text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ike Taylor, Jr. (Impleaded), Defendant-Appellant.
    (Nos. 59249, 59839 cons.;
    First District (2nd Division)
    December 24, 1974.

      Patrick A. Tuite, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendant Ike Taylor and two codefendants were charged with three counts of aggravated battery and one count of the attempt murder of Albert Harris. Defendant Taylor and one codefendant, Ronald Lawson, chose to be tried by the court while their codefendant, Henry Hearan, took a simultaneous jury trial. After defendant Taylor and Lawson had rested their cases, but before Hearan had rested his case, the trial court acquitted Lawson of all charges, but found Taylor guilty of all charges. The jury continued to hear evidence and then found Hearan guilty of all charges. Defendant Taylor was sentenced to 10 to 20 years for attempt murder, 8 to 10 year's on one of the aggravated battery charges, and 3 to 5 years on another of the aggravated battery charges, all sentences to run concurrently. Defendant Taylor separately appeals.

On appeal defendant contends that he was not proven guilty beyond a reasonable doubt as evidenced by the trial court’s acquittal of his co-defendant, Lawson; that tire trial court erred in finding him guilty after he had rested, but before his codefendant, Hearan, had rested; that he was improperly sentenced on the aggravated battery charges; and that the sentences imposed were excessive.

Defendant’s contentions that the inconsistent verdicts as to Lawson and himself evidence a reasonable doubt as to his guilt, and that the trial court erred in finding him guilty before codefendant Hearan had rested, necessitate a summary of the testimony adduced at trial and the order of that testimony.

Albert Harris testified that on the date he was attacked he was 16 years old, and at approximately 9 P.M., he left his home and began walking to a friend’s house. While less than one block from his home, he heard something click, turned, and saw defendant Taylor with a pistol in his hand. Taylor said, “It ain’t nothing but a Gangster thing.” On hearing another sound, Harris turned to see another individual behind him in a doorway holding a shotgun. Harris turned back to Taylor and noticed that now Henry Hearan, holding a pistol, was on one side of Taylor and that Ronald Lawson, holding a shotgun, was on Taylor’s other side. Taylor told Harris, “You’re busted,” and then shot Harris in the throat from a distance of 10 to 15 feet. The individual in the doorway behind Harris then fired his shotgun, hitting Harris in the right side. A fifth individual then twice fired a 12-gauge shotgun at Harris, the second time hitting him in the face. As Harris was falling, he turned back to Taylor, Hearan, and Lawson, and saw fire coming from the guns of all three. As Harris was attempting to crawl away, a sixth individual emerged and fired' a 12-gauge shotgun into him. Harris was finally able to drag himself under a car, and, as pellets continued to hit the car, to cry for his mother. Harris then heard his mother screaming, ‘Where are you?” and heard defendant Taylor say, “His mother is coming, let’s get out of here.” After his mother arrived, Harris told her, “Mama, get Ike, get Ike, Ike shot me, Ike shot me.” Harris testified that he had known Ike Taylor for 3 or 4 years, that he had known Henry Hearan since sixth grade, but that he had only seen Ronald Lawson a few times in the last 2 years. Harris further testified that as a result of the shooting he was blinded, had difficulty talking, had lost six teeth, and had numerous scars on his body.

Clementine White, the mother of Albert Harris, also testified for the State. Shortly after Albert left home at 9 P.M., Mrs. White heard “a lot of guns going off.” Upon going to her window, she heard a voice, which she recognized as that of her son, crying, “Help, help me, mama, help me.” As Mrs. White raced out of her house, she saw Taylor and Hearan, with something short and black in their hands, standing next to where she later found her son lying. She heard Taylor say, “Let’s go, here comes his mother.” Although she saw other persons running away, she was not able to identify them. Although Mrs. White testified that after the shooting her son told her to get Taylor and Hearan, he never said to get Lawson. The State then rested.

Robert McGaha, a Chicago police officer, testified on behalf of Ronald Lawson. Two days following the shooting, he talked to Albert’s mother after being informed that Albert was unable to answer any questions. Mrs. White told Officer McGaha that her son had said Ike Taylor was one of the individuals who had shot him. Mrs. White also informed him that she had seen Ike Taylor and Henry Hearan running from the scene of the shooting. McGaha also testified that Mrs. White told him that her son stated that Ronald Lawson was involved in the shooting. However, this last reference to Ronald Lawson was not contained in his police report; indeed, Ronald Lawson was never even mentioned in that report. He further testified that, although he arrested Taylor and Hearan, he made no more than routine attempts to arrest Lawson and never informed any other police officers of his knowledge concerning Lawson. In fact, he did not know if Lawson was ever arrested in this case.

Rosie Mae Sweezer, Henry Hearan’s mother, testified on his behalf. Hearan was at home with her from 2 P.M. on the afternoon of the shooting until 12:30 A.M. the next morning. Louise Hubbard, Henry’s girlfriend, had arrived at the Hearan house at about 5 or 6 that evening. Henry, Louise, and the rest of the Hearan children played cards that evening. At 10:30, the whole family was watching a television show on Channel 32 with Sammy Davis Jr. and Louis Armstrong.

Annie Coleman, Henry’s aunt, also testified on his behalf. She lived with the Hearan family and from about 2 P.M. until 10 P.M. on the day of the shooting, she and Henry were together most of the time. The longest time Henry was out of her sight that afternoon and evening was 5 or 10 minutes. Although she could remember that Henry was home that day, she could not remember where her husband was.

At this point, Hearan’s counsel informed the court that two additional important witnesses in Hearan’s defense were presently unavailable and asked for a continuance in order to present their testimony to the jury. Although the State called such a request dilatory and unwarranted, defendant Taylor’s counsel, who was present, neither made any objection to nor joined in the motion for a continuance, but instead remained silent. The court then granted a 2-day continuance and released the jury, directing them however to return in 2 days to hear the balance of Hearan’s case. The court then informed counsel that it would proceed with the bench trials of Taylor and Lawson. Again, Taylor’s counsel raised no objection.

Clinton Lee was then called as a witness on behalf of defendant Ike Taylor. Mr. Lee was the bartender at the VanKeeler Lounge on the day of the shooting and stated that Taylor was at the bar from approximately 6:45 P.M. until 11:30 P.M. Although Mr. Lee had a vivid recollection of that night and recalled that only two people were sitting at the bar that night, he could not remember the name of the regular patron that was there with Taylor. Defendant Taylor then rested his case.

