be merged but then corrected himself and said he would dismiss the first case and set the second cause for trial on October 23. The defense counsel next asked if the ordinance violation could be dismissed with prejudice and the exchange continued as follows:

“The Coubt: Since the gist of both charges is the same, the action is the same. Really, there is no need to not grant that motion. I think that it should be granted with prejudice because it is proceeding on a criminal charge. No point, we are trying to get away from the separation.

Mr. Witt (the assistant state’s attorney): The only thing I am a little bit hesitant, it may prosecute (sic) on any related offense arising out of that disorderly conduct.

The Court: Let’s limit and make the order to that effect that this is dismissed with prejudice as to the ordinance violation as stipulated on.

Mr. Copland (defense counsel): Alleged event that occurred.

The Court: Limited to that.

Mr. Copland: Fine.”

The court then entered the following order:

“On Motion of Edward J. Copland, Attorney for Defendant

It Is Hereby Ordered that the charges against the defendant under Chapter 71 Section 33 of the City Ordinance of the City of Waukegan, Illinois, be and are hereby dismissed, with prejudice. Said dismissal being to the Ordinance violation and to no other civil action.”

On October 23 the cause was continued, by agreement, to November 30 for trial. On that date, the defendant, with new counsel, moved to dismiss the second complaint on the grounds that the dismissal with prejudice of the first case was a final adjudication of the merits therein and that his subsequent prosecution for the same act violated his constitutional protections against double jeopardy and violated section 3 — 4 (a) (2), 3 — 4(b) (2) and 3 — 4(b) (3) of the Criminal Code. The trial court granted the motion and the State has appealed pursuant to Section 604 of the Supreme Court Rules. Ill. Rev. Stat. 1969 ch. 110A sec. 604.

The defendant readily admits that the dismissal of the ordinance violation on September 30 was a mistake and that none of the parties present intended or believed that the dismissal would affect the prosecution under the state charge. However, the defendant contends, it is not the intent of the court that is determinative of the matter but rather the “operation of the law” and that, in this case, the law operated to bar his prosecution for any charge based on the incident of the broken window.

The cases hold that a suit to recover a penalty for a violation of a city ordinance is civil in form and hence governed by the procedural rules applicable to any other civil proceedings. (City of Chicago v. Kiger, 264 N.E.2d 488, 491; Village of Midlothian v. Walling, 118 Ill.App.2d 358, 255 N.E.2d 23, 26; Village of Park Forest v. Nicklas, 243, N.E.2d 421, 423.) That being so, the prosecution for the ordinance violation was subject to Supreme Court Rule 273 (Ill. Rev. Stat. 1989 ch. 110A, par. 273) which provides as follows:

“Effect of Involuntary Dismissal.

Unless the order of dismissal or a statute of this state otherwise specifies, an involuntary dismissal of an action, other than a dismissal for lack of jurisdiction, for improper venue, or for failure to join an indispensable party, operates as an adjudication upon the merits.” The defendant contends that the order of dismissal was therefore an “adjudication upon the merits” on the first charge and that his subsequent prosecution for the same act violated his constitutional protection against double jeopardy.

It had been previously held that dual prosecutions for the same act under a municipal ordinance and a state statute did not constitute double jeopardy. (People v. Behymer, 48 Ill.App.2d 218.) However, the United States Supreme Court in 1970 held that successive prosecutions for the same offense by a state and a municipality are prohibited by the fifth amendment to the federal constitution. (Waller v. Florida, 397 U.S. 387, 90 S.Ct. 1184, 25 L.Ed.2d 435.) Our Supreme Court recently recognized the same principle in the case of People v. Allison 46 Ill.2d 147, 263 N.E.2d 80.

As an alternative, the defendant maintains that his second prosecution was also barred under Section 3 — 4(b) (2) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 3 — 4) since the first prosecution was terminated by a “final order”. That section provides, in part, that “* # # a prosecution is barred if the defendant was formerly prosecuted for a different offense * * * if such former offense was terminated by a final order or judgment, even if entered before trial, which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution;”.

The logic of this argument would be persuasive if the order of September 30 was truly a final adjudication as urged by the defendant. However, as we have seen, Section 273 applies to “involuntary dismissals” and we do not believe that the order can be correctly characterized as “involuntary”. The defendant appeared in court on that date on a preliminary matter relative to the state charge and was only incidentally advised by the assistant state’s attorney that it would not be necessary to appear on the return date of the first complaint since it had been “amended”. It was at this point that the trial judge first suggested that the charges would be merged and the colloquy that we have already included took place. It appears reasonably obvious to us that the order of dismissal was with the agreement of both parties.

In any event, Section 273 provides that an order of dismissal operates as an adjudication upon the merits unless it “* * * otherwise specifies # * *” The order recited that it was effective as “* * * to the Ordinance violation and to no other civil action * * Although poorly worded, it is clear that the order was not an adjudication upon the merits of the cause.

We have also considered the cases cited by the defendant to the effect that a dismissal of a cause on non-technical grounds acts as a final determination of the facts at issue. (Martin v. Masini, 90 Ill.App.2d 348; Pratt v. Baker, 79 Ill.App.2d 479.) However, as we said in the Masini case, the law “is more than a game of semantics” and the finality of the order must be based on the “substance” of the dismissal. Here, the substance of the dismissal was that the prosecution would proceed under the state charge.

We therefore conclude that the order of dismissal of that charge was in error and that it should be reversed and the cause remanded for further action.

Reversed and remanded.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Harry Eads, Defendant-Appellant.
    (No. 70-22;
    Second District
    — August 2, 1971.

      Morton Zwick, Director, Defender Project, of Chicago, (Ralph Reubner, and E. Roger Horsky, of Defender Project, of Elgin, of counsel,) for appellant.
    William J. Cowlin, State's Attorney, of Woodstock, (Thomas F. Baker, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendant, Harry Eads, was charged by Information with the offense of Burglary. He pleaded guilty and was sentenced to serve 2-4 years in the penitentiary. His only contention on appeal is that he was improperly admonished as to the maximum sentence which could be imposed.

