author: Mr. PRESIDING JUSTICE ALLOY,

text:
      In re Estate of Alice Pryce Georgen, Deceased.
    (No. 71-41;
    Third District
    — December 28, 1971.

      Carroll, Connelly & Hartigan, of Chicago, for appellant.
    Robert P. Boeye, of Rock Island, for appellee.
   Mr. PRESIDING JUSTICE ALLOY,

delivered the opinion of the court:

Rock Island Bank and Trust Company, Administrator with Will Annexed of the Estate of Alice Pryce Georgen, deceased (in Illinois Ancil-Iary Proceedings), appeals from an order of the Circuit Court of Rock Island County entered on February 26,1971, denying the petition of such ancillary administrator to charge certain real estate with the expenses of administration, State Inheritance taxes, and Federal Estate taxes, etc. The testamentary trustee under the will of the decedent, Alice Pryce Georgen, the First National Bank of Rock Island, defended as appellee.

Alice Pryce Georgen died a resident of Sarasota, Florida, on December 1, 1965, leaving her surviving husband, Wendell Lattner Georgen as her only heir at law. Decedent never had any natural children nor had she adopted any children during her lifetime. At the time of her death she left a last will and testament dated October 25,1965, and a codicil thereto dated November 10,1965. The will and codicil were admitted to probate in Florida and Palmer First National Bank and Trust Company of Sarasota, Florida, was appointed Executor of her Estate in Florida. In view of the fact that decedent had died owning an undivided one-third (Vs) interest as a tenant in common in certain Rock Island County farm real estate in Illinois (herein referred to as “The John R. Pryce Farms”), ancillary probate proceedings were instituted in the Circuit Court of Rock Island County. The will and codicil executed by the decedent, and admitted to probate in Florida, were also admitted to probate in the Illinois proceedings and plaintiff in this action was appointed Administrator with Will Annexed.

In decedent’s will executed on October 25, 1965, she provided that the debts, expenses of decedent’s last illness, funeral expenses, expenses of administration, inheritance taxes and estate taxes should be paid from and charged against the principal of her residuary. Pertinent articles of the will were Articles III and IV which provided as follows:

“ARTICLE III. I give and bequeath all of my feminine rings, feminine jewelry, furs and feminine clothing, to my niece, Jane Criswell, if she survives me. I give and bequeath all of my personal and household effects such as automobiles, furniture, furnishings, silver, dishes, books and pictures, (including policies of insurance, if feasible) to my beloved husband, Wendell Lattner Georgen, if he survives me by thirty (30) days.
ARTICLE IV. I give, devise and bequeath all the rest, residue and remainder of my estate, being all personal, real and mixed property, wheresoever situated, in which I have any interest at the time of my death, including any property over which I have any power of appointment, to my hereinafter named Trustee # *

The trust established by the will directed the trustee to pay the trust income to the decedent’s husband during his life, with various gifts over to decedent’s blood relatives. In the will, the trustee was also given a discretionary right to invade the principal of the trust for the benefit of decedents husband should that be necessary for the husband’s reasonable comfort and support.

In the codicil executed by decedent on November 10,1965, she changed her estate plan substantially. Under the codicil, Articles III and IV were amended to read (in relevant parts) as follows:

“ARTICLE III. (a) I give and bequeath all of my feminine rings, feminine jewelry, furs and feminine clothing, to my niece, Jane Criswell, if she survives me.
(b) I give, devise and bequeath all the rest of my personal property and all of my real estate, wheresoever situated, except any interest which I have at the date of my death in those three farms which are commonly known as ‘The John R. Pryce Farms’ which are located in the County of Rock Island, in the State of Illinois, within about two (2) miles of the City of Moline Airport, to my beloved husband, Wendell Lattner Georgen, if he survives me by thirty (30) days.
ARTICLE IV. I give, devise and bequeath all the rest, residue and remainder of my estate, being all personal, real and mixed property, wheresoever situated, especially including herein any interest which I have at the date of my death in those three farms which are commonly known as ‘The John R. Pryce Farms’ which are located in the County of Rock Island, in the State of Illinois, within about two (2) miles of the City of Moline Airport, including any property over which I have any power of appointment, to my hereinafter named Trustee * *

The codicil, it is noted, changed the testamentary trust provisions to prevent the trustee from invading the principal of the trust and specifically provided that the husband was not to have any power to invade the principal of the trust. The codicil also in an amendment to the will expressed an intention and request that the trustee retain any interest which decedent owned at the date of her death in The John R. Pryce Farms irrespective of any lack of diversification, risk or nonproductivity.

It appears from the record that the gross date of death value of decedent’s interest in “The John R. Pryce Farms” was $180,323.66. Other properties which were subject to Florida probate were worth $48,141.49. Expenses and taxes which were in litigation in this action amounted to $38,652.40 which were paid or advanced by plaintiff and the Palmer First National Rank and Trust Company of Sarasota, Florida. The record also shows that certain portions of “The John R. Pryce Farms” were sold in condemnation proceedings and as a result of the sale the trustee now holds (in addition to the remaining portions of the real estate) cash and securities in the approximate value of $65,000.

Following a hearing in the trial court such court denied plaintiff’s petition for reimbursement from the trustee. The trial court found that decedent intended to specifically devise her interest in “The John R. Pryce Farms” to her testamentary trustee, and that the residuary clause of her will was Article III (b) in the Codicil quoted above. As a result of such determination, the trial court found that the debts, taxes and costs of administration of the estate were to be borne by the residuary legatee, decedent’s husband, or to be satisfied out of the assets bequeathed to the husband.

On appeal in this Court, plaintiff contends that the residuary estate under decedent’s will is clearly the principal of the testamentary trust, and that in accordance with the manifest intent of the decedent as expressed in Articles I and II of her will, republished by her codicil, the trust, as the residuary estate, must bear the expenses for which reimbursement is sought in this action. Plaintiff refers to the principle that ambiguities in the Will shall be resolved in favor of testator’s heirs at law (i.e., decedent’s husband), in preference to those not so closely related. (Boys v. Boys, 328 Ill. 47, 51, 159 N.E. 217.) It is particularly pointed out that as a result of the trial court’s ruling the decedent’s husband’s net probate receipts will be only $9,489.09 ($48,141.49 less taxes, fees, etc. of $38,-652.40) while the principal beneficiaries of the testamentary trust will realize $180,323.66 free of all claims for taxes, funeral expenses and other expenses of administration of the estate.

Normally we would find that a clause in which the traditional language of “all the rest, residue and remainder” was used, should be construed as the residuary estate for the purpose of payment of expenses of administration and taxes as herein referred to. We do not, however, believe that the presumption in the Boys case should be applied in the instant case. To do so we feel would require us to disregard the language of decedent’s will and her intent as expressed therein. Under the precedents in the State of Illinois as expressed in Barnhart v. Barnhart, 415 Ill. 303, 313, 114 N.E.2d 378, it is stated that:

“In construing a will the question for determination by the court is not what the testator meant to say but rather what he meant by what he did say. The primary rule of construction is that the intention of the testator as expressed in his will governs the distribution of his estate. The intention of the testator, once it has been ascertained, will be given full effect unless to do so would violate some settled rule of law or be contrary to public policy. * * * All rules of construction yield to the intention of the testator * *

This rule of construction is well settled in the State of Illinois.

As noted in the will, from Articles I and II there is clearly manifest the decedent’s intent that the debts, funeral expenses and the expenses of administration, and estate and inheritance taxes be paid from her residuary estate. The question for determination is to ascertain what was meant by testatrix by her reference to her residuary estate. In Article III (a) of the wiU, as amended by the codicil, decedent specificaUy bequeathed her feminine jewelry, furs, and clothing to her niece. Then in Article 111(b) she gave all the rest of her personal property and all of her real estate, except her interest in “The John R. Pryce Farms,” to her husband if he survived her for a period of thirty (30) days. In the event her husband did not survive her, aU the property which would have gone to her husband, had he survived her, was to go to her testamentary trustee. It is, therefore, clear from the wiH, as amended by the codicil, that in no event did decedent intend that her interest in “The John R. Pryce Farms,” other than the income therefrom, should go to her husband. Thus, she specifically excepted "The John R. Pryce Farms” from Article 111(b) and expressly included the farms in Article IV. We have noted that in Article IV her husband was not to have power to invade the principal of the trust, which (if he survived her) would consist solely of her interest in “The John R. Pryce Farms.”

Under the foregoing plan of disposition, we agree with the court that it is clear that decedent made only one specific bequest in her wifi, that being the bequest of her feminine personalty to her niece in Article 111(a). Only in this bequest did decedent express or designate and segregate certain physical property for particular disposition which by definition constitutes a specific bequest thereof (In Re Estate of Riddel, 247 Ill.App. 175). In contrast thereto, in Article III(b) in speaking of “aH the rest of my personality, and of my real estate” and in Article IV in speaking of “aH the rest, residue and remainder of my estate,” she made general residuary bequests. In each case she spoke of property not theretofore dealt with. The two residuary bequests were apparently deemed to be necessary by decedent because of her manifest desire that in no case should her husband share in the principal of her interest in “The John R. Pryce Farms. If he did not survive her for 30 days, the two residuary clauses would merge, and everything other than the feminine personalty would pour into the testamentary trust. In such event both the personalty which was bequeathed to the husband and the farm real estate would comprise the residuary.

While the classical term “residue” is not found in Article 111(b), the language “all the rest” does appear and certainly impfies an intended residuary clause as to the personalty. As observed in In Re Estate of Betts, 2 Ill.App.2d 453, 459-60:

“No particular words or mode of expression is necessary to constitute a residuary clause * * # the testator does not use the word ‘residuary,’ but his clear intention is to create a residuary estate. He leaves to his brother * * * ‘all of my personal property not herein otherwise disposed of.’ This clearly discloses an intention to create a residuary estate.”