Thomas Murphy, a Chicago police officer, testified on behalf of Ronald Lawson. Officer Murphy talked to Albert Harris at the hospital the night of the shooting. Although the victim’s language was hardly understandable, he testified that Harris told him that Taylor and Lawson were involved in the shooting. However, Officer Murphy admitted that his police report did not state that Lawson was involved, but merely that Lawson had been there at the scene. Moreover, Officer Murphy testified that to his knowledge there were no police reports indicating that an individual named Lawson was being sought for the shooting.

Ronald Lawson testified in his own behalf. He denied being involved in the shooting, being present at the shooting, or knowing who was involved in the shooting. Moreover, he was never arrested in this case, but voluntarily appeared in court in response to a letter from the State’s Attorney’s office. Lawson then rested his case.

After the State offered nothing in rebuttal, the court heard closing arguments for the State, Taylor, and Lawson. Without any objection by either defendant, the court then made its findings: Lawson was acquitted; Taylor was found guilty as charged.

Two days later, the court reconvened, with the jury, to hear the remaining witnesses for Hearan.

Willie Lloyd, a cab driver, testified for Hearan. He was in the area of the shooting that night and saw one person being chased and shot at by another person. Although Mr. Lloyd positively stated that the person who was doing the shooting was not Henry Hearan, he could not say that Albert Harris was the person he saw shot at, although he knew Harris. He did not see any one else with a gun that night.

Louise Hubbard also testified for Hearan. She arrived at Hearan’s house around 6 P.M. and stayed until approximately 1 A.M. She played cards with Henry, Henry’s mother, and others. She and Henry also watched a television show of Sammy Davis, Count Rasie, and Eartha Kitt. During the entire evening, Henry was never out of her sight more than 10 or 15 minutes.

Henry Hearan testified in his own behalf. He denied any participation in the shooting of Albert Harris. He was at home the night of the shooting with his family and Louise Hubbard. He played cards that night, but Louise Hubbard was wrong if she testified that his mother played cards with them. He also watched the same television show that was testified to earlier.

In rebuttal, Manuel Fingerhut, the controller for Channel 32 television, testified for the State. The night of the shooting, his station did not air any program containing Sammy Davis, Jr., Eartiha Kitt, or Count Basie. He further testified that he checked the' T.V. Guide for the night of the shooting and it disclosed no television shows involving Sammy Davis, Jr., scheduled for that evening anywhere in the Chicago area.

Defendant first contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt because the trial judge found his codefendant, Lawson, not guilty. The defendants argument is premised on the assumption that the evidence against both defendants was identical in all respects. For it is well settled that when one defendant is found guilty and a codefendant found not guilty on evidence identical in all respects as to both defendants, the guilty finding will not be allowed to stand. (People v. Griffin, 88 Ill.App.2d 28, 232 N.E.2d 216.) However, it is equally well settled that when there is the slightest difference in the evidence as between two persons jointly tried, the trier of fact may weigh the evidence and make allowance for such difference. (People v. Jones, 132 Ill.App.2d 623, 270 N.E.2d 288.) If there is any difference in the evidence, the mere fact that one defendant was convicted and one defendant acquitted does not raise a reasonable doubt as to the guilt of the convicted defendant. In such cases the acquittal of one defendant is not a ground for reversal of the conviction of the other. See People v. Stock, 56 Ill.2d 461, 309 N.E.2d 19.

In arguing that the evidence was identical in all respects, defendant Taylor emphasizes the identification testimony of the victim, Albert Harris. However, such a characterization overlooks both the circumstances under which Harris viewed the two defendants and the statements made by Harris after the shooting. Moreover, such a characterization' completely ignores the testimony of Clementine White, Harris’ mother.

Harris had a much better opportunity to view and identify defendant Taylor than codefendant Lawson. Harris had known Taylor for several years, but had only seen Lawson a couple of times in the last 2 years. Taylor was also the first assailant Harris saw. Moreover, Taylor was alone when he first confronted Harris. Lawson appeared only later, and then only as one of a group of three assailants. More importantly, Taylor was the only assailant to speak to Harris. Taylor not only informed Harris that this was a “Gangster” thing, but he warned Harris that he was “busted.” Finally, Taylor was the first assailant to fire at Harris. This substantial difference in the victim’s opportunity to view and identify the two defendants provided the trial judge with a reasonable basis on which to differentiate between the two defendants. People v. Hill, 14 Ill.App.3d 368, 373, 302 N.E.2d 403.

However, Harris’ greater opportunity to identify Taylor is not the only difference in the evidence presented against Taylor and Lawson. Immediately after the shooting, Harris told his mother to “get Ike, Ike shot me.” At this crucial moment, when the attack was fresh in Harris’ mind, he accused Taylor, not Lawson. This selective accusation against Taylor but not Lawson was corroborated by Mrs. White. An accusation immediately after the crime against one defendant, but not another, is a sufficient difference in the evidence to convict one defendant, but not the second. (People v. Fort, 133 Ill.App.2d 473, 479, 273 N.E.2d 439.) This difference is present in the case at bar.

The final difference in the evidence presented against Lawson and Taylor was the testimony of Mrs. White. After hearing gun shots and her son’s cries for help, Mrs. White raced down to the street. When she arrived she heard Taylor say, “Let’s go, here comes his mother.” Mrs. White was also able to observe Taylor standing near the scene of the shooting with something short and black in his hands. While Mrs. White was thus able to independently place Taylor at the scene of the crime, she was not able to do so in regard to Lawson. Independent testimony establishing the presence of one defendant at the scene of a crime but not the presence of a codefendant is again sufficient evidence to convict one defendant, but not the other. (People v. Dixon, 18 Ill.App.3d 470, 472, 309 N.E.2d 605.) In the instant case, defendant Taylor was seen and heard at the scene of the shooting by Mrs. White; Lawson was not.

For the foregoing reasons we find that there was a sufficient difference in the evidence presented for the trial court to find defendant Taylor guilty beyond a reasonable doubt. The acquittal of codefendant Lawson does not vitiate that result.

Defendant next argues that tihe trial court erred in finding him guilty after he had rested his case but before codefendant Hearan had rested his case. Defendant contends that the additional witnesses called by Hearan to controvert Hearan’s identification by Harris might possibly have cast doubt on his own identification by Harris. If, because of the additional alibi witnesses, the trial judge could have found Harris mistaken as to his identification of Hearan, he could also have found Harris mistaken as to his identification of defendant. However, such an argument is not supported by the record.