The defendant, age 26, was represented by the Public Defender when he first appeared before the court and waived presentment of the case to the grand jury. He was then advised by the court that the offense “carries with it punishment by way of a term in the penitentiary.” Defendant entered a plea of guilty, but before the plea could be accepted the proceedings were interrupted by a disturbance in the courtroom. The court then continued the arraignment to a later date at which time defendant appeared with his private counsel who was substituted for the Public Defender. The court allowed the defendant to plead not guilty to the Information. At a later date, again represented by his private counsel, defendant withdrew his plea of not guilty. A colloquy then took place which included the following:

“Mb. Culver: Judge, with reference to the Information, I have discussed this with my client and he has indicated to me a desire to, plead guilty to the said Information.

Furthermore, Judge, he wants to enter that plea today, and I have discussed the consequences of the plea with him and he fully understands the nature of the plea and the consequences thereof.

The Court: * * * The law says that the penalty or punishment for the charge that is incorporated in this Information is a term in the State Penitentiary of not less than one year and not more than what, Mr. State’s Attorney?

Mr. Baker: Indeterminate period.

The Court: Indeterminate period; you understand that?

Defendant Eads: Yes, sir."

At a later stage in the coUoquy, the court asked, “Is there anything I left out?” and defendant’s counsel answered, “No, nothing further, Judge.”

Defendant, through his counsel, waived a further hearing in aggravation and mitigation and consented to the entry of defendant’s prior record and the immediate fixing of punishment. The State’s Attorney recommended a term of 2-4 years. The court then asked whether the defendant had anything further to say and counsel responded that he had “nothing in mitigation.” The court thereupon sentenced defendant to the term of 2-4 years as recommended by the State.

Defendant now argues that the admonishment did not comply with Ill. Rev. Stat. 1969, ch. 38, par. 115 — 2, which contains the requirement that a defendant be advised of the “maximum penalty provided by law” before his plea may be accepted. He cites People v. Terry (1969), 44 Ill.2d 38, and People v. Medley (1970), 122 Ill.App.2d 279 for his claim that advising a defendant of an “indeterminate” term does not substantially advise him of the maximum term. We think the cases are distinguishable. In Terry, the admonishment (“* * * an indeterminate term * * # for not less than one year”) was the sole reference to the possible punishment found in the record, and the statement was made to a defendant who appeared pro se, with no other factors which could relate to defendant’s understanding of the term “indeterminate.” The case was followed under quite similar circumstances in Medley.

We agree with the argument of the State that these cases do not stand for the inflexible proposition that the admonishment of a defendant as to a maximum penalty by the use of the teim “indeterminate” — the very term used in several sections of the Criminal Code, including that under which defendant was charged — requires reversal without reference to the entire record. The substance of the requirement is that a defendant must understand his rights and the limits of his exposure to punishment before he may validly waive his substantial rights and enter a guilty plea; and that this understanding may not be presumed, but must clearly appear from the record. (See People v. Mackey (1965), 33 Ill.2d 436, 438.) Thus, in People v. Scott (1969), 43 Ill.2d 135, 142 an admonishment that defendant could be sentenced “for any number of years not less than one year” was held sufficient when the defendant said he understood this and was pleading guilty because he was, in fact, guilty. See also People v. Evans (1970), 45 Ill.2d 265, 268 wherein the court reaffirmed that the admonishment requirement must be read in a realistic manner to determine whether defendant thoroughly understood.

In People v. Outten (1961), 22 Ill.2d 146, 148, 149, the defendant was advised that the court could determine the minimum and maximum penalties and that the penalty was “an indeterminate term of not less than two years nor more than life imprisonment.” This was held to be sufficient when defendant answered that he understood, over his later claim that he did not understand the meaning of the terms “indeterminate”, “minimum” or “maximum”. The court stated at page 149:

“The defendants criticism of specific words used in the court’s admonition is also without foundation. The record shows that the defendant stated at the time that he understood what had been said to him and in any event an admonition is sufficient if an ordinary person in the circumstances of the accused would understand it. (People v. Flathers, 414 Ill. 486, 490; People v. Baldridge, 19 Ill.2d 616, 621; People v. Doyle, 20 Ill.2d 163, 167.)”

In a recent case, People v. Mendoza (1971), 270 N.E.2d 30, 31, 32, although the specific issue before us was not raised, the Supreme Court held that an admonishment was in general compliance with the statute. There the defendant was told as to one of the indictments (robbery), “You may be sentenced to an indeterminate term with a minimum of not less than one year.” The court noted that defendant was represented by private counsel and that it appeared from the record that counsel had discussed defendant’s rights with him at least in some particulars, and it was not alleged that counsel failed to advise defendant of the consequences of his guilty plea.

Under the circumstances in the record, we hold that the defendant pleaded guilty with knowledge of the consequences of his plea, including the extent of his possible punishment.

In addition to the court’s statements to defendant and advice from his private counsel as to the consequences of his plea, we note that defendant and counsel stood by without comment when the State’s Attorney recommended a term of 2-4 years, and after that and before sentencing counsel was asked whether there was anything further to be said in mitigation and had nothing further to offer. While the latter circumstance could not remedy a defect in the admonishment, it tends to refute defendant’s present claim that the record does not show advice to and response from the defendant under circumstances from which it would clearly appear that defendant understood the possible penalty. See People v. Evans, 45 Ill.2d 265, supra, at page 269.

The judgment below is affirmed.

Judgment affirmed.

ABRAHAMSON and GUILD, JJ„ concur.


author: Mr. JUSTICE GUILD

text:
    Doris A. Steichman, Plaintiff-Appellee, v. Roy Hurst et al., Defenddants-Appellants.
    (No. 70-258;
    Second District
    — November 17, 1971.

      Gates W. Clancy and James S. Mills, both of Geneva, for appellants.
    Rathje, Woodward, Dyer & Burt, of Wheaton, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This appeal arises from a suit for personal injuries in which a jury verdict was returned for the plaintiff mail carrier and against defendant dog owners, assessing damages at $15,000.

Plaintiff”s complaint consisted of two counts. The first alleged ownership of the dog by defendants, that it was running freely about the area when plaintiff peacefully approached the front door of defendant’s home to deliver their mail, and that without provocation the dog attacked plaintiff causing her to fall and sustain injuries to her wrist and left knee at a time the following statute was in force:

“If a dog, without provocation, attacks or injures any person who is peaceably conducting himself in any place where he may lawfully be, the owner of the dog is liable in damages to the person so attacked or injured to the full amount of the injury sustained * * III. Rev. Stat. 1967, ch. 8, par. 12(d).