The cases of Retzinger v. Retzinger, 239 Ill.App. 127, reversed on procedural grounds, 331 Ill. 102, and Reid v. Corrigan, 143 Ill. 402, 32 N.E. 387, relied upon by plaintiff, we believe, are distinguishable from the case before us. In the Retzinger and Reid cases, the testators had bequeathed all their personal property to their wives, and after subsequent specific bequests and devises, used the classic residuary language (“all the rest and residue of my real and personal property;” “all the rest, residue and remainder of all my real estate”) in creating the residuary estates. Those cases thus held that certain debts or legacies should be charged against realty in the residuary estate. In the Retzinger case, the court was involved in resolving a conflict between persons holding a specific devise of real estate and residuary devisees, since there was no personal property, and thus the case was clearly inapplicable on its facts. In the Reid case the court felt that the intention of the testator was to exonerate his personal property from payment of specific legacies and to charge his residuary real estate therewith. The court, in the Reid case, we believe, was able to ascertain this intent because there was clearly only one clause of the will containing residuary language, whereas in the case before us we have two, both of which, if possible, should be given effect (Carr v. Herman, 16 Ill.2d 624, 158 N.E.2d 770). As stated in O’Hare v. Johnston, 273 Ill. 458, 466, 113 N.E. 127:

“Cases on wills may serve to guide us with respect to general rules in the construction of devises in wills, but unless a case cited be in every respect directly in point and agree in every circumstance with that in question it will have little or no weight with the courts, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.”

We conclude, accordingly, that Article 111(b) and Article IV of decedent’s will, as amended by the codicil, both provided for residuary dispositions. It, therefore, follows that taxes and expenses of administration, etc. must be paid from such assets bequeathed and devised by such articles, which together constitute the residuary estate of decedent. While this would result in an equitable apportionment of such obligations under the law presently in force in this State (Ill. Rev. Stat. 1969, ch. 3, par. 225) under the law which was in force at the time of decedent’s death, prior to January 1, 1986, the personalty was required to be first exhausted in paying expenses and taxes before recourse is had to the realty in the estate (Ill. Rev. Stat. 1965, ch. 3, par. 225; Lawless v. Lawless, 17 Ill.App.2d 481, 150 N.E.2d 646; Suiter v. Suiter, 311 Ill.App. 618, 37 N.E.2d 561). We cannot, however, direct any procedure as to payment of expenses and taxes other than as provided by the statute in effect at the time of the death of decedent.

It is also clear that the proceeds from the portions of “The John R. Pryce Farms” taken by condemnation subsequent to decedent’s death are nevertheless considered as real estate with respect to the rights and interest relating thereto. (Mayer v. McCracken, 245 Ill. 551.) We conclude that taxes and expenses sought to be charged against the property in the hands of the trustee in this cause were in fact a prior charge against the residuary personalty not included in the trust, the value of which is sufficient to pay the obligations in full. We, therefore, agree with the result reached by the trial court in denying plaintiff’s petition. The reasons stated for such conclusion by the trial court would not be material. People ex rel. Nelson v. Joliet Trust and Savings Bank, 315 Ill.App. 11, 42 N.E.2d 90.

The judgment of the Circuit Court, therefore, is affirmed.

Judgment affirmed.

STOUDER and DIXON, JJ, concur.


source: Caselaw Access Project

author: PER CURIAM:

license: Public Domain

text:
    The People ex rel. Michael Miller, Petitioner-Appellant, v. John Twomey, Warden, Illinois State Penitentiary, Respondent-Appellee.
    (No. 71-171;
    Third District
    — December 28, 1971.

      Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    Louis R. Bertani, State’s Attorney, of Joliet, for appellee.
   PER CURIAM:

This cause comes before the Court this time upon motion of Bruce Stratton, District Defender for the Third Judicial District of the Illinois Defender Project, who was appointed to represent the appellant Michael Miller in the above entitled cause. The District Defender in his motion requests permission to withdraw as counsel for appellant and in support thereof states that after careful examination of the record in the case at bar, said counsel has concluded that an appeal would be wholly frivolous and could not be successful in such cause.

We have consequently examined the record in the cause and find that defendant-appellant Michael Miller filed his pro se Petition for Writ of Habeas Corpus on April 21, 1971. The Petition was dismissed on May 12, 1971, for failure to state any factual allegations upon which relief could be granted.

Defendant is in custody pursuant to process of court (specifically being the conviction of murder in Cook County in Case No. 70-641 in November, 1970). He filed his Petition for Writ of Habeas Corpus in the Circuit Court of Will County, since he is presently incarcerated in a penal institution in such county.

Defendant appellant alleges in his petition only that his alleged “unlawful” custody is based upon failure of the Indictment to allege that the victim, one “James E. O’Conner” was an “individual” as required by Section 9 — 1(a) of Chapter 38, 1969 Illinois Revised Statutes. Under the terms of the Habeas Corpus Act (Section 5) it is provided that unless it appears from the petition itself or from documents thereto annexed, that the party can neither be discharged, admitted to bail, or otherwise relieved, the court or judge shall forthwith award a Writ of Habeas Corpus. The purpose of Habeas Corpus is to secure the release of a prisoner detained by an order of court which is absolutely void by reason of lack of jurisdiction over the person of the defendant, or the subject matter, or where something has occurred since the incarceration of the prisoner which would entitle that person to his release. (People ex rel Lewis v. Frye, 42 Ill.2d 311.) It has been clearly established that Habeas Corpus does not lie to raise errors of a non-jurisdictional nature. (People ex rel Totten v. Frye, 39 Ill.2d 549.) As indicated in People ex rel Kalec v. Pate, 38 Ill.2d 350, dismissal of a pro se petition for Habeas Carpus was proper where the petition failed to suggest anything which would affect the trial court’s jurisdiction over the appellant or any suggestion of subsequent events entitling defendant-appellant to release.

We have noted that in the Habeas Corpus Act (Ill. Rev. Stat. 1969, ch. 65, par. 22), where reasons are specified for which a prisoner may be discharged when in custody on process of court, the petition filed by defendant must set forth sufficient allegations of fact to show that his case comes within the purview of said Section 22. We have also noted in Kirkham v. People, 170 Ill. 9, that where an indictment for murder gives the name of the person killed, it imports that the deceased was a human being and no such allegation is necessary. We have also noted the Committee Comments following Section 9 — 1 of Chapter 38 (Ill. Rev. Stat. 1969), ch. 38, par. 9 — 1, Committee Comments), the statement there is to the effect that “Individual” is used to designate the victim, to distinguish him from the “person” who is the offender. It is stated to have the same meaning as “Human Being” used in the present statute, but seems easier to use.

Since an indictment failing to allege that the deceased was an “individual” or “human being” is not defective because the allegation was unnecessary, the failure to so allege certainly does not render it void and, therefore, does not present an issue which is available for implementation of the Habeas Corpus Act.

We, therefore, find that the dismissal of defendant-appellant’s petition by the Will County Circuit Court was proper in view of the fact that the petition did not allege any basis upon which he could be discharged even if a Writ were to issue.

We have heretofore entered an order allowing the motion of counsel in the above case to withdraw.

From our complete examination of the record, therefore, we find that defendant-appellant was not entitled to the relief prayed pursuant to his Petition for Writ of Habeas Corpus and that an appeal from the order dismissing it would in fact be wholly frivolous within the meaning of Anders v. California, 386 U.S. 738. The order of the Circuit Court of Will County will, therefore, be affirmed.

Judgment affirmed.


author: Mr. PRESIDING JUSTICE ALLOY Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee v. Charles O. Berry, Defendant-Appellant.
    (No. 70-91;
    Third District
    — December 28, 1971.
    STOUDER, J., dissenting.
    Theodore A. Gottfried, of Ottawa, (John L. Barton, of counsel,) for appellant.

      James N. DeWulf, State’s Attorney, of Rock Island, (F. Stewart Merdian, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Charles O. Rerry was indicted (in separate counts) for the attempted murders of Charles McSparin, Larry Ridgeway, and Michael McGrath; with the kidnapping of Robert Pannell; with the robbery of a gun from McSparin; with the attempted armed robbery of Ridgeway; with the theft of a police squad car belonging to Rock Island County; and with criminal damage to property, i.e. the squad car. The defendant pleaded guilty to each of the charges, and was sentenced to terms of imprisonment as follows: (1) From five to fifteen years on each of the three counts of attempted murder; (2) From one to five years for kidnapping; (3) From one to ten years for robbery; (4) From two to ten years for attempted armed robbery; (5) From one to ten years for theft; and (6) Six months in the county jail for criminal damage to property. All of such sentences were designated to run concurrently.

On appeal in this Court, defendant contends that it was improper for the trial court to convict and sentence him for robbery, theft, attempted armed robbery, and criminal damage to property and that such convictions or sentence should be reversed because they are for lesser offenses arising from the same transaction, since defendant has been convicted and sentenced for the greater offense of attempted murder.

The facts as disclosed by the record made by the prosecutor and defense counsel prior to sentencing, indicate that defendant, on October 12, 1969, left him home in an inebriated and angry condition after a disagreement with his wife. He was next noted at a gasoline station near the outskirts of the City of Moline where he became involved in an “altercation” with Ridgeway, the station attendant, and “attempted to take funds”. While this was occurring, McSparin, a deputy sheriff, arrived at the station and in a scuffle between the deputy and defendant, defendant obtained the deputy’s gun. After he had done so, defendant fired two shots, one at tire deputy and one at Ridgeway, both of which missed. Defendant got into the deputy’s squad car and drove it away. A short time later, defendant drove the car onto a highway median strip, where it became stuck and damaged. When McGrath, a passing motorist, stopped to see if he could be of assistance, defendant shot him in the neck. Thereafter, defendant stopped another automobile being driven by Pannell, and, after ordering the other people out of the vehicle, forced Pannell at gunpoint to drive to the Police Station in Milan, Illinois. According to the record, defendant intended to obtain ammunition for the gun which he had taken from the deputy. When defendant arrived at the Milan station he was subdued and placed under arrest by police authorities who had converged on the area.