Defendant Taylor and his two codefendants were jointly tried, Hearan by a jury, and Taylor and Lawson, who had waived their right to a jury trial, by the court. After Hearan had presented two witnesses in his defense, Hearan’s counsel informed the court that two important defense witnesses were presently unavailable, and asked the court for a 2-day continuance in order to bring them to court. Although the State objected to such a request, Taylor’s counsel neither objected to the continuance, nor joined in the request for the continuance. While in the process of granting the continuance, the court indicated that it would proceed with the cases of Taylor and Lawson. Again, Taylor’s counsel remained silent.

After a short recess, the court inquired whether Taylor’s counsel was ready to proceed and call his witnesses. Counsel answered ready and then called Clinton Lee. After Lawson also had presented his witnesses, both sides rested and final arguments were made by all parties. After hearing final arguments, the court entered a finding of guilty as to Taylor and not guilty as to Lawson. At no time did Taylor’s counsel object or raise any question as to the propriety of the court’s procedure. Two days later, after Hearan had presented his final witnesses, the jury found Hearan also guilty.

Defendant Taylor now claims that he was somehow prejudiced by the court’s procedure. He argues that Hearan’s additional witnesses, although they failed to persuade the jury that Harris was mistaken in his identification of Hearan, may have persuaded the trial judge that Harris was mistaken in his identification of both Hearan and Taylor. However, such speculation is not supported by the record. It can not be denied that, despite the additional witnesses, the jury found Hearan guilty. Moreover, on oral argument, Taylor’s counsel conceded that the additional witnesses were substantially impeached. How Taylor could have benefited, had the trial judge considered the testimony of Hearan s witnesses, has not and can not be explained. In the instant case, defendant Taylor was positively identified by Albert Harris. Mrs. White’s testimony not only independently placed Taylor at the scene of the shooting but corroborated her son’s testimony in many important respects. Thus, the admittedly unconvincing testimony by Hearan’s witnesses could not possibly have altered the trial court’s finding of guilty.

Defendant relies primarily on People v. Bradley, 30 Ill.2d 597, 198 N.E.2d 809. However such reliance is misplaced. In Bradley, two co-defendants were jointly tried, Bradley by a jury and Smith by the court. There, the jury heard the State’s evidence against both Bradley and Smith. However, after Bradley had closed his case, the court severed the two cases and thus, the jury never did hear the defense presented by Smith. Although the court found Smith not guilty, the jury, not having heard Smith’s defense, found Bradley guilty. On appeal, Bradley argued that the cases were improperly severed, and that, as a result of that severance, the jury did not hear the apparently crucial defense evidence that resulted in Smith’s acquittal. The reviewing court agreed, and reversed and remanded while stating:

“We can not say what would have been the verdict of the jury if they had been permitted to hear the evidence that satisfied the trial judge that [the complainant’s] identification of Smith * * * was erroneous.” (30 Ill.2d at 601.)

However, such a conclusion would be totally unwarranted in the instant case. In Bradley the evidence that was not presented to the jury resulted in the court’s acquittal of Smith; in the present case, the evidence not presented to the jury until after the court’s finding of guilt as to Taylor did not alter tire result, but similarly resulted in a finding of guilty as to Hearan. In Bradley the State’s case depended on the identification testimony of a single witness so that the State’s entire case depended on the credibility of one witness; in the case at bar, the State presented the corroborating testimony of Mrs. White. Additionally, in Bradley, the complainant’s identification of Bradley was weak, suspect, and at one time inconsistent; no such frailties appear with the instant identification. Most importantly, the reviewing court in Bradley did not know what evidence Smith had presented to gain an acquittal; rather the court had to infer that, whatever it was, it was crucial since the State’s case was the same as to both defendants. However, no such speculation is required in the instant case. The evidence presented by Hearan after the defendant was found guilty is contained in the present record. It is conceded by all parties to be unconvincing and, in fact, did not change the jury verdict. Defendant can not successfully rely on a case so factually dissimilar.

We therefore conclude that because the evidence not considered by the trial court was admittedly unconvincing and because it has not been shown to be sufficient to result in a finding of not guilty, there was no error in the procedure followed by the trial court.

Moreover, defendant’s objection has come too late. During the entire procedure in the court below, defendant’s counsel never raised any objection to the court’s conduct. Although the State objected to the continuance granted Hearan, defendant Taylor did not. Neither haying objected to the continuance, nor having joined in the request for a continuance, he can not now complain. (People v. Armstead, 28 Ill.2d 252, 190 N.E.2d 778.) By remaining silent defendant failed to provide the trial court with an opportunity to pass on and correct the alleged error. It is axiomatic that a defendant may not sit idly by and allow alleged irregular proceedings to occur without objection, and afterward seek to reverse his conviction by reason of those same irregularities. (People v. Mays, 23 Ill.2d 520, 179 N.E.2d 654.) Moreover, in the instant case, defendant can be viewed as having invited the error complained of. When asked by the trial court if he was ready to proceed after Hearan was granted a continuance, he responded affirmatively. Thereafter, he made his final argument. By standing mute after presenting his evidence and argument, he invited the court to issue its findings. It is settled that such acquiescence constitutes a waiver of any alleged error. (People v. Jennings, 84 Ill.App.2d 33, 228 N.E.2d 566.) Although the court in Bradley, supra, found the same error as alleged here to be plain error, that finding was premised on the fact that the evidence in Bradley was closely balanced. As set out above, the evidence in the instant case is not nearly so close. (See People v. Killebrew, 55 Ill.2d 337, 342, 303 N.E.2d 377; People v. DeBerry, 62 Ill.App.2d 323, 335, 211 N.E.2d 26.) Defendant Taylor never once objected at trial to the court’s procedure. Since defendant persistently failed to bring this alleged error to the attention of the trial court, he can not do so now on appeal. People v. Virgin, 9 Ill. App.3d 902, 293 N.E.2d 349; People v. Lampson, 6 Ill.App.3d 1099, 286 N.E.2d 358.

Defendant next argues that he was improperly convicted and sentenced on the charges of aggravated battery since they arose out of the same course of conduct as that which resulted in the attempt murder charge. Defendant was convicted of three counts of aggravated battery and one count of attempt murder and sentenced on two counts of aggravated battery and one count of attempt murder. The State concedes that the counts of aggravated battery arose out of the same course of conduct as the attempt murder charge, and thus, the convictions and sentences on aggravated battery were improper. (People v. Lilly, 56 Ill. 2d 493, 309 N.E.2d 1.) We agree. Under these circumstances there can be but one conviction, that for attempt murder. (People v. Powell, 21 Ill.App.3d 423, 315 N.E.2d 627.) Accordingly, the convictions for aggravated battery are reversed and the sentences thereon vacated.