The second was a common-law count alleging the defendant owners knew, or in the exercise of ordinary care should have known, of the dog’s vicious and dangerous propensities but negligently failed to chain or leash the dog. Both the statutory and common law remedies are available. (Reeves v. Eckles (1966), 77 Ill.App.2d 408, 222 N.E.2d 530.) In this case, tire verdict was a general one containing no reference to a particular count or cause of action.

Mrs. Hurst, one of the defendants, testified that although their small 10 lb. dog “Jinx” was generally kept in the house, she had seen him chase the milkman, the garbage man, and the paper boy, and had once received an angry phone call from a person who identified herself as the paper boy’s mother. She said she had no knowledge Jinx had actually bitten anyone. Two brothers who had successively delivered papers to defendants’ home each testified to having been bitten by Jinx. One made a report to his boss but not to the police and did not personally complain to Mr. or Mrs. Hurst. The other young man could not recall whether he had notified Mrs. Hurst. Their mother testified she had phoned Mrs. Hurst three times about the dog during the period her sons were delivering papers. Plaintiff testified Jinx had harassed her no less than 12 times before her injury, and she had told the Hurst children of the dog’s conduct.

Defendants contend on appeal that the record fails to show their scienter of the dog’s propensities. The evidence essential to sustain the common law count was sufficient, we believe, to warrant the jury’s finding. “Proof may be made by evidence of facts and circumstances from which an inference of knowledge arises.” (Domm v. Hollenbeck 259 (1913), Ill. 382, 386, 102 N.E. 782) the owner of a dog that has shown a disposition to bite or attack can no longer rely on the dog’s being harmless (Klatz v. Pfeffer (1928), 333 Ill. 90, 95, 164 N.E. 224); and it is not the law that an owner must have notice of an unjustifiable biting if he has knowledge of attacks upon persons without actual biting, sufficient to put him upon notice of a dogs vicious propensities (Johnson v. Eckberg (1900), 94 Ill.App. 634, 637).

At trial, defendants pointed out the disparity in size of Jinx and the plaintiff, stressing the dog’s small stature and weight, and having a small child lead this silent, leashed “witness”, in a most tractable mood, about the courtroom before the jury. The plaintiff, they insisted weighed 180 lbs., had terrorized this small dog, and provoked the occurrence, but the jury did not agree. On appeal, defendants continue to claim provocation by Mrs. Steichman which would defeat her statutory claim.

The evidence indicated that on a number of earlier occasions, Jinx had harassed plaintiff by barking, growling, baring his teeth, running in circles about her and making little charges at her. Plaintiff had been bitten by another dog about a month before, and the previous Saturday had thrown a stone at Jinx when the dog appeared halfway down the block. On the day in question, she had with her a spray can of “Halt” issued by the Post Office for use versus attacking dogs. Plaintiff was watchful of Jinx from several houses away and approached the Hurst property to deposit their mail in a box at the front of the house only after observing the dog disappear around the back. Plaintiff walked down a neighboring driveway and stood at the corner of the Hurst home looking for Jinx. Not seeing him, she started across the lawn, but then heard his collar tags jingle as he appeared around a corner. When Jinx was three feet away, growling and barking, plaintiff sprayed him with Halt. The dog ran down the driveway and came up under the car toward plaintiff snarling and barking when she sprayed him a second time. After waiting a moment to see that the dog had not returned, plaintiff went up onto a concrete stoop and deposited the Hurst mail in their box. When she turned around, Jinx was there with teeth bared, growling and barldng. Plaintiff stood there a minute, tried to back up to ring the bell, attempted to walk to each side but the dog followed her movements. Jinx charged at her leg. When his teeth were about six inches away, she pulled her leg to the side, spraying Jinx as she fell on her knee to the concrete sidewalk beyond the raised stoop. She cried after she fell, picked herself up and continued on her route, noticing pain and at lunchtime observed her knee was swollen and discolored.

Defendants rely on Siewerth v. Charleston (1967), 89 Ill.App.2d 64, 231 N.E.2d 644, but we find the factual situations incomparable. In that case, two young children had several times kicked an injured dog lying upon its owner’s porch and one of them was bitten after they had been requested to leave. Plaintiff in this case was performing a lawful service in delivering mail to the defendant’s home and had reason to be apprehensive of Jinx. He was a little dog true, but one often at large with a relish for harassment of persons whose duties brought them within his range. Plaintiffs acts in spraying Jinx were not unpeaceable or provocative but were reasonable measures for self protection evoked by the dog’s actions and deterring him only momentarily. The jury clearly believed Jinx caused plaintiff’s fall, and the fact that she is the only occurrence witness does not defeat her claim. Recovery for injuries sustained in a fall caused by a puppy and testified to only by the plaintiff was affirmed in Mc Evoy v. Brown (1958), 17 Ill.App.2d 470, 150 N.E.2d 652.

Defendants further contend that the causal connection between plaintiff’s injuries and her fall were not established to a reasonable certainty. Plaintiff finished her route on the day of the fall, elevated and "iced” her leg that night. The following day she worked inside, and the next day consulted a Dr. Hill who did not testify. While in his care, plaintiff had physical therapy treatments three times a week for three months. She next consulted an orthopedic surgeon who continued treatment for another three months and then performed surgery on her left knee. While recovering, she visited the post office and her leg was hurt a little when someone pulled a stool while she was sitting on it. She later returned to delivering her route on a part-time basis, experienced several months of pain, and walked stiff-legged, remaining under the surgeon’s care for an additional six months. About a year after surgery, she consulted another doctor because of buckling and instability in her knee and fell while walking her route when her knee budded. She wore an elastic bandage and then a cylinder cast on her leg until she went to a rehabilitation center for about a month. The orthopedic surgeon testified that he had diagnosed plaintiffs problem with her knee as one requiring surgical intervention and that his opinion, based on a reasonable degree of medical and surgical certainty was that her condition might or could have been caused by the fall related in her history. His reason was that she showed some instability and some changes in the joint which occur after either acute or chronic recurring injury. There is sufficient evidence in this record to support the jury’s conclusion that plaintiff’s difficulty with her left knee arose out of the fall caused by Jinx. The opinion of the surgeon that plaintiff’s condition might or could have been caused by the fall was a proper method of proving the causal connection. (Davis v. East St. L. & Suburban Ry. Co. (1937), 290 Ill.App. 540, 545, 9 N.E.2d 254; Duncan v. Martins Restaurant Inc. (1952), 347 Ill.App. 183, 188, 106 N.E.2d 731.) We find inapplicable here defendant’s citations of cases such as Carter v. Winter (1964), 50 Ill.App.2d 467, 483, 200 N.E.2d 528 where there was no evidence of a blow to the chest assumed as the basis of medical opinions, and Manion v. Brant Oil Co. (1967), 85 Ill.App.2d 129, 132, 229 N.E.2d 171, where an autopsy showed death resulted from degenerative causes and pone of them could be attributed directly to trauma.