Defendant asserts that in People v. Stewart, 45 Ill.2d 310, and in People v. Whittington, 46 Ill.2d 405, paragraph (m) of Section 1 — 7 of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(m)), was construed as prohibiting sentences, even though concurrent, for lesser offenses which occurred as part of the same transaction in which a greater offense is involved upon which there is a conviction and sentence. Defendant contends that it was improper to convict and sentence defendant for crimes of robbery, attempted robbery, theft, and criminal damage to property, on the basis that these were all “part of defendant’s resistance to and flight from arrest”. Defendant contends that, as a consequence, only his covictions and sentences for attempted murder, the most serious of the offenses, were proper. The State has confessed in this Court that it was error to convict and sentence defendant on the charge of criminal damage to property, and we agree.

We cannot, however, agree with defendant’s interpretation of the Stewart and Whittington decisions. Those cases do follow the principle that the single sentence provision of Section 1 — 7(m) of the Criminal Code should be implemented so that a conviction and sentence should be imposed only on the most serious one of a series of criminal acts resulting from the same conduct or transaction. The cases, however, as a fundamental test to be applied in determining whether separate offenses can be said to have resulted from the same conduct or transaction, specify that the test is whether the offenses were “independently motivated” or “otherwise separable”. We have had occasion to consider some applications of these principles in People v. Garry, (Ill.App.2d), 268 N.E.2d 568, and People v. Lerch, (Ill.App.2d), 268 N.E.2d 901. If we apply the tests of independent motivation or separability, as outlined in the Stewart and Whittington opinions, it is apparent that defendant was properly convicted and sentenced for each of the offenses complained about on the appeal, with the exception of the charge of criminal damage to property and kidnapping.

So far as the charges involving the deputy are concerned, it is notable that the taking of the officer’s gun and the theft of the squad car were independently motivated. The first offense was prompted by an effort to resist arrest. The second, of taking the squad car, was motivated by an effort to escape. We likewise discern a separate and independent motivation when the defendant fired at the officer. Since he had disarmed the officer defendant had successfully resisted arrest, and was in control of the situation, making the attempt to murder the deputy unnecessary either to further resistance or for making good defendant’s escape. People v. Baker, 114 Ill.App.2d 450; People v. Lerch, supra.

In considering the entire course of conduct of defendant it appears that the unprovoked shooting of McGrath, who had simply stopped to help defendant, indicates that all of the attempted murders were motivated by an unaccountable anger directed at the intended victims, rather than simply by thoughts of escape. We also see the activities involving the station attendant, Ridgeway, i.e. the attempted armed robbery and the attempted murder, as necessarily requiring separate acts and involving a different intent or mental state on part of defendant. We, therefore, conclude that the separate convictions and separate concurrent sentences specified (with the exception of the charges of criminal damage to property and kidnapping) were proper and should be affirmed.

A specific contention is made by defendant, however, that he was not fully admonished as to the consequences of his plea of guilty to the charge of kidnapping, and that it was, therefore, erroneous of the trial court to accept and enter his plea to that offense. From an examination I of the record we have concluded that unquestionably the trial court failed to explain to defendant the punishment provided for such offense. The court is expressly required to do so by Supreme Court Rule 401(b) (Ill. Rev. Stat. 1969, ch. 110A, par. 401(b)), and, also, by Section 113 — 4(c) of the Code of Criminal Procedure (111. Rev. Stat. 1969, ch. 38, par. 113 — 4(c)). As construed and applied in People v. Terry, 44 Ill.2d 38 and People v. Mackey, 33 Ill.2d 436, the provisions of the Criminal Code require the trial court to make the admonition. The purpose of the admonishment is to inform defendant of fire consequences of his plea of guilty and to give him the right to withdraw such plea if, after hearing of possible penalties, he desires to be tried by a jury. A defendant must be fully and directly apprised of the possible punishment fixed by the law so that he can intelligently or understandingly make his choice.

The State contends that the trial court’s ommission was not fatal because it could be implied from other questions put by the court to defendant and that defense counsel had discussed the matter of sentencing with defendant. An affirmative answer was made to an inquiry by the court as to whether defendant’s counsel had kept him “posted” on sentences to be recommended by the State’s Attorney. An explanation of this type by counsel outside the record could not cure the trial court’s error. The rule and statute placed the duty of explanation on the court, and preservation of such admonition in the record. A comparable argument to that advanced by the State was rejected in People v. Washington, 5 Ill.2d 58, 63, where the court said:

“We see little or no merit to a contention that a defendant who enters a plea of guilty is chargeable with knowledge of matters de hors his own trial * * #. The very purpose of Rule 27A [Rule 401B when the instant cause was tried] is to provide a form of procedure eliminating any doubt that a plea of guilty was made with full knowledge and understanding and to avoid the method of procedure where a defendant’s knowledge and understanding were held to rest solely on implications arising from the common-law record. To this end the rule has carefully spelled out the information which must be conveyed to a defendant to give him full knowledge of the charge against him, and leaves little, if any, room for indulgence in presumptions.”

We must, therefore, conclude that defendant was not sufficiently admonished as to the consequences of his plea of guilty to the charge of kidnapping and that it was error for the trial court to accept and enter the plea.

Accordingly, the judgment convicting defendant of criminal damage to property is reversed; the judgment convicting defendant of kidnapping is reversed and that cause is remanded; and all other judgments from which appeal is taken are affirmed.

Reversed in part; reversed and remanded in part; and affirmed in part.

SCOTT, J., concurs.

Mr. JUSTICE STOUDER

dissenting:

I disagree with the majority of the court. In my opinion the result reached and the interpretation of applicable rules are inconsistent with prior decisions and fair sentencing procedures. Multiple convictions and concurrent sentences therefore would appear to be and have been subjects of little interest until relatively recent times. Increasing attention has been devoted to problems of punishment by the legislature, by legal scholars and by the judiciary in an effort to improve its function as a technique of social control. In the past I have concurred in such decisions as People v. Garry, (Ill.App.2d), 268 N.E.2d 568 and People v. Lerch, (Ill.App.2d), 268 N.E.2d 901 (Petition for Leave to Appeal granted), cited in the majority opinion, but it appears to me upon reflection that the approach taken in such cases i.e. an effort to harmonize divergent views, is contrary to the goals and purposes of punishment. In particular I believe that the approach taken is inconsistent with a primary goal which should be to make judicial determinations as meaningful as practical.

Nearly every discussion of sentencing in the recent cases and current literature has as its major premise that the punishment should represent the results of a consideration of all relevant facts and circumstances. The appropriate punishment does not depend merely upon a particular offense but includes a consideration of at least all related conduct including conduct which might constitute other offenses. That an offender should not be punished twice for the same offense or the same conduct is a statement of fundamental fairness. According to the principle enunciated in the People v. Stewart, 45 Ill.2d 310, 259 N.E.2d 24 and People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679 cases this rule is applicable where the conduct is not “independently motivated” or “otherwise separable”. In this context it appears to me that acts which are reasonably contemporaneous in time and place and which have continuity of intent, motive or purpose are not independently motivated. Conversely for acts to be independently motivated or otherwise separable it appears to me that the acts must be so separated by circumstances of time and place that a period of reflection intervenes sufficient to warrant the conclusion that further or additional acts are the result of deliberate intention. Such I a view is I believe consistent with the general sentencing principles that the punishment should adequately take into account all related circumstances. Such a rule does not preclude multiple convictions and either concurrent or consecutive sentences where the acts of the offender were not related.

Two general arguments have been advanced in support of multiple sentences both concurrent or consecutive. First, it is insisted that a person should be punished for each offense which he has committed or conversely that he should not escape punishment for each offense committed. Secondly, it is argued that if related or lesser offenses are not punished then a prospective offender will not be deterred from committing other less serious offenses while committing a serious offense.

Undoubtedly the foregoing are appropriate criteria in determining the proper punishment but I submit that the principles are included in the general sentencing principle and do not necessarily require multiple concurrent sentences to carry them into effect.

In suggesting a rationale for supporting a single sentence where the conduct is not independently motivated an initial consideration arises from the manner in which multiple charges usually arise. I refer to the discretion of the State’s Attorney to bring multiple charges, to decide in his discretion whether the charges should be prosecuted and the discretionary recommendations concerning sentencing on such multiple charges. I do not suggest that tire State’s Attorney’s discretion is improper but rather that the discretionary basis or origin of multiple charges and prosecutions decreases if not eliminates the significance of the form in which the conduct of the offender is presented to the court. Often the procedure and prosecution of multiple offenses is a matter of pleading rather than one of substance. In other cases indictments or counts may be multiplied for reasons having little relation to tire seriousness of the underlying conduct.

Even though multiple offenses may be charged and prosecuted the trial judge in the assessment of punishment does not consider each offense in isolation. He determines the appropriateness of the sentence for the more serious offense as it is related to defendants other conduct and then denominates lesser sentences in relation to the most serious offense and sentence.

If multiple concurrent sentences have as their purpose additional punishment, it appears to me they are at best ambiguous and at worst meaningless. If the punishment on the most serious offense takes into account all related conduct why is more punishment either necessary or appropriate? If more incarceration is required how do concurrent sentences meaningfully contribute to such objective? Multiple convictions and concurrent sentences do not have a definable additive effect so far as the amount of punishment is concerned. While it may be conceded that multiple concurrent sentences create additional aversive pressures on the defendant i.e. may affect his parole or his criminal record after release, the intended effect is not clear.

Another aspect of the problem which has received little attention is what might be characterized as the unrestricted interchangeability of concurrent or consecutive sentences. If consecutive sentences could be imposed then alternatively concurrently sentences could be imposed and vice versa. For example if the acts are deemed independently motivated as the majority holds in this case, then either consecutive or concurrent sentences could have been imposed. There is no existing principle which could be applied to hold that the trial court erred if it had done so in declaring the sentences imposed for the offenses in the case at bar to be consecutive rather than concurrent except the general principle regarding excessiveness of a sentence. Neglecting for the moment the anomaly of consecutive indeterminate sentences since each of the multiple sentences was within the range provided by statute for the offense and since each sentence was near the minimum, how can it be said that the consecutive sentences were excessive? If each offense is entitled to be considered separately then the consecutive imposition of sentences would be immaterial. So far as excessiveness of sentence is concerned where concurrent sentences have been proposed only the most serious sentence is of any particular concern. Even though it may not be presently possible to resolve all of the paradoxes inherrent in multiple sentences a view which tends to minimize their propriety contributes to the overall fairness of the sentencing procedure.