Defendant’s final argument is that the 10 to 20 year sentence for attempt murder is excessive. Attempt murder is a Class I felony. (Ill. Rev. Stat. 1973, ch. 38, par. 8 — 4.) Under the Unified Code of Corrections, the minimum term for a Class 1 felony shall be 4 years “unless the count, having regal’d to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(2).) Defendant challenges the sentence on two grounds.

First, defendant argues that a minimum greater than 4 years was impermissible because the trial judge imposed the greater minimum only because he felt sorry for the victim and not because he had a regard for the nature and circumstances of the offense or the history and character of the defendant. To support his argument, defendant points to this statement by the trial judge:

“As far as this cause is concerned, Mr. Taylor and the other fellows went out and tried to assassinate one of his playmates, a boy he went to school with, why is beyond my comprehension. Maybe it has to do with the war, but why they did it, it is beyond me. Here is a boy who was injured, namely, Mr. Albert Harris. The poor boy who lives on the West side, comes from a poor family, will walk around for as long as he lives probably with a white cane, with all of the injuries he sustained as a result of this senseless shooting. I do not understand it, I never will.”

While that statement indicates the trial judge’s compassion for the plight of Albert Harris, it also clearly indicates that the trial judge did consider the nature and circumstances of the offense. Indeed, it is clear from a reading of the trial judge’s comments that it is only because of the senseless and brutal nature of the ambush that a minimum greater than 4 years was imposed. It is also clear that the trial court considered the history and character of the defendant. There was a hearing in aggravation and mitigation during which the defendant presented two witnesses. Additionally, the court had before it a presentence investigation report. In fact, the trial judge said that because of the favorable testimony in mitigation, he was providing a large spread in the sentence in order to encourage defendant’s rehabilitation. Taking the record as a whole, there was no violation of the dictates of the Unified Code of Corrections.

In this regard, defendant also argues that there must be some positive showing such as the trial judge specifically stating that, in imposing a minimum greater than that required, the trial judge did consider the nature and circumstances of the offense and the history and character of the defendant. Defendant relies on People v. Matychowiak, 18 Ill.App.3d 739, 310 N.E.2d 394. However, in Matychowiak, the defendant was sentenced pursuant to a plea of guilty. There was -no hearing in aggravation and mitigation, no presentence report, and no detailed testimony concerning the crime. Consequently, the record foreclosed any consideration of the required sentencing factors. In the instant case, there was more than sufficient information in the record on the basis of which the trial judge could have properly imposed a greater minimum than that required. After a thorough review of the record, we conclude that although the trial judge did not specifically state that he was considering the circumstances of the offense and the history of the defendant, it is apparent that he did so. We hold that there is no requirement that the trial judge make any specific statement as to the factors considered, but instead, each case must be determined on its own facts after a review of the record and proceedings involved. See People v. Scott, 20 Ill.App. 3d 880, 314 N.E.2d 671.

Defendant’s second ground for challenging the sentence is that a 10-year minimum for attempt murder was excessive in light of defendant’s age and the fact that he had no prior criminal record. However, the minimum imposed was allowable under the Code. The record discloses a vicious attempted assassination. In view of the senseless and brutal nature of the attack and the severe injuries suffered by the victim, we decline to disturb the sentence imposed by the trial court.

Therefore, the convictions for aggravated battery are reversed and the sentences thereon vacated; the conviction and sentence for attempt murder are affirmed.

Judgment affirmed in part; judgment reversed and vacated in part.

HAYES, P. J., and DOWNING, J., concur.

         Apparently, a reference to the Supreme Gangsters, a gang to which Taylor belonged and which Harris had earlier that year refused to join.

       Which Harris took to mean, he was about to die.

       In this regard, defendant suggests that the only reason Lawson was acquitted was because the trial judge apparently considered the absence in the police reports of any accusations against Lawson. However, the trial judge was merely exercising his right and duty to weigh the credibility of the witnesses. (People v. Arroyo, 18 Ill.App.3d 187, 309 N.E.2d 804.) Moreover, as set out below, this was pot the only difference in the evidence against defendant and Lawson.

       While there is some testimony by two police officers that Harris also implicated Lawson, neither officer included that information in his official report. We agree with the trial judge that such police conduct is rather peculiar and note the difference with the uncontradicted accusations against Taylor.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Annie Ruth Huggin, Defendant-Appellant.
    (No. 60028;
    First District (2nd Division)
    December 24, 1974.

      Smith, Reilley, Bell, Weinberg & Levinson, of Chicago (Alfred L. Levinson, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mary A. Tate et al., Defendants-Appellants.
    (No. 58883;
    First District (5th Division)
    December 27, 1974.

      Paul Bradley, of State Appellate Defender’s Office, of Chicago, for appellant Mary A. Tate.
    Bernard B. Brody, Edward M. Genson, and Sam Adam, all of Chicago, for appellant Willie Bryant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

A jury found Mary A. Tate and Willie Bryant guilty of the murders of Othas Jameson and Freddie Tate in violation of section 9 — 1 of the Criminal Code. (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1.) Tate was sentenced to a term of 20 to 30 years and Bryant was sentenced to 15 to 20 years.

On appeal, Mary A. Tate contends: (1) that the evidence supports only a conviction of voluntary manslaughter, (2) that inadequate sentencing procedures were employed, and (3) that her minimum sentence was excessive. Willie Bryant contends: (1) that he was not proved guilty beyond a reasonable doubt, 2) that his conviction should be reversed because the State failed to call a “life and death” witness regarding the death of Freddie Tate, (3) that the trial court erred in denying his request for the grand jury testimony of Sabrina Tate, and (4) that the trial court erred in denying a mistrial.

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

Minnie Jameson:

She is the mother of Othas Jameson. On February 27, 1970, Othas was alive, but on March 1, 1970, he was dead.

Lewis Tate:

He is Mary A. Tate’s brother. At about 4:05 P.M. on Saturday, February 29, 1970, he arrived at the rear building at 3330 W. Fulton after working all day at Meyercord Co. Shortly after his arrival, Sabrina Tate, defendants’ 13-year-old daughter, entered the rear building, but he did not talk to her. She was staggering as though she had been drinking. After a few minutes, she left, returning to the first-floor apartment in the front building at 3330 W. Fulton where she lived with her parents. He and his nephew Ernest Jameson then went to a local tavern and purchased a bottle of Cutty Sark which when they returned was placed, unopened, on the kitchen table in the rear building. While he and Ernest were in the kitchen, his sister Mary A. Tate and Willie Bryant entered the building. His brother Freddie Tate and his nephew Othas Jameson were sitting in the living room at the front of the house. Mary asked Othas and Freddie who had made Sabrina drunk. Othas denied giving Sabrina anything. Willie then asked whether they were going to tell them who had made Sabrina drunk. James Lee told them that Sabrina had said that Willie’s son and a Puerto Rican had given her the alcohol. Willie left and Mary, before leaving, said they would return.