The trial judge did not err in admitting into evidence plaintiffs bill for care at the rehabilitation center following a subsequent fall when her knee buckled or she slipped on ice. These descriptions of the incident are not necessarily incompatible, and as the surgeon testified to instability and a change in the knee joint resulting from the original fall, the subsequent difficulties were reasonably foreseeable. This record does not show an intervening, independent cause of reinjury sufficient to break the causal connection and relieve defendants of liability. See Neering v. I.C. Ry. Co. (1943), 383 Ill. 366, 50 N.E.2d 497; Phillabaum v. L.E. & W. Ry. Co. (1924), 315 Ill. 129, 135, 136, 137, 145 N.E. 806.

In final argument, defendants’ counsel remarked that he wondered why Dr. Hill wasn’t brought in and recited the nature of plaintiff’s consultation with him. There was no foundation for an inference adverse to plaintiff as there had been no showing Dr. Hill was under the control of plaintiff or not as available to defendants as he was to plaintiff. (See Hoff v. Yellow Cab Co. (1964), 53 Ill.App.2d 333, 336, 203 N.E.2d 8.) In rebuttal, plaintiff s counsel responded that he had done the best he could with the available time and money by bringing in the surgeon, and that defendants’ counsel had in his file every report Dr. Hill ever made concerning plaintiff’s injury. The trial judge sustained defendants’ objection and denied a mistrial. There was no error, as Dr. Hill’s absence was raised by defendants inviting plaintiffs rebuttal (see Lembeck v. Brady (1966), 78 Ill.App.2d 146, 152, 222 N.E.2d 704), and the response was not so intemperate as to deprive defendants of a fair trial and require declaration of a mistrial.

Finally, defendants suggest the verdict is against the manifest weight of the evidence. To sustain that position, an opposite conclusion must be clearly evident, (Prowell v. Twin Mills Lumber Corp. (1967), 79 Ill.App.2d 401, 408, 223 N.E.2d 749.) This is not the case as the jury’s verdict is supported by substantial evidence; it is not our function to disturb it.

Judgment affirmed.

ABRAHAMSON and DIXON, JJ., concur.


text:
    County of Stephenson, Plaintiff-Appellee, v. Bradley and Bradley, Inc., Defendant-Appellant.
    (No. 71-34;
    Second District
    — November 17, 1971.

      Rehearing denied December 17, 1971.

      Pedderson, Menzimer, Conde & Stoner, and Dale F. Conde, both of Rockford, for appellant.
    Dexter A. Knowlton, State’s Attorney, of Freeport, (F. Lawrence Lenz, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Stephenson County was served with a demand of Bradley and Bradley, Inc., for arbitration pursuant to a provision contained in a contract for services under an American Institute of Architects standard form of Agreement between Owner and Architect. The plaintiff, Stephenson County, then filed a suit for declaratory judgment against Bradley and Bradley, Inc., praying for a finding that the written contract was void; for an order that defendant submit its claim as provided by 111. Rev. Stat. 1969, ch. 34, par. 605; for an injunction restraining arbitration until final decision and for any other proper relief. In this appeal, defendant seeks reversal of a summary judgment for Stephenson County granted pursuant to motion supported by affidavits of various county officials and for an instruction that the parties proceed with arbitration.

Stephenson County alleged it had not agreed to the terms and conditions of the contract dated August 13, 1968, containing the arbitration clause and providing that the architect was to be paid 20% of the basic fee in the event it was necessary to cancel the contract “after failure of bond issues and abandonment of project * * Incorporated into

the complaint by reference was a copy of an August 13, 1968, resolution of the Stephenson County Board of Supervisors to employ defendant to prepare preliminary drawings for the construction of a nursing home for submission to the public in a November 5, 1968, referendum. This resolution provides that defendant’s remuneration was to be designated in a written agreement between the Board and the architects “to the agreement of both parties hereto, it being understood by the Board at this time that no fee for said services to be rendered by said architects shall be owing for work performed by said architects prior to said referendum.”

The voters did not approve the proposed construction on November 5, 1968. Defendant was subsequently asked to redesign the project and submit changes in plans which plaintiff county rejected, terminating the architectural services. The complaint aUeges that the demand for arbitration which seeks an award of $30,820, includes aU of defendant’s services, and that plaintiffs offer to pay a reasonable amount for services rendered after failure of the referendum was refused by defendants.

Included in the record as defendant’s exhibit is a letter of an assistant State’s Attorney dated August 23, 1968, stating he had reviewed the proposed contract, and clarifying several items not relevant here. The contract itself is signed on behalf of Stephenson County by the Chairman of the Board of Supervisors and the Chairman of the Stephenson Home Committee. Their affidavits, as well as that of the county clerk, were filed in support of the motoin for summary judgment.

The Chairman of the Board of Supervisors states in his affidavit that architects were interviewed prior to employment of defendant at which time defendant’s reprsentative responded “We are gambling with you” in answer to a question concerning what would happen to architect’s fees if the November referendum failed. The affidavit continues that the Board of Supervisors voted to accept the Nursing Home Committee’s recommendation to employ defendant on the basis they were not to be paid for services rendered or work performed prior to the November referendum. Affiant states the contract was presented to him in December of 1968 after the project had failed to gain approval in the referendum, with the request he sign it as Chairman of the Board of Supervisors which he first refused to do because it was not described in the terms and conditions voted upon by the Board in August. Subsequently, affiant says, the county clerk told him the assistant state’s attorney had no objection to his signing the contract because it would provide a tax benefit to the architects due to the fact the referendum had failed. He signed it in

December, 1968, and left it with the county clerk.