When it comes to considering the precedents and legislation regarding this subject it seems to me that there is a line of cases culminating in People v. Whittington, 46 Ill.2d 405, 265 N.E.2d 679, which generally recognize that there are and should be limitations on the imposition of multiple sentences. The early cases referred to “transaction” as a basis for considering the propriety of multiple convictions and sentences. In People v. Stingley, 414 Ill. 398, 111 N.E.2d 548, consecutive sentences for offenses arising from a transaction were held improper although in accord with People v. Griffin, 402 Ill. 247, 83 N.E.2d 746, and People v. McMullen, 400 Ill. 253, 79 N.E.2d 470, concurrent sentences for offenses arising from a transaction were not prejudicial and hence not unfair. Our differences in interpreting the propriety of multiple sentences arise in large measure from how we may view the court’s decision in People v. Schlenger, 13 Ill.2d 63, 147 N.E.2d 316. As a departure from prior decisions the Schlenger case may be deemed to have been the first case considering the effect of multiple concurrent sentences concluding first that multiple sentences could be prejudicial and unfair and were so if arising from one transaction. In its effect on later decisions and as analyzed by subsequent commentators, each aspect of the Schlenger case has been emphasized or discounted depending upon a point of view. It should be observed that when the language in Stingley, 414 Ill. 398, 111 N.E.2d 548 and Schlenger, supra is compared and combined the net effect is to place consecutive and concurrent sentences on the same footing, a conclusion which was realized and approved by the drafting committee in its comments to Sec. 1 — 7 (m), ch. 38, Ill. Rev. Stat. 1969.

The facts in Schlenger create a somewhat narrow issue regarding what may be considered a transaction and the opinion relies in part on rules relating to double jeopardy. However the opinion does not purport to limit its application to factual situations where the double jeopardy doctrine would be applicable but on the contrary foreshadows the extension of its particular result to a broader principle. The Criminal Code of 1961 (Ill. Rev. Stat. 1961, ch. 38) adopts this broader view by requiring that all offenses arising out of the same conduct should be tried at the same time unless justice requires otherwise. (Sec. 3 — 3, Subsections (a) & (b), Ill. Rev. Stat. 1961, ch. 38.) These sections recognize the fundamental unfairness of rules which resulted in People v. Ciuici, 8 Ill.2d 619, 137 N.E.2d 40. These provisions reject the former limitation based on rules applicable to double jeopardy and give broader scope to rules of fairness where conduct is related. See People v. Golson, 32 Ill.2d 398, 207 N.E.2d 68.

It seems to me that the majority opinion in Whittington and the cases cited therein represent an evolution from single act to conduct not independently motivated in response to the statutory changes and more critical examination of fundamental fairness as applied to this problem. In this respect I agree with the minority opinion in the Whittington case that People v. Johnson, 44 Ill.2d 463, 256 N.E.2d 343, is contrary to the view expressed by the majority and in my opinion the Johnson case represents a departure from the developing authority. Johnson seems to adopt the dicta in People v. Richie, 36 Ill.2d 392, 222 N.E.2d 479, which dicta dismisses the effect of the Schlinger case with the observation that only a single act was involved. Whether the dicta in the Richie case would have the weight of persuasive authority depends on whether the view prevails that the propriety of multiple convictions and sentences depends upon the rules applicable to double jeopardy or whether such propriety depends on broader principles.


author: Mr. JUSTICE DIXON

text:
    State Farm Fire and Casualty Company, Plaintiff-Appellant, v. First National Bank and Trust Company of Pekin et al., Defendants-Appellees.
    (No. 71-15;
    Third District
    — January 4, 1972

      Davis, Morgan & Witherell, of Peoria, (John F. Dolan, of counsel,) for appellant.
    Bartley, Hession & Palmer and Moehle, Moehle, Reardon, Sincock & Associates, both of Peoria, (David A. Dvorak, of counsel,) for appellees.
   Mr. JUSTICE DIXON

delivered the opinion of the court:

This is an appeal from a declaratory judgment requiring the plaintiff, State Farm Fire and Casualty Company, to defend two lawsuits brought against its insured, Nancy J. Ehrett. The issue is whether State Farm has been relieved of its obligation to defend those lawsuits by a breach of the co-operation clause in Mrs. Ehrett’s policy.

From the record it appears that on February 21, 1968, at about 1:40 in the morning, Mrs. Ehrett was driving her automobile east on Route 8 in East Peoria, Illinois, at a speed of about 40 miles per hour, and another automobile, driven by Stanley Leland, was going west. Mrs. Ehrett looked down to locate a cigarette in her purse and did not notice the other car as it approached. The cars collided. Mr. Ehrett was hospitalized, and Mr. Leland was killed.

There were no witnesses to the collision. Mrs. Ehrett afterwards suffered from amnesia and had no recollection of any details of the accident. Mr. Leland’s body was found to have a blood alcohol level raising the presumption that he was intoxicated. Mrs. Ehrett had been observed drinking for an extended time before the accident. Most of the debris from Mr. Leland’s car had settled around it where it came to rest in the westbound lane. A corner’s jury concluded that Mrs. Ehrett’s car had crossed into the opposite lane and had caused the collision.

Later in the morning on the date of the accident, Wilda Alexander, a good friend of Mrs. Ehrett and the owner of the Cooler Tap, where Mrs. Ehrett had been drinking, visited her in her hospital room. Mrs. Alexander asked Mrs. Ehrett to say she was not at the Cooler Tap the preceding evening, in order to protect Mrs. Alexander from dram shop litigation. The two of them fabricated a story about watching a movie together on television at Mrs. Alexanders house. Thereafter on a number of occasions Mrs. Ehrett stated that she did not have a drink after 9:00 or 9:30 in the evening before the accident, and had consumed only two drinks earlier, a beer at about 4:00 P.M. and a shot of whiskey at about 9:00 P.M.

The next day, February 22, 1968, Mrs. Ehrett was visited by a claims adjuster for State Farm, and she gave him her fabricated story. Before the interview he had read a newspaper account of the accident, reporting that Mrs. Ehrett had said someone else was driving her car. He therefore had her sign a request for claim service and non-waiver of rights, wherein she agreed that State Farm would not waive any of its rights by undertaking the investigation and defense of any claims arising out of the accident. He explained that this was necessary because of the question as to the identity of the driver which was raised by the newspaper article. State Farm then procured counsel for Mrs. Ehrett.

At the inquest on February 29, 1968, there was testimony from two persons who had seen Mrs. Ehrett drinking and dancing at the Cooler Tap before the accident. Mrs. Ehrett was there represented by an attorney employed by State Farm, who later summarized the proceedings for State Farm. On March 4, 1968, an attorney acting for the family of Stanley Leland called the State Farm claims adjuster and informed him that he had six witnesses who would say that Mrs. Ehrett had been drinking almost constantly during the afternoon and evening of February 20, 1968, at the Cooler Tap and had appeared to be intoxicated. State Farm did not at that time obtain from him the names of his witnesses, nor mention them to Mrs. Ehrett. Subsequently two phone calls were made to his office but there was no answer, and no further efforts were made by State Farm to identify and question the six witnesses.

On March 27,1968, the claims adjuster submitted a report to State Farm that if the testimony concerning physical evidence at the accident scene should hold up, State Farm might have no defense possibilities with regard to legal liability of Mrs. Ehrett. He added that there appeared to be a strong basis for considering denial of coverage if it could be substantiated that Mrs. Ehrett had misrepresented facts concerning her activities prior to the accident.

The administrator of the estate of Stanley Leland brought a wrongful death action against Mrs. Ehrett, and summons was served on her August 20, 1968. A guardian for minors claiming an interest in the automobile Mr. Leland had been driving brought a property damage action against Mrs. Ehrett, and summons was delivered to her by mail October 3, 1968. State Farm was advised of the two suits on October 28, 1968, when Mrs. Ehrett brought the summonses to its office. She explained her tardiness by saying that at first she thought the wrongful death action was against two taverns and not her, but the second summons directed her to appear in court and so she decided she had to do something about the papers. At that time she executed another non-waiver agreement, being told that it was necessary because of her failure to forward the summonses promptly. Her having given a false story to conceal her drinking prior to the accident was not mentioned as another reason it was wanted.

On December 19, 1968, when the deposition of Mrs. Ehrett was about to be taken, the attorney employed by State Farm to represent her explained to her that from information obtained by the attorney representing Mr. Leland’s family it appeared that she had not told the truth about her activities preceding the accident. He told her that if she had made false statements, her coverage under her policy with State Farm had been jeopardized, and that if she changed her story, her coverage would be further jeopardized, but he recommended that she tell the truth. She then admitted that her previous accounts were false, that she had been drinking, and that she and Mrs. Alexander had conspired to give a false account in order to foreclose dram shop claims against Mrs. Alexander.

Although State Farm learned about the witnesses to Mrs. Ehrett’s heavy drinking early in March of 1968, it did not challenge her story at any time during the remainder of the year. In April and May of 1968 the adjuster attempted to take three additional statements from Mrs. Ehrett by telephone, but his recording equipment was not working properly. On October 28 and November 2 he interviewed her again and obtained two more statements from her. On none of these occasions did he tell Mrs. Ehrett that there were Allegedly six witnesses to her heavy drinking before the accident, as her attorney told her on December 19 when she recanted. Similarly, in a letter from State Farm’s claims superintendent to Mrs. Ehrett dated November 4, 1968, she was informed that State Farm reserved the right to deny coverage by reason of her not forwarding the summonses promptly and by reason of evidence of her giving false or conflicting information as to who was driving her car at the time of the accident, but no specific mention was made of her having possibly falsified her story of her activities prior to the accident. The claims superintendent explained at the trial that prior to December 19 there was nothing definite in State Farm’s file to indicate which of the two stories, that given by Mrs. Ehrett and Mrs. Alexander or that of the six witnesses, the correct.