A few minutes later, defendants returned, entering the front door with a pass key. Willie approached the witness as he was standing in the hallway which runs through the middle of the rear building. Although he did not see what was in Willie’s hand, Willie had his hand in his back pocket and told everyone to leave. He told Willie that they were going to leave as soon as Cora, Freddie’s girlfriend, returned from the front building. When Willie pushed Ernest, Ernest grabbed Willie and they started to fight, ending up in the washroom. As Othas and Freddie approached from the living room, Mary, who was standing near the kitchen at the back of the house, told them that she had the gun and shot Freddie. Freddie grabbed the witness and asked Mary why she had shot him. Mary then put the gun to the witness’s head and said she should shoot him too. He helped Freddie out die back door to Ernest’s car. As he left he heard two more shots. When he returned he saw Othas lying in the hall. He heard Willie tell Mary she had done enough shooting; and he went to help Othas. He and Richard Jones accompanied Ernest as he drove the victims to the hospital. On the way to the hospital they struck a C.T.A. bus and Freddie, who was in the back seat of Ernest’s car between the witness and Richard, fell off the seat.

James Lee:

He is Mattie Tate’s boy friend. After leaving work at Hinckley & Schmidt, he stopped at a liquor store and purchased a pint of J & B Scotch. When he arrived home at the rear building at 3330 W. Fulton, he spoke with Freddie and Othas in the living room. Othas was drunk. Subsequently, Lewis Tate arrived. When Sabrina came in, he did not pay particular' attention to her, but she did talk to Lewis. After Sabrina left, Mary and Willie entered the building. Willie asked Othas who had made Sabrina drunk and Othas denied giving her anything. Willie slammed the door and left; but Mary, before leaving, said they would return. Ernest Jameson, who was also drunk, entered the building after Mary and Willie had left.

Willie and Ernest started arguing when he and Mary returned to the rear building. Mary was standing in the kitchen door near the back of the house. A fight, which ended up in the washroom, resulted when Willie pushed Ernest. The witness walked past Mary into the kitchen. Freddie was standing by the Coke machine opposite the washroom and Othas entered the washroom. Mary then shot Freddie; she threatened Lewis by pointing the gun at his head; she shot Othas as he came out of the washroom; and she fired a shot at Ernest.

Ernest Jameson:

He is Othas Jameson’s brother and Mary A, Tate’s nephew. He spent most of the afternoon on Saturday, February 28, 1970, drinking at home. Admittedly he was intoxicated. Sometime after 4 P.M., he went for a drive and happened to meet his brother Othas. Together they drove to 3330 W. Fulton to visit their uncle, Freddie Tate, who lived in the rear building. After their arrival, Lewis came in. He and Lewis went to a tavern and purchased a pint of Cutty Sark. He was in the kitchen when he first saw Willie and Mary. Willie, who had his hand in his pocket, told Lewis to leave and pushed the witness. When Willie pulled a gun, he grabbed Willie and they started fighting, ending up in the washroom. During the fight he heard three shots and saw Mary with another gun. She told him to let go of Willie or she would shoot him. As he left, he saw Othas lying on the floor outside the washroom and carried him to the car. As he was driving to the hospital, they hit a C.T.A. bus.

Mattie Tate:

She is Mary A. Tate’s sister and James Lee’s girl friend. Sometime after 4 P.M. on Saturday, February 28, 1970, while she was in the kitchen of the rear building, Sabrina Tate came in. She was grinning and walking strangely. About 10 minutes after Sabrina left, Willie came over, by himself, to look at the lights in the washroom. Later she heard Mary and Willie arguing with Othas and Freddie. Mary accused them of making Sabrina drunk. Othas denied the accusation. The witness went into the living room and asked what was wrong. Soon thereafter, Willie left and Mary, before leaving, said they would return. The witness then went over to the front building where she saw Willie standing by the closet holding a gun and some bullets. Mary was talking to Cora, Freddie’s girl friend. The witness told Mary that Sabrina had said she had gotten the alcohol from a Puerto Rican and Willie Bryant’s son. Willie then told Mary to come with him to the rear building. When Mary asked for what, Willie responded that she had said she was going out in back. Mary assented but said that she would not go empty-handed. Willie then went to the closet and gave Mary another gun. The witness, who did not think anything would happen, stayed in the front building tending to Sabrina, who was sick. Ten or 15 minutes later she heard one shot. She went outside and saw Lewis screaming that Mary had shot Freddie. She saw Mary, with the gun in her hand, and asked her why she had shot Freddie. Maiy said she was not aiming but that Freddie jumped into the line of fire.

Following this testimony, the parties stipulated that a gun, which was identified and admitted into evidence, was the weapon which caused the death of Freddie Tate. The parties also stipulated that had the pathologists, Doctors Salgia and Shalgos, been called they would have testified that Freddie Tate died of a bullet wound in the chest and was not under the influence of alcohol at the time of his death and that Othas Jameson died of a bullet wound in the back and was under the influence of alcohol at the time of his death.

Chicago Police Officer John Moore:

After receiving a radio call, he and his partner arrived at 3330 W. Fulton. They recovered and inventoried a revolver which had three live cartridges. They tiren proceeded to Garfield Hospital, where they discovered that the two people who had been shot had also been involved in an automobile accident and had been pronounced dead on arrival. He identified photographs of die interior of the rear building at 3330- W. Fulton which were subsequently admitted into evidence.

Chicago Police Officer Thomas Murphy:

After Mary A. Tate had been advised of her rights, she told him that when Sabrina left to go to the rear building, she laid down. When she awoke she observed that Sabrina had returned and was drunk. She told Willie and he went over to the rear building where he was cussed out by Freddie Tate. Both of them then went back to the rear building. The Jameson brothers jumped on Willie and during the struggle someone dropped a gun. She picked up the gun; told them to stop; and fired three shots.

For the defense:

John Peddie:

He is personnel director at Meyercord Co. Lewis Tate did not work there on Saturday, February 28; 1970.