The affidavit of the Chairman of the Nursing Home Committee states he suggested, after the Board agreed to select defendant as its architect, that an employment resolution be drawn up and signed at which time a representative of defendant stated: “Forget about that, I’ll have a contract drawn up.” In October, 1968, before the referendum another representative of defendant handed affiant the contract in question during a visit at a nursing home with the request he “get this signed some time.” Affiant signed the contract at the county clerk’s office and left it there.

The county clerk’s affidavit states he had examined the minutes of the meetings of the Stephenson County Board of Supervisors and had found in them only three references to defendant prior to the nursing home referendum on November 5, 1968. The first was the August 13, 1968, resolution incorporated into plaintiff’s complaint and quoted in pertinent part above, and the other two references did not concern the written contract or defendant’s compensation.

The trial court stated in a written opinion that the Board of Supervisors understood no fee would be owing to the architects for work performed prior to the referendum; that the August 13, 1968, resolution of the Board of Supervisors was substantiated by the affidavits; that the County was not bound by any contract unless its provisions were authorized or approved by the entire Board of Supervisors; that it does not appear this was done at any time; and that the Chairmen were not authorized by the Board to enter into an agreement to pay defendant for services rendered prior to the referendum. It was the trial court’s opinion that as a legal contract did not exist, there was nothing to arbitrate. Plaintiff county’s motion for summary judgment was granted, and defendant’s motion to dismiss the complaint or alternatively to order parties to proceed with arbitration pursuant to the Illinois Uniform Arbitration Act (Ill. Rev. Stat. 1967, ch. 10, par. 102 et seq.) was denied. Arbitration was permanently enjoined, and defendant was ordered to submit its claim against the county in the manner and form required by Ill. Rev. Stat. 1969, ch. 34, par. 605.

The trial court is obviously correct in its view that there was nothing to arbitrate unless a valid agreement between Stephenson County and the architect was existing. Even given a valid contract containing an arbitration provision, the scope of such provisions have often been construed by the courts and it has been said that “Despite the salutory purpose of our Arbitration Act, parties are only bound to arbitrate those issues which by clear language they have agreed to arbitrate * * Flood v. Country Mutual Ins. Co. 1968, 41 Ill.2d 91, 94, 242 N.E.2d 149.

The trial court is similarly correct in deciding the County was not bound by the written contract upon which defendant’s arbitration demand is grounded unless its provisions were authorized or approved by the Board of Supervisors. A county board alone has power by law to bind a county contract, and there is no such power in an individual or a committee unless that power has been bestowed by the county board, (Sexton v. County of Cook (1885), 114 Ill. 174, 179, 28 N.E. 608 County Supervisors), including tibe Chairman of the Board, have no power to act individually. It is only when convened and acting together as a board of supervisors that they represent and bind the county by their acts. Bouton v. McDonough County (1877), 84 Ill. 384, 394 and 395; Pauley v. County of Madison (1919), 288 Ill. 255, 260, 123 N.E. 281.

The rights of the parties turn upon whether the Stephenson County Board of Supervisors acting together ever authorized the signing of the written contract or approved of its terms. We cannot agree with defendant that this threshold question is only one of many which are properly to be determined by the arbitrator. Defendant has urged this conclusion in reliance upon a number of cases dealing with the scope of arbitration provisions, but unlike those situations, denial of the existence of an agreement to arbitrate calls for the decision of a court rather than the arbitrator. The Uniform Arbitration Act provides for application to a court to compel or stay arbitration, Ill. Rev. Stat. 1967, ch. 10, par. 102(a) and (b) and this statutory provision is part of any contract containing an arbitration clause just as if it were expressly incorporated. (Globe v. Central Sec. Mut. Ins. Co. (1970), 125 Ill.App.2d 298, 260 N.E.2d 860.) While defendant correctly argues that the merits of defenses must be presented to the arbitrator, the single question — whether there is an agreement to arbitrate — is for the court.

Although Stephenson County filed a declaratory judgment action rather than an application to stay arbitration under the Act, the existence of an agreement to arbitrate was squarely raised and ruled upon. No authority has been cited to us, and we have found none, holding that an application to compel or stay arbitration is the exclusive route to a judicial determination of this threshold question. The remedies do not appear incompatible, and in somewhat different circumstances, a suit for declaratory judgment was filed and maintained after a demand for arbitration had been made by the opposing party. Emcasco Ins. Co. v. Alverez (1969), 110 Ill.App.2d 307, 249 N.E.2d 190.

We further agree with the trial court that the record contains an expressed understanding of the Board of Supervisors that no fee would be payable for architectural services rendered prior to the date of the referendum, and that it does not appear from the record that the Board ever approved entering into this particular written contract encompassing as it does an agreement to arbitrate disputes and to pay defendant a percentage of the regular fee for all work performed.

We find the record before us, however, less satisfactory than did the trial court. The affidavit of the Chairman of the Board of Supervisors is the most persuasive of those filed, but it includes third-hand hearsay. The affidavit of the Chairman of the Nursing Home Committee says little and explains nothing of a seeming conflict in the affiant’s signing a contract at variance with the understanding of the Board upon which he sat as a Supervisor. The county clerk’s examination of the minutes of the meeting of the Board of Supervisors produced the August 13,1968, resolution concerning employment of the architect but did not extend beyond the date of the referendum, although the parties had subsequent dealings.

Despite these obscurities, we must conclude upon this record that the written contract was signed by two supervisors acting without authorization. Defendant has failed to show any agreement to arbitrate by Stephenson County and had opportunity to present any facts tending to show a later ratification by the Board of Supervisors or mistake in its record of proceedings requiring correction by amendment. Accordingly, we affirm summary judgment for the plaintiff and that portion of the order enjoining arbitration.

We reverse the order insofar as it requires defendant to submit its claim against the county in the manner and form provided in Ill. Rev. Stat. 1969, ch. 34, par. 605. This section, which relates to verification and auditing claims against a county, and to appeals to the circuit court from decisions of the county board, is not an exclusive remedy. Ill. Rev. Stat. 1969, ch. 34, par. 601, provides that suits against a county may be “commenced” in the circuit court within tire county, a totally different method from appealing to the circuit court from a decision of a county board. (Lord v. Bd. of Sup’rs. of Kane County (1942), 314 Ill.App.161, 164, 165, 41 N.E.2d 106.) The choice of remedy should remain with the party having the claim.