The decision of the trial court in favor of Mrs. Ehrett and against State Farm was explained in a letter to the attorneys as follows: Mrs. Ehrett’s breaches of the co-operation clause in her policy were technical and inconsequential; there was no breach material to any liability defense which could properly have been presented by her insurer on her behalf; and even if the admittedly false statements were a material breach, State Farm’s failure to make a proper and diligent investigation of the facts concerning its insured’s whereabouts and drinking after having the question brought to its attention amounted to a waiver.

The burden of proof is on the insurance company if it seeks to establish breach of a co-operation clause. (Cuttone v. Peters, 67 Ill.App.2d 1, 4.) The question of co-operation involves not only the good faith of the insured but the good faith of the insurer as well. (Ray v. Johnson, 81 Ill.App.2d 456, 459; Gregory v. Highway Ins. Co. 24 Ill.App.2d 285, 298.) It is a question of fact, and the determination of the trial court will not be reversed unless manifestly against the weight of the evidence. (Gianinni v. Bluthart (App.Ct. 1971), 270 N.E.2d 480, 486.) We believe the evidence supports the determination of the trial court.

As stated in Allstate Ins. Co. v. Keller, 17 Ill.App.2d 44, 48, “It is generally conceded that the failure to co-operate must be material to the liability of the insured.” Misrepresentations without relevancy to the question of liability are not a breach of the co-operation clause. (8 Blashfield, Automobile Law & Practice § 342.13.) A technical or inconsequential lack of co-operation or misstatement to the insurer is immaterial. 7 Am.Jur. 2d, Automobile Insurance Secs. 176,178.

In this case the insured, Mrs. Ehrett, admitted that just before the accident she was looking down into her purse to find her cigarettes, and did not see the other car until the collision occurred; there were no eyewitnesses; the debris from the accident was in the lane of the oncoming car; and Mrs. Ehrett had amnesia following the accident and could not remember anything more regarding it. The trial judge evidently felt that if she had crossed the road and had driven headlong into the path of another car while she was looking down into her purse rather than out the front window, her earlier drinking had nothing to do with the question of her liability; her drinking might have contributed to her being so foolish as to be looking down rather than ahead, but the fact of her looking down was not in dispute; and her prevarication had no bearing on her usefulness as a witness if she had amnesia. We cannot say that the trial judge was manifestly in error in his conclusion that there was no failure to co-operate which could be material to liability but only an inconsequential lack of co-operation.

Furthermore, false statements seasonably corrected are not considered a breach of the co-operation clause. (Prudence Mut. Cas. Co. v. Dunn, 30 Ill.App.2d 469; 34 ALR2d 267.) State Farm had information within two weeks of the accident that six witnesses would contradict Mrs. Ehrett’s version of events preceding it. As soon as her attorney mentioned the six witnesses to her, she recanted and told the truth. State Farm could have accomplished this just as readily, it would seem, as her attorney, and just as soon as it chose to do so. It is evident from communications within the company that State Farm considered it to be likely that Mrs. Ehrett’s original story was false and the version of the six witnesses was correct, though it did not make a prompt and thorough investigation to be sure of this. Yet the six witnesses were not mentioned while any of the numerous statements were being taken from Mrs. Ehrett; and fabrication of a story regarding her activities prior to the accident was not spelled out in any papers submitted to her for signature or sent to her by mail. State Farm did not give any clear indication to Mrs. Ehrett that it regarded her fabrication as of any importance. The failure of an insurer to inform the insured promptly of its intention to deny liability, upon discovering facts indicating a breach of the co-operation clause by the insured, constitutes a waiver of the breach. (Krutsinger v. Illinois Cas. Co., 10 Ill.2d 518, 526; Madison County Mut. Automobile Ins. Co. v. Slecka, 29 Ill.App.2d 389, 394; Allstate Ins. Co. v. Keller, 17 Ill.App.2d 44, 50.) The facts here were soon knowable, if not known, with use of reasonable diligence. Furthermore, communications to the insured must be sufficiently clear. (Farmers Automobile Ins. Ass’n. v. Pursley (Ill.App. 1971), 267 N.E.2d 734, 737.) Therefore, if it were assumed that Mrs. Ehrett’s false account could amount to a material breach, there is support in the record for a finding that State Farm is estopped to maintain that her retraction was not timely, or that State Farm waived the defense of lack of co-operation. Accordingly we find no error in the trial court’s determination that the evidence showed a waiver.

The lower court did not comment on Mrs. Ehrett’s tardiness in passing on the summonses to State Farm. What is a reasonable time for this depends on the circumstances. (7 Am.Jur.2d, Auto Insurance Sec. 186.) The papers were turned over in time to avoid a default, and no harm resulted from the delay. We do not find State Farm to be released from its liability on this account.

Judgment affirmed.

ALLOY, P. J., and SCOTT, J., concur.


text:
    The People ex rel. Melvin L. Byrd, Petitioner-Appellant, v. John J. Twomey, Warden, Illinois State Penitentiary, Respondent-Appellee.
    (No. 71-192;
    Third District
    — January 5, 1972.

      Bruce Stratton, of Defender Project, of Ottawa, for appellant.
    Louis R. Bertani, States Attorney, of Joliet, for appellee.
   PER CURIAM:

This cause is before us on motion to withdraw filed by Bruce Stratton, District Defender of Illinois Defender Project, who was appointed as counsel for Melvin L. Byrd in the above cause. It appears from such motion that petitioner filed a pro se petition for Writ of Habeas Corpus which was dismissed for failure to allege facts entitling defendant to relief by the Circuit Court of Will County. Counsel on appeal asserts that after careful examination of the record in the case counsel has concluded that an appeal could not possibly be successful and would be wholly frivolous in this cause. Accordingly, we have examined the record in this cause, as well as the documents filed by counsel for appellant.

It appears that the defendant-appellant Melvin L. Byrd filed his pro se petition for Writ of Habeas Corpus which petition was dismissed on April 21, 1971, for failure to state any allegations upon which relief could be granted. The procedure was under the Habeas Corpus Act (111. Rev. Stat. 1969, ch. 65 par. 22.) Defendant in his petition indicated that he was in custody pursuant to the process of the court resulting from a conviction of voluntary manslaughter in Cook County.

The only allegation made by defendant was that his custody was “unlawful” based on the failure of the foreman of the Grand Jury to sign the indictment in accordance with section 111 — 3 of chapter 38 of Illinois Revised Statutes. Since the office of Habeas Corpus was to secure release of a prisoner detained by order of a court which is absolutely void by reason of lack of jurisdiction or of the person or subject matter or where something has happened since incarceration which would entitle defendant to his release (People ex rel. Lewis v. Frye, 42 Ill.2d 311), the petition filed by defendant-appellant was inadequate to justify action under the Habeas Corpus Act. Habeas Corpus does not lie to raise errors of a non-jurisdictional nature (People ex rel. Totten v. Frye, 39 Ill.2d 549.) As indicated by the Supreme Court of this State, dismissal of a pro se petition for Habeas Corpus was proper where the petition failed to suggest anything which would affect the court’s jurisdiction over defendant-appellant or contain any suggestion of subsequent events entitling defendant-appellant to release. People ex rel. Kalec v. Pate, 38 Ill.2d 350.

On the specific issue raised by defendant-appellant, the Illinois Supreme Court in People ex rel. Merrill v. Hazard, 361 Ill. 60, 63, 196 N.E. 827, 827, had occasion to consider the validity of an indictment which did not bear the signature of the foreman. The court indicated that the signature of the foreman is required only as a matter of direction to the clerk and for information of the court and that its presence or absence does not materially affect the substantial right of defendant, since it neither assures him nor prevents him from having a fair trial.

Defendant was properly indicted by the Grand Jury and the failure to have the foreman sign the indictment did not invalidate the indictment so as to deprive the court of jurisdiction to enter judgment. In view of the fact that defendant’s petition did not allege anything which would warrant the court’s issuance of the Writ of Habeas Corpus, a dismissal of such petition was proper.

Upon complete examination of the record, therefore, we find that the order of the Circuit Court of Will County should be affirmed and that there has been adequate compliance with Anders v. California, 386 U.S. 738. The judgment of tire Circuit Court of Will County is, therefore, affirmed.

We have previously entered an order in this cause authorizing withdrawal of counsel pursuant to the motion to withdraw.

Judgment affirmed.


author: Mr. PRESIDING JUSTICE TRAPP

text:
    The People of the State of Illinois, Plaintiff-Appellee v. Robert McWilliams, Defendant-Appellant.
    (No. 11400;
    Fourth District
    — January 11, 1972.

      Morton Zwick, Director of Defender Project, of Chicago, (John F. McNichoIs and Bruce L. Herr, of Defender Project, of counsel,) for appellant.
    Richard A. Hollis, State’s Attorney, of Springfield, for appellee.
   Mr. PRESIDING JUSTICE TRAPP

delivered the opinion of the court:

Defendant was convicted of burglary following a bench trial. Sentence of six to ten years was imposed. He appeals.

The evidence heard by the court consisted in the testimony of two arresting officers and the testimony of an owner of the restaurant concerned that the defendant did not have authority to enter the premises after the business was closed.

The police found the glass in the front door of a restaurant broken out shortly after 10:00 P.M., and apprehended defendant crouched or crawling on the floor. The owners had closed the restaurant at about 6:00 P.M. Under the circumstances no property in the restaurant was found to be missing.

Upon appeal, it is urged that defendant did not receive competent representation in numerous lesser aspects which combined amount to a deprivation of counsel. Measured in the light of the only facts shown by the record to be available to defense counsel, the arguments are without merit. Lengthy review of the asserted issues would produce little of interest to either the Bench or the Bar.

The indictment upon which defendant was first arraigned was dismissed upon the return of a subsequent and second indictment. It is urged, as evidence of want of competent counsel, that he failed to file a motion to dismiss such first indictment. Without now deciding the sufficiency of the allegation of the ownership of the restaurant in the first indictment, it appears that if, in fact, such allegations were insufficient, a conviction thereon would be void. (People v. Green, 368 Ill. 242, 13 N.E.2d 278.) Such circumstance does not suggest that counsel was incompetent in failing to file a motion to dismiss.