Sabrina Tate:

She is the daughter of both defendants. Lewis and Freddie Tate entered the front building at 3330 W. Fulton at about 2 P.M. on the day of the occurrence and her mother Mary fed them .some lunch. Later, she and a friend Johnny Coleman went to the rear building. There she saw James Lee in the living room drinking whiskey from a bottle of Jim Beam. Ernest, Othas, Freddie, and Lewis were in Freddie’s room smoking marijuana. She and Johnny Coleman were given some marijuana. Othas was rolling the marijuana cigarettes and passing them around. Mattie Tate came in and smoked some too. The witness began to feel dizzy. Before she went home, Othas, at Lewis’s request, gave her some Calvert whiskey, but she drank very little. She went home feeling sick and vomited in her bedroom. She told her mother that Freddie and Othas had given her marijuana. Mattie Tate came over and helped the witness while she was sick.

Charles Scott and Lorina Ivy:

They are friends of Willie Bryant. In their opinions, Willie Biyant’s reputation in the community for peacefulness and veracity is good.

The parties stipulated that had Mrs. Wanda S. Ustaborowiez, the payroll clerk at Hinckley & Schmidt, been called to testify she would have stated that James Lee was not working there on February 28, 1970.

Richard Lee Jones:

He was a boarder at the rear building at 3330 W. Fulton. After leaving work on the day of the occurrence, he drank a half-pint of whiskey with some fellow employees and then came home. When he arrived he drank more whiskey with Freddie and Othas and then went to his room. Although he did not see Sabrina, he did see Freddie, Othas, and Lewis smoking marijuana. During the time he was there, Willie came over and looked at the light fixture in the washroom. Subsequently, Freddie, Othas, and Lewis started struggling over a gun in the kitchen. This struggle spilled over into the hallway and washroom where Mary also participated. Freddie was saying “Get the gun.” Two shots were fired and Freddie came into his room asking for help. He helped Freddie to the car; and the others brought Othas. On the way to the hospital, they hit a C.T.A bus and Freddie fell out of the car onto the pavement.

Charles Tate:

He is Mary A. Tates cousin. At 5:30 P.M. on the day of the occurrence, when he came home to the front house at 3330 W. Fulton, he saw Mary arguing with Freddie and Lewis about making Sabrina high. When he asked Mary what was wrong, she brought him into Sabrina’s room where Sabrina was lying sick on her bed, vomit everywhere. Mary said: “This is what is wrong, look what they let [Sabrina] do — have [Sabrina] do.” He asked Freddie, who seemed sober, to come with him to buy a bottle of whiskey. After they returned to the rear building, which smelled of marijuana, Willie and Mary came over and Willie asked Ernest, Othas, Freddie, and Lewis to leave. Ernest told Willie that the house was not his, and Willie left. The witness did not hear Mary say they would return. Although the witness asked Mattie to ask the others to leave, she did nothing. Mary and Willie then re-entered the building. As Willie started walking down the hall, Ernest pushed Willie into the washroom. Freddie, Othas, Lewis, and Mary then all ran toward the washroom. A gun fell. Freddie said, “Get the gun,” and a struggle for the gun ensued. The witness went into the kitchen and while he was there heard two shots. Freddie then came into the kitchen for help and the witness ran to call the police.

Mary A. Tate on her own behalf:

At about 2 P.M. on the day of the occurrence, she fed her brothers Freddie and Lewis some lunch. Freddie was high. After eating they left, and shortly thereafter Sabrina and Johnny Coleman went to the rear building. The witness then took a nap. At about 4 P.M., Freddie and Lewis returned for more food. While they were there, the witness found Sabrina in her room with vomit everywhere. Sabrina told her that Lewis, Freddie, Mattie, Othas, Ernest and Johnny Coleman had given her marijuana. The witness started fussing at Freddie and Lewis. When Charles Tate entered the building, he and Freddie left to go to the liquor store. Lewis also left. The witness and Willie Bryant then went to the rear building where they found Ernest and Othas in the living room. When WiHie spoke to them, Ernest told Willie that he did not own the building. Willie said all right and they returned to their apartment. She did not say, “We will return.”

When she and Willie arrived at the front building, Willie asked her to return to the rear building with him to fix a light fixture there. She was not angry at Freddie and Othas. As Willie was walking down the hall in the rear building Ernest ran past Willie and pushed him into the washroom and into the bathtub where they started fighting. Ernest was on top of Willie. During this fracas, a gun fell out of Ernest’s pocket. Freddie started yelling: “Get the gun.” The witness, who is left-handed, picked up the gun with her right hand and transferred it to her left. By that time Lewis and Othas had reached the washroom and she, Freddie and Othas started struggling over the gun. During this struggle the gun discharged twice and Freddie and Othas were wounded. Othas was able to walk out of the building with Ernest. After Lewis, Freddie, Othas, Ernest and Richard Jones left, she helped Willie out of tire bathtub. She told Mattie she “didn’t shoot anybody,” and she denied having any conversation with Officer Murphy.

Willie Bryant on his own behalf:

When he entered his apartment in the early evening of February 28, 1970, Mary was upset and asked him to look in Sabrina’s room. He saw Sabrina lying on her bed with vomit everywhere. Mary asked him to tell the people in the rear building not to smoke marijuana. He and Maiy went over to the rear house. He told Othas and Ernest who were sitting in the living room that he did not want them smoking marijuana there. One of them told him that he was not the owner of the building, but rather his wife, Signora, owned it. He and Mary left to return to the front building and later they returned to the rear building to fix a light fixture. He was carrying the fixture in his right hand and had an extension cord in his rear pocket. Neither he nor Mary had guns. He was not angry and he did not think Maiy was angry either. As he was walking down the hall in the rear building, Ernest ran down the hall, grabbed him, pushed him into the bathtub, and jumped on top of him. He did not hear any shots. Subsequently, Mary helped him out of the bathtub because he had injured his back.

The jury found both defendants guilty of the murders of Freddie Tate and Othas Jameson. After a hearing in aggravation and mitigation, the court sentenced Mary A. Tate to 20 to 30 years and Willie Bryant to 15 to 20 years.

Opinion

I.

Mary A. Tate contends that the evidence adduced at trial does not support a conviction of murder, but only of voluntary manslaughter. She now argues that she was acting under a sudden and intense passion resulting from serious provocation sufficient to incite a reasonable person (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 2) rather than acting intentionally or knowingly (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1). However, despite numerous variations in the testimony, we do not believe the evidence supports her contention.