Affirmed in part; reversed in part and remanded with direction to the trial court to set aside that portion of the order requiring defendant to submit its claim as provided in Ill. Rev. Stat. 1969, ch. 34, par. 601.

MORAN, P. J., and ABRAHAMSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Patrick Heuton, Defendant-Appellant.
    (No. 70-120;
    Second District
    — November 19, 1971.
    Edwin L. Douglas, Public Defender, of Glen Ellyn, (John O. Vogel and Frank Wesolowski, Assistant Public Defenders, of counsel,) for appellant.

      Wm. V. Hopf, State’s Attorney, of Wheaton, (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel,) for appellee.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Patrick Heuton, the defendant, was indicted on charges of attempted armed robbery, attempted murder and aggravated battery. He was convicted of the armed robbery attempt and the aggravated battery after a jury trial and was sentenced to 3-7 years in the penitentiary.

On June 9th, 1969, defendant and two others had entered the Burger King Restaurant in Glen Ellyn at a time when it was closed for business. One of the subjects-not defendant-shot and wounded an employee, after which the shooting victim and two other employees were ordered into the restaurant “cooler.” No money or property was taken.

Defendant first argues that in the count of the indictment in which he was charged with aggravated battery, he was improperly charged as a principal with no allegations of conduct which would demonstrate that he was being charged with accountability for anothers’ acts. (Ill. Rev. Stat. 1969, ch. 38, pars. 5 — 1, 5 — 2, 5 — 3.) We find that the indictment was sufficient since an accused may be properly charged as a principal even though he was only an accessory to the crime. (People v. Touhy (1964), 31 Ill.2d 236, 239, 240; People v. Chellew (1969), 104 Ill.App.2d 100, 102.) Defendant seeks to distinguish both Touhy and Chellew by suggesting that the cases did not deal with the sufficiency of the indictment but only the nature of accountability. The cases do not support this argument. Defendant also suggests that no court has reached the. issue based on ch. 38, par. 5 — 3, supra,

“A person who is legally accountable for the conduct of another * * * may be convicted upon proof that the offense was committed and that he was so accountable, * * (Emphasis added.)

Par. 5 — 3 makes no reference to the form of the indictment. It deals only with the nature of the proof required for a separate conviction of one who, under the definitions in Par. 5 — 1 and 5 — 2, supra, is legally accountable for the conduct of another.

Defendant next claims that the People’s Instruction No. 15 (IPI-Criminal 11.08), the issue instruction relating to aggravated battery, improperly omitted an essential element of the crime of Battery (Ill. Rev. Stat. 1969, ch. 38, pars. 12 — 3, 12 — 4), “without legal justification.” The quoted language was contained in the indictment, but under the circumstances of this case it was not necessary to instruct the jury as to this defense. A defense of justifiable use of force is an affirmative defense under the provisions of Ill. Rev. Stat. 1969, ch. 38, par. 7 — 14. There was no evidence at the trial which could be said to raise the affirmative defense. The defendant’s testimony was that he was present at the scene because he thought his companion was going there to visit a friend. He claimed to be unarmed and unaware of the proposed armed robbery. Under these circumstances the instruction, as given, was proper.

The further contention by defendant that he was denied effective representation by his private counsel is without merit from our examination of the entire record. The representation did not deny defendant of a fair trial under any applicable standards. See People v. Somerville (1969), 42 Ill.2d 1, 5; People v. Bliss (1970), 44 Ill.2d 363, 370; and People v. Bernette (1970), 45 Ill.2d 227, 233, 234.

We also reject defendant’s argument that the sentence was erroneous because it applied to the indictment and not to the separate counts. The single sentence for the crime of aggravated battery and attempted armed robbery was proper since both offenses arose from the same conduct or transaction. Ill. Rev. Stat. 1969, ch. 38, pars. 1 — 7(m), 2 — 4; People v. Stewart (1970), 45 Ill.2d 310, 313; People v. Stevenson (1969), 107 Ill.App.2d 441, 449.

The judgment below is affirmed.

Judgment affirmed.

MORAN, P. J., and ABRAHAMSON, J., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Waters et al., Defendants-Appellants.
    (Nos. 70-203, 70-204 cons.;
    Second District
    — November 18, 1971.

      E. Roger Horsky, Illinois Defender Project, for appellant.
    Honorable Philip G. Reinhard, State’s Attorney, of Rockford, (Daniel D. Doyle, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court on Rehearing:

The defendants were convicted of Armed Robbery after a jury trial. They claimed they were not identified beyond a reasonable doubt as perpetrators of the crime, and that various trial errors require an outright reversal, a reversal for a new trial, or a reversal for a limited hearing on the identification evidence.

The amed robbery occurred in a lighted home over a period of approximately four and one-half to five hours, between approximately 10:30 P.M. on September 30th, 1969, and approximately 3:00 A.M. on October 1st. These defendants, who are brothers, were indicted as being two of three men who invaded the home and inflicted various savage acts of physical and psychological torture upon the victims in an effort to induce them to disclose the location of money believed by the robbers to be hidden in the house. One of the robbers wore a mask throughout. The defendants were identified as being the unmasked robbers-Henry Waters by two of the victims, Mrs. Betty Vella and her daughter Kathy Vella, and Gilbert Waters by Mrs. Vella.

No motion to suppress the identifications was made at any time. However, defendants now suggest that “impermissible suggestions could have occurred, irrevocably tainting the in-court identifications.’’ This argument is principally based upon the fact that the State, in answer to a discovery motion, responded that Kathy Vella identified Gilbert Waters and, thereafter, prior to trial amended this to read Henry Waters; and that in detective Frank England’s affidavit in support of a search warrant he stated that he showed Mrs. Vella “a number of photographs of possible suspects,” and that the record does not show the circumstances relating to the times of observation and identification.