By reason of the fact that the judgment here for review follows a bench trial, it would avail little to discuss in detail that defendant’s prior plea of guilty was set aside upon the motion of the trial court as not being voluntary. In a hearing in aggravation and mitigation following such plea defendant testified that he was in the restaurant but not with intent to steal. He stated that he had found a broken glass and entered to find out whether any of the women proprietors had been injured. While making such investigation, the police entered to arrest him. Upon such testimony the court inquired concerning the validity of the plea and the defendant stated that he was in the premises, that he had a record of two felony convictions and that it would be hard to prove he didn’t do it. Defense counsel stated to the court that he doubted that defendant should be called as a witness by reason of such felony convictions, and that it was believed that a plea might minimize the sentence. The court vacated the plea on its own motion as not being voluntary.

Upon the bench trial before another judge, no evidence was introduced in behalf of the defendant. There is no suggestion of any available evidence that could be offered in behalf of defendant other than the testimony of the defendant. There was neither question of identity nor alibi. Defendant’s testimony was subject to impeachment and he was on parole at the time of this arrest. The contention that the owner might have been impeached by vigorous and searching cross-examination as to the time that she was called to the restaurant by the police does not impress.

The absence of facts available to counsel reduces to scant weight the argument that counsel failed to make motions at the close of the evidence, or for a new trial. There were no issues of fact and no rulings on evidence subject to challenge. No other matter to be shown by such motions is suggested. We cannot say that counsel is incompetent for acting with realistic recognition of the factors prevailing under the facts of the case and for avoiding a major production in the terms of mere ritual.

Defendant directs his argument to the contention that the sole evidence introduced by the prosecution at the hearing in aggravation and mitigation was a “rap sheet” which was prejudicial and erroneous. This position is shown to be incorrect in that there were, in fact, certified copies evidencing convictions for burglary and for robbery placed into evidence.

The “rap sheet” introduced and reported some seven other convictions for theft and property damage offenses with sentences imposed. Such evidence is admissible at a hearing in aggravation and mitigation, or for probation. (People v. Daugherty, 106 Ill.App.2d 250, 245 N.E.2d 7.) Here, as in Daugherty, there was ample admissible evidence of prior convictions, and it does not appear that the court considered inadmissible evidence in imposing sentence. It is thus distinguished from People v. Jackson, 95 Ill.App.2d 193, 238 N.E.2d 196, where it was apparent that the court there considered reports of arrest for which there were no convictions, and such evidence was clearly inadmissible.

It is urged that the sentence should be reduced under a rule that the minimum sentence should not exceed one-third of the maximum. Such standard is a guide rather than an absolute formula and the factual circumstances may authorize deviations from the guide. (People v. Scott, 106 Ill.App.2d 98, 253 N.E.2d 553.) In People v. Wright (Ill.App.2d), 267 N.E.2d 757, it was pointed out that the rigid formula suggested precludes consideration of background and criminal propensities of the defendant.

Defendant’s record discloses his substantial and persistent resistance to prior efforts at rehabilitation. The offense at hand was committed while on parole. His potential for rehabilitation had been tested by probation, as weU as by sentence and by parole. In Scott we concluded that the reviewing court should not employ its authority to reduce sentence as a substitute for the judgment of the trial court as to an appropriate penalty. The defendant must make a substantial showing of mitigating circumstances to justify the reduction of sentence on review. (People v. Nelson, 41 Ill.2d 364, 243 N.E.2d 225.) We are unable to discover such mitigating circumstances in this record.

The judgment is affirmed.

Judgment Affirmed.

SMITH and CRAVEN, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willard Ford, Defendant-Appellant.
    (No. 71-48;
    Fifth District
    — November 30, 1971.
    Melvin W. Trotier, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney, of BeUeviHe, for appeUee.
   PER CURIAM:

The defendant was charged by two indictments, one dated April 30, 1970, and the other dated May 8, 1970, with pandering, in violation of section 11 — 16(a) (2) of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 11 — 16(a) (2).) The defendant filed a motion to dismiss under section 114 — 1(a) (8) of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. 114 — 1(a) (8) ) for failure of each indictment to charge an offense within the meaning of Section 111-3(a) (3) of the Code of Criminal Procedure (Ill. Rev. Stat. 1967, ch. 38, par. Ill — 3(a) (3).) Both motions were denied and the defendant proceeded to trial on the second indictment. Midway through the trial the defendant entered a plea of guüty to both charges, and was given concurrent six-month sentences on each offense.

The only issue involved is whether or not each of the indictments charged the crime of pandering within the purport of section 111 — 3 of the Code of Criminal Procedure. This section states:

“A charge shall be in writing and allege commission of an offense: (1) by stating name of offense; (2) citing the statutory provision alleged to have been violated; (3) setting forth the nature and the elements of the offense charged; (4) stating the date and county of offense; (5) stating the name of the accused, if known.”

We are concerned with whether the requirements in part (3) of the above section has been met.

Section 11 — 16(a) of the Code of Criminal Procedure (111. Rev. Stat. 1967, eh. 38, par. 11 — 16(a) ) states:

“Any person who performs any of the following acts for money commits pandering; (1) compels a female to become a prostitute; or (2) arranges or offers to arrange a situation in which a female may practice prostitution.”

The indictment charges:

“That on the 30th day of April, 1970 in said county, Willard Ford, committed the offense of pandering in that he, for money, arranged or offered to arrange a situation in which a female might practice prostitution in violation of Paragraph 11 — 16(a) (2), Chapter 38.”

The general rule is that it is adequate to allege an offense in the language of the statute when the statute particularizes the offense sufficiently for defendant to know the precise offense of which he is accused, but where the statute does not describe the acts which constitute the crime or where by its generality it may embrace acts which the statute does not intend to punish, a charge solely in the language of the statute is insufficient, (People v. Billingsley, 67 Ill.App.2d 292, 213 N.E.2d 765, 768), and an offense must be charged with such clarity and particularity as to enable defendant to fully prepare for his defense and plead the judgment in bar of subsequent prosecution for the same offense. People v. Mowen, 109 Ill.App.2d 62, 248 N.E.2d 685, 688.

In People v. Mansfield, 181 Ill.App. 710, an indictment charging the defendant with pandering was held insufficient for faffing to designate the female person procured by the defendant. This indictment was based upon the old Illinois pandering statute, Section 57, ch. 38, Hurd’s Stat., 1911, but that statute is sufficiently similar to the one involved here to meet the same requirements. Both statutes specifically require that the defendant, in order to violate the statute, commit some act which is directed to, or against, a female. Therefore, when the female is known, her name must be included in the indictment as the reference to the female is an element of the offense.

The state relies on two cases involving violations of the Narcotics Drug Act. Chap. 38, Sec. 22 — 3, in which the Supreme Court held that it was unnecessary to name the buyer involved and that the indictment was sufficiently stated in the words of the statute. (People v. Allen, 263 N.E.2d 495; People v. Adams, 263 N.E.2d 490.) However, the court expressly stated concerning the statute involved: “The statute creating the offense makes no reference to the purchaser of the drug and his identity is not an element of the crime.” People v. Adams, supra. Chapter 38, Sec. 22 — 3, reads:

“It is unlawful for any person to manufacture, possess, have under his control, sell, prescribe, administer, dispense or compound any narcotic drag, except as authorized by this act. No person may unlawfully use narcotic drugs.”

It can readily be seen that this statute, unlike the statute in the instant case, does not make any reference to another person and therefore does not require the name of the buyer as an element of the offense.

In light of the foregoing, we find the indictments to be insufficient and the judgments are therefore reversed.

Judgments reversed.


text:
    Regina D. Cave, Plaintiff-Appellant, v. Charles D. Cave, Defendant-Appellee.
    (No. 71-208;
    Fifth District
    — November 30, 1971.

      Edgar Kelly, of East Alton, for appellant.
    Arthur L. Greenwood, of Alton, for appellee.
   PER CURIAM:

A decree of divorce was entered in the above entitled cause in favor of the plaintiff and against the defendant wherein the custody of the minor child of the parties namely, Michelle Rene Cave, was awarded to the plaintiff. The defendant filed a petition to modify the decree for divorce requesting that custody of the minor child be transferred from the plaintiff to the defendant. The Court allowed the defendant’s petition to modify and entered an order transferring custody from the plaintiff to the defendant.

The plaintiff’s theory is that the court abused its discretion in making modification, that the evidence did not support such change or modification and that the evidence failed to show any substantial change of circumstances or that it was in the best interest of the minor child to modify such custody provisions of the decree. Defendant contends the evidence supports the change or modification, that substantial changes of circumstances were shown, and that the evidence shows that it is to the best interests of the minor child that the custody provisions be modified. In addition defendant points out that where an appellant fails to comply with the orders of the reviewing court with reference to the filing of briefs within the accelerated time prescribed, under the circumstances here present, the reviewing court may either dismiss the appeal or enter an affirmance of the judgment sought to be reviewed.

Since the predominant question is whether the trial court abused its discretion in determining that the best interest of the child warranted the modification of the custody provisions we prefer to base our action on the report of proceedings.

A trial court is clothed with a wide discretion in child custody matters and a reviewing court is reluctant to interfere with its exercise of such latitude of choice, Carstens v. Carstens, 108 Ill.App. 439, 248 N.E.2d 135; Carbrey v. Carbrey, 108 Ill.App. 363, 247 N.E.2d 818, but such discretion is a judicial one and is not unlimited and is subject to review. (Shores v. Shores, 119 Ill.App.2d 85, 255 N.E.2d 214 Mikrut v. Mikrut, 113 Ill.App.2d 446, 251 N.E.2d 84.) Subsequent marriages are a factor to consider as a change in circumstances and it is not necessary for the court to find that the person having custody is an unfit person if other circumstances warrant modification. (Kline v. Kline, 57 Ill.App.2d 244, 205 N.E.2d 775.) Stability of environment is an important factor in determining the best interests and welfare of children, and removal to another state as a result of a modification of the decree, if it is in the best interest of the child, does not prohibit modification, (Spencer v. Spencer (Ill.App.), 270 N.E.2d 72), particularly where ample provision is made for visitation and compliance with the modified decree.