Although there is some evidence that Mary was upset because of her daughter s condition, there is no evidence that she was acting under a sudden and intense passion at the time Freddie Tate and Othas Jameson were shot. At trial Mary Tate herself testified that she was not angry with Freddie and Othas and her testimony was confirmed by her codefendant Willie Bryant who testified that he did not think she was angry. Moreover, defendant’s current manslaughter theory is totally inconsistent with the theory she advocated at trial. There, her theory, supported by her testimony and the testimony of the other defense witnesses, was that she went to the rear building the second time to help Willie fix some lights and that while there became involved in a struggle over a gun which accidentally discharged resulting in the deaths of Freddie and Othas. The jury heard this evidence, but chose to believe the State’s theory that Mary intentionally shot Freddie and Othas. Furthermore, despite defense objection, the jury was instructed regarding voluntary manslaughter, but did not find in defendant’s favor on that issue. No citation is required to support the principle that it is the province of the trier of fact to weigh the credibility of witnesses. In this case, where there are numerous variations in the testimony concerning what occurred, the trier of fact’s observation of the demeanor of witnesses is particularly significant. We will not substitute our judgment for that of the juiy in this case.

Mary A. Tate next contends that inadequate sentencing procedures were employed. She points out that no presentence report was submitted on her behalf and that defense counsel offered nothing on her behalf in mitigation. In People v. Brezezinski, 15 Ill.App.3d 509, 305 N.E.2d 32, this court determined that a trial court at a hearing in aggravation and mitigation occurring before the adoption of the Unified Code of Corrections need not order or consider a presentence report. Since the hearing in aggravation and mitigation in the instant case occurred prior to the adoption of the Unified Code of Corrections, the holding in Brezezinski is applicable here. Furthermore, defense counsel in his argument in mitigation pled for mercy for Mary A. Tate, emphasizing the unfortunate nature of these particular crimes and the conflicts in the testimony. In these circumstances, we cannot say that inadequate sentencing procedures were employed.

Mary A. Tate lastly contends that her minimum sentence was excessive. She argues that we should either reduce her sentence pursuant to Supreme Court Rule 615(b)(4) (Ill. Rev. Stat. 1969, ch. 110A, par. 615(b)(4)) or that we should remand the matter to the trial court for reconsideration of the minimum sentence in light of the Unified Code of Correotions. Rule 615(b)(4) does permit reviewing courts to reduce sentences. However, proper sentencing is, in the first instance, a matter for the trial court’s determination, and the sentence imposed here was within the statutory limits. After reviewing the facts of the case, we cannot say that the sentence here does not fit the crime. Relying upon People v. Williams, 10 Ill.App.3d 456, 294 N.E.2d 98, defendant further suggests that section 5 — 8—1(c)(1) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(1)) placed a burden upon the trial court, in a murder case before the adoption of the Unified Code, to show why the defendant’s minimum sentence should exceed the statutory minimum for the crime. Section 5 — 8—1(c)(1) provides:

“The minimum term shall be set according to the following limitations:
(1) for murder, the minimum term shall be 14 years unless the court, having regard to the nature and circumstances of the offense and the history and character of the defendant, sets a higher minimum term.”

Even assuming that section 5 — 8—1(c)(1) of the Unified Code is applicable, we believe the trial court here, being advised of the nature and circumstances of the instant crime was within its authority in sentencing defendant to a term of 20 to 30 years for the murder of her brother and her nephew.

II.

Willie Bryant contends that he was not proved guilty beyond a reasonable doubt. The evidence adduced at trial does not indicate that Willie Bryant, himself, shot anyone. He was in the bathtub struggling with Ernest Jameson at the time of the shooting. However, the law is clear that a person may be held criminally liable for the conduct of another in certain limited circumstances. Section 5 — 2(c) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 5 — 2(c)) provides:

“A person is legally accountable for the conduct of another when: Either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense.”

The jury in the instant case was instructed regarding accountability.

Despite variations in the testimony, the evidence in the instant case indicates that Willie Bryant did indeed aid and abet the commission of the crime here. Mattie Tate’s testimony indicates that defendant, after getting a gun for himself, also gave Mary A. Tate a gun immediately before they both proceeded to the rear building. The testimony of Ernest Jameson indicates that Willie pulled a gun before they began fighting and Ernest’s testimony is corroborated to some extent by Lewis Tate’s testimony that Willie was in the process of bringing his hand out of his rear pocket when Willie and Ernest began fighting. Although there is evidence to the contrary, the jury, after hearing the testimony and weighing the credibility of witnesses, resolved the issues against defendant. We will not disturb this finding in the instant case; defendant was found guilty beyond a reasonable doubt.

Willie Bryant next contends that his conviction must be reversed because the State failed to call a “life and death” witness regarding the death of Freddie Tate. The testimony of a “life and death” witness is a method of proving an element of the corpus delicti of the crime of murder which consists of two elements: (1) the fact of death, and (2) the fact that death was caused by criminal agency. (People v. De Mario, 112 Ill.App.2d 175, 251 N.E.2d 267.) Defendant argues that while the State, through the stipulation regarding the testimony of the two pathologists, did prove the second element of the corpus delicti, it did not prove the first element. Specifically, defendant suggests it was not established that the body examined by the pathologists was that of Freddie Tate. A similar argument was made in People v. Schneider, 360 Ill. 43, 50-51, 195 N.E. 430, 433. There defendant argued that the corpus delicti of the crime was not proved since, because of the inconsistencies in the spelling of the decedent’s name, the man who died was not proved to be the man who was injured by defendant. The supreme court, after examining the facts of the case and noting the similarities in injuries and in spelling, determined there was sufficient evidence that the deceased was the man defendant had injured.

In the instant case, the testimony clearly established that Freddie Tate was shot. The injuries he was said to have received correspond to the injuries reported by the pathologists on the body they examined. The stipulation entered into by the parties regarding cause of death referred to Freddie Tate, and Officer Moore testified that the two people who had been shot and who had been involved in an automobile accident were pronounced dead on arrival at Garfield Hospital. In these circumstances, we believed that the fact of Freddie Tate’s death was sufficiently proved and therefore the failure to call a “life and death” witness was not reversible error.

Willie Bryant also contends that the trial court erred in denying his request to be provided with the grand jury testimony of Sabrina Tate. Bryant’s motion at trial was based upon Brady o. Maryland, 373 U.S. 83. In Brady, the United States Supreme Court determined that due process of law is violated when the State suppresses evidence favorable to defendant which is material to either guilt or punishment. In the instant case, while the State did not turn over to the defendant Sabrina Tate’s grand jury testimony, Sabrina Tate testified for the defense and defendant knew the substance of her grand jury testimony. Defendant was not prejudiced by the State’s failure to supply him with Sabrina Tate’s grand jury testimony. See Haywood v. State (Tex. Crim. App. 1974), 507 S.W.2d 756, 759-760.