The defendants suggest that the defendants were “nominated” as suspects — noting that the police were aware of the existence of Henry Waters before the date of the crime in connection with a previous arrest — and that this influenced the out-of-court and later in-court identifications. The record does not support this argument, and it remains pure speculation. The defendants have cited People v. Holiday (1970), 47 Ill.2d 300 in support of their request that the cause be remanded for a limited hearing on the validity of the in-court identifications. The case is not authority for this procedure on the facts present here. In Holiday, the record clearly showed that the manner in which photographs were shown to witnesses was inherently suspect so that the opportunity of the identification witnesses to observe the defendants was critical to a determination of whether their viewing of the defendant’s photograph was likely to lead them to a mistaken identity. Therein, the court could not conclude from the very limited opportunity the witnesses had to observe that the identification testimony was properly admitted without a preliminary hearing-which had been denied. Here, (in addition to the fact that no such preliminary hearing was requested and no motion made to suppress the in-court identification) there are not similar circumstances which would cast doubt on the photo identification procedure. The opportunity to observe, particularly by Mrs. Vella, was extraordinarily present at numerous occasions over a long period of time. Defendants have asked us to consider discrepancies in the witnesses’ description of the defendants and differences between their actual appearance at the trial and the descriptions given, but we consider these matters as going to the credibility of the witnesses and the weight to be given their testimony. See People v. Setzke (1961), 22 Ill.2d 582, 586.

From our review of the entire record, we find that the positive in-court identifications were sufficient to independently estabfish the identity of the defendants beyond a reasonable doubt. See People v. Watkins (1970), 46 Ill.2d 273, 278; People v. Hunter (1961), 23 Ill.2d 177, 179, 180; People v. Brown (1959), 16 Ill.2d 482, 485; People v. Hudson (1970), 46 Ill.2d 177, 189; People v. Triplett (1970), 46 Ill.2d 109, 113.

Defendants next urge that the trial court erred in permitting Mrs. VeHa to identify a photograph of the car (admittedly that of defendants) which was taken some eighteen days after the date of the robbery, as depicting an automobile which she testified she had observed passing slowly by her house the morning of September 30th. Mrs. Vella testified to the particular things she had noticed about the car, including details of a broken tail-light, spots of primer paint, and the general battered condition of tihe car. Defendants claim that the testimony was being suggested by the photo which she was looking at when she testified and that she was giving its details and not necessarily what she had observed previously. Defendants liken the issue to that of a “show-up” and again suggest a remandment per People v. Holiday, 47 Ill.2d 300, supra, at page 311, for a hearing into the circumstances bearing on the admissibility of the testimony identifying the automobile.

We do not agree that photographs of objects referred to by a witness in corroboration of some aspect of her testimony are thereupon subject to aU the prophylactic rules relating to the identity of the persons of defendants charged with crime (e.g., Stovall v. Denno (1967), 18 L.Ed.2d 1199; Simmons v. United States (1968), 19 L.Ed.2d 1247, 1253; People v. Holiday, 47 Ill.2d 300, supra at pages 306, 307.) The issues are similarly, however, fundamental fairness of trial procedure and whether evidentiary rulings affect substantial rights of the accused. No facts in this record have been shown to demonstrate such unfairness, and we wiH not presume that there was undue suggestion. See People v. Watkins, 46 Ill.2d 273, supra, at page 278.

The prosecutor, in final argument, said that Mrs. VeHa had seen Henry Waters driving the car tile morning of September 30th. This was erroneous, as Mrs. VeHa did not testify that she had seen Henry Waters in the car. (There was testimony of another witness that he had seen Henry Waters driving in the same car some four days earlier.) No objection was made to the statement at the trial, nor was it specifically raised in the motion for a new trial. We do not consider this to be in any way the kind of “plain error” which would be grounds for reversal. The case of People v. Burton (1969), 44 Ill.2d 53 cited by defendants in support of this argument is clearly inapplicable. See People v. Trefonas (1956), 9 Ill.2d 92, 98.

Defendants also claim that the trial court erred in refusing to instruct on the defense of alibi. Based upon the recent Supreme Court decision of People v. Poe (1971), 48 Ill.2d 506, 511, 512, we granted a rehearing and have withdrawn our previous opinion. We now hold that it was not error for the trial court to refuse to give an alibi instruction.

The judgment below is affirmed.

Judgment affirmed.

ABRAHAMSON and GUILD, JJ., concur.

       In the opinion which we have withdrawn we noted inter alia: “This appears to be a question of first impression in Illinois following the publication of I.P.I. Criminal. However, no previous Illinois case has held, when there are proofs sufficient to raise the defense, that a defendant is not entitled to an alibi instruction; and in The People v. Scott, 401 Ill. 80, 86 (1948), the court held the refusal to give an alibi instruction was reversible error. The difficulties encountered in framing an alibi instruction in terms which will not mislead a jury on the State’s burden of proof account for the “troubled history” of particular types of alibi instructions noted and charted in detail in The People v. Pearson, 19 Ill.2d 609, supra, at pages 612-614, and may be a further argument for omitting the instruction. Nevertheless, the great weight of authority appears to favor the view that it is error to refuse to instruct a jury as to alibi and, further, that the requirement is not satisfied by general instructions that guilt must be proved beyond a reasonable doubt. See 53 Am. Jur.-Trial-Sec. 659; see also Pattern Instructions, New York-Form 28; Wis, J. I., Sec. 775-1962; Cal. J. I. C. 4.50, 3dEd, 1370-123; Fla. Sec. 35.91; Ohio, Sec. 90.1 et seq.; Dist of Columbia, Instruction 116; and 7th Cir. Ct of Appeals, Sec. 5.01-all approving instructions on the subject of alibi, with supporting authorities. See also Anno: 118 A.L.R. 1303 et seq. This view is consistent with the Illinois cases which hold that a defendant is entitled to instructions supportive of his theory of the case if there is even slight evidence as a basis. See, e.g. The People v. Matter, 371 Ill. 333, 338, 339 (1939).” While the People v. Poe, 48 Ill.2d 506, supra, did not refer to Scott, it must be taken as inferentially overruling that authority.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Carl Pruitt, Defendant-Appellant.
    (No. 70-166;
    Second District
    — November 19, 1971.
    E. Roger Horsky, of Defender Project, of Elgin, and Frederick F. Cohn, of Chicago, for appellant.
    Charles Marshall, States Attorney, of Sycamore, (James M. Carr, Assistant State’s Attorney, of counsel,) for the People.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court;

Carl Pruitt, the defendant, was indicted for Burglary and Attempt Burglary. Upon a trial before the court, without a jury, defendant was found guilty and sentenced to 1-4 years in the penitentiary.

He urges reversal on the bases that although indigent he was forced to trial and also was sentenced without counsel or a knowing and understanding waiver of his right to counsel.