Our examination of the record discloses that there was substantial evidence that there was a change of condition since the initial decree and that the best interest of the child warrant a modification of the custody provisions; we are therefore unable to conclude that the trial judge abused his discretion in determining that the best interests of the child warranted the modification, and therefore affirm.

Judgment affirmed.


text:
    Securities Investment Company, Plaintiff-Appellee, v. Willie Bynum, Defendant-Appellee. — (Solmica, Inc., Defendant-Appellant.)
    (No. 70-97;
    Fifth District
    — December 2, 1971.

      Cohn, ICorein, Kunin and Brennan, of East St. Louis, (H. Carl Runge, Jr., of counsel,) for appellant.
    Meyer & Meyer, of Belleville, (Robert F. Kaucher, of counsel,) for appellee.
   PER CURIAM:

This is an appeal from a judgment rendered against both the maker and the endorser of notes given by a homeowner for home improvement work, and from a judgment rendered in favor of the homeowner on a counterclaim for defective work. The appellant is the payee-endorser of the notes who had performed the home improvement work and the appellee is the holder of the notes, the plaintiff below.

Defendant Solmica agreed to perform certain remodeling work on the home of defendant Bynum, in consideration for which Bynum executed two promissory notes, payable to the order of Solmica. Brazzell, one of Solmica’s agents, obtained a signed completion slip from Bynum through fraud before the work had in fact been completed. The notes, accompanied by the signed completion slip, were negotiated to plaintiff. They were endorsed “without recourse, except that endorser has furnished and installed all articles and materials and has fully completed all work which constitutes the consideration for which this note was executed.” It is undisputed that plaintiff took the notes as a holder in due course.

Solmica’s performance being incomplete and unsatisfactory, Bynum withheld all payment from both Solmica and plaintiff. Plaintiff brought an action against both defendants for payment of the notes in the amount of their face value, $6,900, plus interest and attorneys’ fees. Defendant Bynum cross-claimed, arguing partial failure of consideration by Solmica. Evidence of the partial failure of consideration was substantial, but absent from the record is any appraisal of the amount by which the consideration failed. Judgment was entered for plaintiff and against both defendants in the amount of $4,465 which represented the consideration paid by plaintiff for the notes, plus $2,245 in interest and attorneys’ fees. In addition, Bynum was awarded a set-off against Solmica in the amount of $2,995 plus costs of the action.

Defendant Solmica’s appeal charges that plaintiff’s award was erroneously in excess of the contract price, and that the amount of the set-off was not proved and has no basis on the record.

Defendant erroneously assumes that plaintiff’s judgment was based on the underlying remodeling contract. Plaintiff’s award was based on the negotiable notes. Defendant, having breached its express warranty to plaintiff that its performance of the remodeling contract was complete and adequate, should be liable to the plaintiff for at least the amount of consideration paid by plaintiff in reliance on that warranty, plus interest and costs. This being the amount of plaintiff’s award, defendant cannot argue that it was excessive.

We must agree with defendant that the amount of set-off is unproved and has an insufficient basis in the record. Although there is substantial and uncontradicted evidence that Solmica’s performance fell far short of being adequate and complete, the amount of damages must be proved with a reasonable certainty. Meyer v. Buckman (1955), 7 Ill.App.2d 385, 129 N.E.2d 603; Chicago Coliseum Club v. Dempsey (1932), 265 Ill.App. 542.

Affirmed as to plaintiff’s judgment and the determination of liability on the cross-claim. Remanded for a hearing on amount of damages on the cross-claim.

Affirmed and remanded.


text:
    Arthur J. Gremaud, Plaintiff-Appellant, v. Granite City Steel Company et al., Defendants-Appellees.
    (No. 69-110;
    Fifth District
    — December 3, 1971.

      Vuagniaux & Metzger, of Edwardsville, (Earl L. Vuagniaux, of counsel,) for appellant.
    Bryan, Cave, McPheeters & McRoberts, and Levin and Weinhaus, of St. Louis, Missouri, Lueders, Robertson & Konzen, of Granite City, and Cohn, Korein, Kunin and Brennan, of E. St. Louis, for appellees.
   PER CURIAM:

This action is one arising under Federal labor law which requires I that individual employees wishing to assert contract grievances must use the procedure for adjustment of differences which has been agreed upon by the employer and the union as the established mode of redress. Although we are concerned with the interpretation of a labor contract all parties agree that the State Court is in the proper exercise of its jurisdiction in determining the dispute. See Horkstrom v. Stonefort Coal Mining Co., Inc., 106 Ill.App.2d 376, 246 N.E.2d 128.

Plaintiff brought his action against Granite City Steel Company, a corporation, the employer, William Baldas are, a co-employee, and United Steelworkers of America, the collective bargaining agent for both plaintiff and defendant Baldasare. The action concerns a dispute over seniority rights in the burning unit of the machine shop department of defendant company. Section 13 of the collective bargaining agreement entered into by the defendant union and defendant company provides the mode for adjustment of differences between the company and the union or its members and provides, in part, “No grievance will be considered unless it is taken up promptly through the regular procedure as outlined in this section * * Section 13 of the collective bargaining agreement details a five-step procedure for the processing of grievances. Step 1 provides for direct settlement by the employees and the company, steps 2, 3 and 4 involve settlement by joint committees representing the company and various union jurisdictions and step 5 provides for binding arbitration. It is plaintiff’s contention that he was improperly and illegally deprived of his seniority in the machine shop department and that the defendant union, his representative in the grievance procedure provided in the collective bargaining agreement, was guilty of fraud and bad faith in its representation of plaintiff in the grievance procedure.

Defendant Baldasare was first employed by the company in 1933 and started working in the machine shop in 1947. He was first employed as a burner in 1942 and 1943 and at that time had a millwright job classification which he continued to hold until his retirement, which occurred during the pendency of this lawsuit. Baldasare began thermit welding on November 20,1947, a job that required that he continue to do burning. Burning has always been part of the thermit layout job and when a man is preparing a thermit welding job there is always a certain amount of burning to do. The thermit layout section was located in the same place as the burner unit — side by side in the machine shop.

The plaintiff began working at defendant company in 1948. On February 9,1949 he became a “starting burneif and was promoted to “regular burner” in August 1949.

Although Baldasare was a thermit welder and burner, he was given a millwright rating because of his ability to handle a number of different jobs and from 1947 on Baldasare carried his departmental seniority in the machine shop department until late in 1956 when the millwrights formed their own department.

Baldasare continued to cany his seniority in the burner unit and when the millwright department was transferred from the machine shop he did not change his unit seniority. Because Baldasare wanted to protect his departmental seniority as a millwright, even though retaining his burner unit seniority in the machine shop, company and union representatives negotiated and entered into a “Promotional Line Agreement” dated February 25, 1957. The company representative who negotiated and signed the Promotional Line Agreement with the Union Joint Committee was superintendent of the machine shop at the time. He explained that the reason for negotiating the agreement was that when the millwrights separated themselves from the machine shop and formed their own department, inasmuch as the burner unit was in the machine shop department and Baldasare’s departmental seniority was in the millwright department, the parties recognized and agreed that Baldasare’s seniority in the burner unit had to be protected so that he would continue to be the oldest man in the burner unit. Although defendant disputes the interpretation of the effect of the Promotion Line Agreement it nevertheless sufficiently appears that it was made to permit defendant Baldasare to maintain his seniority in the millwright department and also as the senior burner in the machine shop department. The burning had apparently been done historically by Baldasare and upon the separation of the millwright department from the machine shop department Baldasare, the burner, went with the burning job in the transfer of the burning job to the machine shop department. Baldasare had no seniority rights in the machine shop department than as a burner. Plaintiff, except as a burner, was the senior employee in the machine shop department. Baldasare always exercised his unit seniority rights over plaintiff on choice of work schedules and vacations.

The company laid off plaintiff in the work week scheduled for June 10,1962. On June 7,1962, he filed his grievance claiming that performance of the burning work by Baldasare would violate plaintiff’s seniority since he had higher seniority over Baldasare in the machine shop. The grievance was determined against plaintiff by the company and shortly thereafter the Union Joint Committee withdrew the grievance. Thereafter, on September 26, 1962, plaintiff filed another grievance identical to that filed in June, the latter grievance being prosecuted by plaintiff personally rather than through the Union Joint Committee. This grievance was determined against plaintiff at step 3 and was not processed beyond that step by either the Union Joint Committee or plaintiff. Plaintiff did, however, express dissatisfaction and retained counsel to protest the disposition and pursue the matter further. In due time plaintiff was called back to work and nothing further was done with regard to the 1962 grievances.

On April 1, 1967, plaintiff was again laid off for lack of work and Baldasare was retained to do the burning work. On April 13, 1967, plaiiitiff filed his Grievance No. 124-67-4, which was the same complaint made in 1962 and rejected. He alleged, in essence, that he had seniority over Baldasare in the burner unit of the machine shop; that beginning April 1, 1967, Baldasare was performing all the burning work; that he had seniority over Baldasare in the burner unit, and that his seniority rights were being violated. It was the position of both the company and the Union Joint Committee that the matter of burner seniority had been disposed of in the 1962 grievance and that nothing had intervened to change their position with regard thereto. The Union Joint Committee declined to request that the matter proceed further. The plaintiff, through his counsel, requested that the matter proceed to arbitration provided for as step 5 of tihe grievance procedure but both the company and the union declined and the instant court action followed.