It appears from the record that after defendant was arrested, but before he was indicted, the Public Defender was appointed to represent him. Defendant appeared with the Public Defender at a preliminary hearing held on November 7th, 1969, and stated that he wished to secure private counsel. The Public Defender was permitted to withdraw. Defendant was asked whether he wanted to proceed and responded, “Yes.” The preliminary hearing was thereupon held, with defendant acting pro se. Defendant was arraigned on March 12th, 1970, and appeared without counsel. On the court’s inquiry, defendant said he intended to employ a lawyer. He stated that the lawyer was unable to be there that day but had advised him to ask for a continuance and to plead not guilty. The court accepted the plea and placed the case on the April jury calendar, starting April 13th.

On April 13th, 1970, defendant again appeared in court. He was asked if he had a lawyer and responded, “No.” The court advised him that the case was on the jury calendar. Defendant stated that he had waived jury “quite a while ago.” However, there was no written waiver in the file and the court advised defendant of his right to a jury and then accepted this waiver. The case was set for May 4th, 1970, for trial before the court.

On May 4th, defendant appeared without counsel and there was the following colloquy:

“The Court: You knew you were going to trial this morning?

The Defendant: Yes, I knew. I knew I was going to trial. I didn’t intentionally come late, though.

The Court: I’m talking about the attorney. You say you have no attorney. You said you wanted to try this without an attorney.

The Defendant: I did?

The Court: That’s what you told me the last time here.

The Defendant: I said I wanted a bench trial.

The Court: That’s right.

The Defendant: I didn’t say anything about an attorney, not that I recall.

The Court: Well, Mr. Pruitt, my recollection was that your case was up for the jury.

The Defendant: Yes.

The Court: And I said, “Do you want to try this without a lawyer before a jury,” and you said, “No, I want a bench trial. I don’t have a lawyer.”

The Defendant: Yes.

The Court: That’s what you told me.

The Defendant: Maybe I said that, but I never meant that I wanted a trial without a lawyer. I never meant that, but if it’s no other way, I’ll take it without a lawyer, then, but I never said that.

The Court: Mr. Pruitt, I want to make it clear to you that you have a privilege to try your case. I’m not going to force a lawyer on you. On the other hand, if you wanted a lawyer you had plenty of opportunity in this case. This case is quite old.

The Defendant: I came over here this past week to try to get a Public Defender, but they said I have to do that in court.

The Court: That’s right. You’ve been in court quite a few times.

This has been going on since last October.

The Defendant: For a while I did have a lawyer, but he wasn’t able to take the case any more. He’s never showed. I had to get it straight with him that he’s not taking the case so I had to try to get the Public Defender.

The Court: As I recall this case, you had the Public Defender discharged.

The Defendant: That was downstairs and he never showed up.” (The colloquy at the preliminary hearing in which the Public Defender withdrew, stating that he was doing so to enable defendant to obtain the attorney of his choice, was then read to the court.) The colloquy continued:

“The Defendant: That was after about four appearances in court. This is the first time he showed up on about the four appearances, and I had to be continued all these times because he never showed up so I said I wouldn’t use him because he never showed up.

The Court: What are you asking the Court this morning?

The Defendant: I’ll go without a lawyer. I’ll take trial without a lawyer.”

The State concedes that the procedure did not literally comply with the standards respecting right to counsel and waiver of the right either as codified in the Supreme Court Rules (Ill. Rev. Stat. 1969, ch. 110A, par. 401(b)), or as stated in People v. Hessenauer (1970), 45 Ill.2d 63. The State agrees that under the record, defendant was not offered nor did he knowingly and understandingly reject representation by appointed counsel. However, the argument is made, on principle, that the constitutional right to counsel was never intended to permit a defendant to obstruct and delay the conduct of judicial proceedings.

The defendant has argued that the right of a criminal defendant to counsel is absolute when not properly waived and that the right is not dependent on the amount of delay or inconvenience experienced by the trial court or the prosecutor. It is unnecessary to decide this broad issue in reaching our conclusion under the circumstances of this case. For defendant does not deny that a deliberate and unreasonable refusal to retain counsel may constitute a waiver of his right to counsel, but he states that his acts did not amount to a waiver. We agree.

Considering the words and conduct of defendant and indulging, as we must, in every reasonable presumption against waiver (People v. Hessenauer, 45 Ill.2d 63, at page 68, supra; People v. Mackey (1965), 33 Ill.2d 436, 438; People v. Bush (1965), 32 Ill.2d 484, 487, 488), it is clear that defendant did not effectively waive his constitutional right to counsel.

The judgment below is therefore reversed and the cause remanded for further proceedings consistent with this opinion.

Reversed and remanded with directions.

MORAN, P. J., and ABRAHAMSON, J., concur.

      The court’s recollection is not supported by the record. There had been no reference to trial by defendant without a lawyer.


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    The People of the State of Illinois, Plaintiff-Appellee, v. James Sepanek, Defendant-Appellant.
    (No. 71-159;
    Second District
    — November 19, 1971.
    Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan, for the People.
   Mr. JUSTICE ABRAHAMSON

delivered the opinion of the court:

The defendant, James Sepanek, was indicted for the offenses of attempted murder (two counts) and aggravated battery and the public defender was appointed to defend him. On January 14, 1971, a jury was impanelled to determine if he was competent to stand trial pursuant to a petition brought by the state under section 104 — 2 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 104 — 2.) At the conclusion of the hearing, the jury returned a verdict that the defendant was incompetent and he was so adjudged and committed to the Department of Mental Health.

On January 19, 1971, the defendant indicated that he would appeal the judgment order and the district defender of the Illinois Defender Project was appointed to represent him for that purpose. On July 20, 1971, the Illinois Defender Project moved to withdraw on the grounds that the appeal was frivolous. A copy of that motion was furnished to the defendant together with our order that he file any additional matters that may have been meritorious on his behalf on or before August 27. The defendant has failed to file anything further.

A judgment order finding a defendant incompetent to stand trial is not a final judgment. (People v. Williams (Ill.App.2d), 266 N.E.2d 145; People v. Cornelius, 332 Ill.App. 271.) It is also not a finding entitled to an interlocutory appeal under the Supreme Court Rules. People v. Williams, ibid.; Ill. Rev. Stat. 1969, ch. 110A, par. 307.

Accordingly, the motion of the Defender Project to withdraw is granted and the appeal dismissed.

Appeal dismissed.

GUILD and SEIDENFELD, JJ., concur.