The record establishes that the union accepted plaintiffs grievance, considered and reviewed it, processed it, had the issue of the “Promotional Line Agreement” analyzed by their representatives, reached agreement with the employer at step 3 of the grievance procedure, and at that point took the position that the matter was concluded. The Supreme Court of the United States in Humphrey v. Moore, 375 U.S. 335, 84 S.Ct. 363, 55 L.R.R.M. 2031, observed that “* * * a union must be free to sift wholly frivolous grievances which would only clog the grievance process * * *.’’ The trial court in the instant case explained its decision in part by stating, “If an employee would process his own grievance regardless of the settlement reached by the Union and the Company, there would seldom be a settlement in the early steps of the grievance procedure and the Union’s efforts to settle would carry little weight.” Add to these two pronouncements, Congress’ description of the National Labor Relations Act as “An Act to dimmish the causes of labor disputes * * (29 U.S.C. ch. 7, sec. 151, et seq.) and it is clear that in the absence of fraud, gross neglect, or unfair collusion between the employer and the union — in short “bad faith” representation by the union — the settlement reached is binding on plaintiff and should not be disturbed by this court. Since at the conclusion of consideration of plaintiff’s grievance between company and the Union Joint Committee plaintiffs grievance was found without merit and the seniority rights of Baldas are were paramount, it is understandable that plaintiff would be dissatisfied and feel himself the object of discrimination, fraud and unfair treatment. Yet at that point in the proceedings when the Union Joint Committee determined that plaintiff s grievance was without merit it became their right, and under section 13 of the collective bargaining agreement, even their duty, to cease further representation of plaintiff in presenting his grievance. We find nothing in the record to show anything other than that fair consideration and treatment was accorded plaintiff’s grievance by the Union Joint Committee. That he ultimately did not prevail cannot be construed as a showing that the union was guilty of fraud, gross neglect, or unfair collusion with the company in disposing of his grievance. The record in this case is bare of any evidence of bad faith or breach of duty for fair representation. As stated by the Supreme Court in Vaca v. Sipes, 386 U.S. 171:

“A breach of the statutory duty of fair representation occurs only when a union’s conduct toward a member of the collective bargaining agreement is arbitrary, discriminatory, or in bad faith.”

Also see Horkstrom v. Stonefort Coal Mining Co., Inc., supra.

This was a dispute over the interpretation and application of the seniority provisions of the contract between the Steelworkers Union and Granite City Steel Company. Patently, the contract, which devotes 48 pages to the subject of grievances, is intended to cover any disputes regarding seniority. Bieski v. Eastern Automobile Forwarding Co. (3rd cir., 1968), 396 F.2d 32, was a case involving seniority rights of different groups of employees, where, as here, a decision was made by a joint grievance committee pursuant to the contract, and there the court held:

“If * * * the contract procedure was intended to cover the dispute and, in addition * * * the intended procedure was adequate to provide a fair and informed decision, then review of the merits of any decision should be limited to cases of fraud, deceit or instances of unions in breach of their duty of fair representation.”

This court accepts and follows the logic, reasoning and interpretation of the law expressed in the above cited cases and finds no exception in the instant case. The plaintiff raises and argues other issues but we have determined them to be without merit and no purpose would be served by a further discussion of them here.

Accordingly, the judgment appealed from is affirmed.

Judgment affirmed.


author: Mr. PRESIDING JUSTICE EBERSPACHER

text:
    Nicholas H. Schuline et al., Plaintiffs-Appellants, v. Albert Pelzer et al., Defendants-Appellees.
    (No. 70-47;
    Fifth District
    — December 3, 1971.

      Rehearing denied January 1, 1972.

      Dixon & McDonnell, of Belleville, for appellants.
    Brady, Donovan & Hatch, of Belleville, for appellees.
   Mr. PRESIDING JUSTICE EBERSPACHER

delivered tire opinion of the court:

This is an action for reformation of two deeds to a parcel of real estate located in the Village of Swansea, Illinois. The parcel in question is a 20 foot strip of land which was originally the north 20 feet of Lot 6 in the Schuline Place Subdivision.

The subdivision was originally laid out by Henry Schuline who died on May 24, 1955. Prior to 1951, Henry Schuline had conveyed to his son, Nicholas Schuline and wife, Eleanor, Lot 5 which adjoins Lot 6 on the north. In 1951 Henry conveyed to them ihe 20 foot strip in question, which deed was duly recorded November 26, 1951.

Upon his death, Henry’s will was probated with Nicholas as executor. The beneficiaries under the will were Nicholas and his two sisters, Velma Keim and Alvina Lanter. Lot 6 was appraised for the estate at $500 by Mr. Rheim, an experienced appraiser. A sketch made by Mr. Rheim in connection with the appraisal showed the twenty foot strip to be outside the boundaries of Lot 6. Pursuant to the appraisal, Nicholas conveyed his interest in Lot 6 to his sisters for one-third of its appraised value. A quit claim deed was drafted by Nicholas’ attorney (who was serving as attorney for the executor) and Nicholas and his wife signed the deed which was recorded January 11, 1957. The deed conveyed the 20 foot strip by failing to except it from the conveyance.

In March, 1957, Albert and Lucy Pelzer, in response to a newspaper ad, inquired of Mrs. Keim about purchasing Lot 6. After inspecting the property, the Pelzers agreed to buy and did so. The Pelzers took a deed from the Keims and the Lanters which deed also conveyed the 20 foot strip by fading to exclude. Mr. Pelzer had the property surveyed in 1967, and at this point he learned that his deed conveyed to him 20 more feet than he had originally thought.

At trial testimony was presented (and objected to) regarding the intention of Henry’s heirs regarding the first deed. The testimony is consistent that all parties had intended to not convey the 20 foot strip to Keim and Lanter. The attorney who drafted the deed also testified that he assumed the 20 foot strip was contained within one of the other exceptions to the deed and that it was everybody’s intention to not convey Nicholas’ 20 foot strip. This error was perpetuated in the second deed conveying the property to the Pelzers.

The testimony showed that the Pelzers were unaware that the 20 foot strip had been conveyed to them until they had the property surveyed. The strip was used during this time by the Schulines and maintained by them and for all purposes as between the Schulines and the Pelzers the property was treated as belonging to the Schulines.

The trial court sitting without a jury denied plaintiffs’ requested reformation relief, and entered judgment for defendants from which this appeal is taken.

Plaintiffs seek a reformation of the two deeds based on a mistake of fact which was common to all parties to the deed. Defendant raises the defense that the testimony of the parties to the deed is inadmissible because of the parol evidence rule. Defendant also raises the defense of adverse possession under the seven year color of title statute, Ill. Rev. Stat., ch. 83, par. 7.

It is clear that the parol evidence rule does not exclude evidence of a mutual mistake of fact. As stated in 45 Am. Jur., Reformation of Instruments par. 133, p. 650:

“It is practically a universal rule that in suits to reform written instruments on the ground of fraud or mutual mistake, parol evidence is admissible to establish the fact of fraud or of a mistake and in what it consisted, and to show how the writing should be corrected in order to conform to the agreement or intention which the parties actually made or had, and this, even though the instrument in question is within the statute of frauds.”

The law in Illinois is to the same effect as shown by the case of Koch v. Streuter (1905), 218 Ill. 546, 75 N.E. 1049 wherein the court stated at page 556:

“We have held that, to justify the reformation of a written instrument upon the ground of mistake, three things are necessary: First, that the mistake should be one of fact, and not of law; second, that the mistake should be proved by clear and convincing evidence; and third, that the mistake should be mutual, and common to both parties to the instrument * * *. In Kelly v. Trumble, 74 Ill. 428, this court said: ‘Where mistake in the execution of an instrument is charged, parol evidence may be resorted to for the purpose of proving what was the real contract of the parties, and a court of equity may reform a contract according to the evidence of the intention of the parties * *

Thus, evidence of a mutual mistake of fact is not excluded by the parol evidence rule and as between Nicholas and his sisters we feel the evidence is clear, convincing and uncontradicted, that there was a mistake in the description in the deed and that the mistake was a surveyor’s error and the intention was not to convey the 20 foot strip. See also Blumenfeld v. Neuman (1953), 350 Ill.App. 306, 122 N.E.2d 742.

The next question is the effect of the subsequent sale to the Pelzers. It is clear that there is no action for reformation against a bona fide purchaser for value without notice of facts sufficient to put him on inquiry. Harms v. Corzell, 177 Ill. 496, 53 N.E. 877. However,

“Equity will reform a deed against a subsequent purchaser unless he is an innocent purchaser without notice of the mistake. The rule does not require that he have actual notice. If he has knowledge of such facts as ought to put a prudent man on inquiry as to the title, he is chargeable with notice of all facts to which diligent inquiry and investigation would have led him. Skelly v. Ersch, 305 Ill. 126, 131, 137 N.E. 106, 108 (1922).”

The Skelly case (supra) is similar on the facts to the case at bar. There plaintiffs executed and delivered a deed to their grantee, who in turn conveyed. The description included 13 acres not intended to be conveyed. Plaintiffs remained in possession of the 13 acres, which possession was never disputed. Hie subsequent purchasers were told they were buying 12 acres and that is what they took possession of, despite the fact the description in the deed conveyed 25 acres. In addition, they knew plaintiffs were in possession of the 13 acres and raising crops on the same. The court held this to be sufficient notice to put them on inquiry. See also the cases of Korosic v. Pearson (1941), 377 Ill. 413 and Pearce v. Osterman (1931), 343 Ill. 175.

The facts of the case at bar show that Pelzer did not discover that his deed conveyed the 20 foot strip until ten years after he purchased. He and his wife both stated at trial that they did not think they were acquiring the strip at the time they bought. Pelzers never used the strip and Schulines did use the strip for all of those years.

Equity requires the reformation of the deeds in this case.

As to Pelzers last argument regarding the seven year adverse possession statute, we find it inapplicable. The statute (Ill. Rev. Stat., ch. 83, par. 7) provides in pertinent part as follows:

“Whenever a person having color of title, made in good faith, to vacant and unoccupied land, shall pay all taxes legally assessed thereon for seven successive years, he or she shall be deemed and adjudged to be the legal owner of said vacant and unoccupied land, to the extent and according to the purport of his or her paper title.” (Emphasis added.)

The strip was not “vacant and unoccupied”. Schulines maintained the strip, mowed it, planted trees and shrubs on it and their son used it for football with his friends. The fact that there was no construction on the strip is not important. Dominion over the strip was exercised by the Schulines in a manner consistent with the character of the land. Their acts were such as to indicate to all that they exercised control over it. The Pelzers did not engage in such acts. The Chicago Title and Trust Co. v. Darley (1936), 363 Ill. 197.

We therefore reverse the judgment and remand for further proceedings not inconsistent herewith.

Reversed and remanded.

MORAN and JONES, JJ., concur.