Bryant lastly contends that the trial court erred in denying his motion for a mistrial. During jury deliberations, one of the jurors discovered that one of the live cartridges taken from the murder weapon was a “hang fire,” and he reported the matter to the court, which denied a defense motion for a mistrial. Following the deliberations, the court inquired into the matter with the juror who had discovered the “hang fire,” who stated that the jury’s verdict was not affected by this discovery. A motion for mistrial is addressed to the sound discretion of the court (People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389), and in these circumstances we cannot say that the trial court abused its discretion in denying a mistrial.

Therefore, the judgments of the circuit court of Cook County are affirmed with regard to both defendants.

Affirmed.

SULLIVAN, P. J., and BARRETT, J., concur.

       The following instruction was given to the jury:
      “A person is responsible for the conduct of another person when, either before or during the commission of a crime, and with the intent to promote or facilitate the commission of a crime, he knowingly solicits, aids, abets, agrees or attempts to aid the other person in the planning or commission of the crime. I.P.I. # 5.04 Given.”


text:
    Roy M. Jones, a Minor, by Virdine Wesley, his mother and next friend, Plaintiff-Appellee, v. Irene B. DeWig el al., Defendants-Appellants—(Walter Popek, Defendant.)
    (No. 59604;
    First District (5th Division)
    December 27, 1974.
    Mathew K. Szygowski, of Chicago (Bianco & Szygowski, of counsel), for appellants.

      David Alswang, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff filed a two-count complaint in this case. Count I alleged that he received personal injuries when he was shot by Walter Popek, and Count II alleged facts showing that appellants were liable pursuant to the Dram Shop Act (Ill. Rev. Stat. 1963, ch. 43, par. 135). At the close of all the evidence, the court directed verdicts in plaintiffs favor on the issues of liability and submitted the questions of damages to the jury. Verdicts were then returned against Popek on Count I and against appellants on Count II, and judgments were entered accordingly. Only defendants Irene and Donald DeWig and Francis Wondriska appeal from the judgment entered against them.

Appellants contend that the trial court erred in (1) admitting into evidence Walter Popek’s hearsay statement or at least in admitting it against them; (2) permitting hearsay hospital records and doctor’s reports to be read to the jury; (3) permitting prejudicial reference to be made to insurance; (4) limiting the scope of cross-examination; and (5) entering judgment in excess of the statutory maximum.

Plaintiff cross-appeals from denial of his motion for costs and attorney’s fees pursuant to section 41 of the Civil Practice Act. Ill. Rev. Stat. 1971, ch. 110, par. 41.

The following pertinent evidence was adduced at trial:

Jose Vasquez

He is Walter Popek’s attorney, but was unable to locate him for the instant proceedings. He was present when his client, prior to a hearing on criminal charges arising out of the same facts as the instant case and knowing that intoxication was a matter to be used in mitigation of those criminal charges, made a statement under oath admitting his intoxication and naming the tavern at which he had been drinking.

Angela Hensler

She is the court reporter who took Popek’s statement. Over the objection of appellants she was permitted to read that statement.

Popek stated that he went to Don and Irene’s Tap at about 9 P.M. on October 18, 1963. While he was there he drank 6 or 8 small beers. He purchased a half-pint of whiskey before leaving at about 9:45 P.M. He went home and drank part of the half-pint. He was intoxicated. Later, he drove to Cermak and Central Park where he saw some boys who had previously thrown rocks at him. He parked his car and got out, taking his shotgun with him. Although he could not figure out why, everyone started to run. He stated:

“I figured if I catch one I got one in the car, I got the gun, got out and I told him to stop and one guy on the end was standing against the building and I started across the street toward him and I got to the curb and I pointed the gun at him and I told him i£ he was going to run, to run now, and he was standing there and he said something to me and I asked him are you one of the guys and he said no, I’m not and I said where are they at and he said around the corner and he started up the curb and the gun went off once and I started walking around the car and he said if you know what’s good for you you’ll put it away and I started walking back and I was talking to him and that’s all I remember.”

Roy M. Jones on his own behalf

On the evening of October 18, 1963, as he approached the intersection of Cermak and Central Park near Farragut High School, he saw Popek park his automobile and get out. He heard him yelling obscenities at some boys. Popek was carrying a shotgun and appeared to be intoxicated. He put the shotgun to one boy’s head and said something which Jones could not hear. Jones and the other boys in the area started to run. He heard a shotgun blast and fell to the ground feeling intense pain in his back.

Opinion

I.

Appellants first contend that the trial court erred in admitting into evidence Walter Popek’s hearsay statement or at least in admitting it against them. While Popek’s statement is hearsay, it is admissible against Popek because it falls within the admissions exception to the hearsay rule. A statement of a party to an action which tends to establish or disprove any material fact is admissible against him. Felker v. Bartelme, 124 Ill.App.2d 43, 260 N.E.2d 74; Korleski v. Needham, 77 Ill.App.2d 328, 222 N.E.2d 334.

However, because the statement is admissible against Popek does not necessarily mean that it is also admissible against the appellants. At trial, plaintiff offered this statement, which was the only evidence linking Popek to the appellants, as a declaration against interest. In Illinois, a declaration against interest is an exception to the hearsay rule. Four requirements must be satisfied for a statement to qualify for this exception: (1) the declarant must be unavailable; (2) the declaration must be against the declarant’s pecuniary interest; (3) the declarant must have competent knowledge of the facts declared; and (4) the declarant must have no probable motive to falsify the facts declared. (German Insurance Co. v. Bartlett, 188 Ill. 165, 58 N.E. 1075.) In Naylor v. Gronkowski, 9 Ill.App.3d 302, 292 N.E.2d 227, the court determined that a statement made during prior criminal proceedings by the perpetrator of the crime which was the basis of the civil suit was inadmissible as a declaration against interest. In a specially concurring opinion in Naylor, Mr. Justice Stamos stated at page 309:

‘In addition, Spagnola’s prior testimony may have been a deliberate fabrication for purposes of establishing the defense of intoxication in his criminal trial for the offense of murder. I express no opinion as to whether such was his intent, but merely observe that there existed a probable motive to falsify the facts declared.”

In the instant case, we do not believe the fourth requirement of the declaration against interest exception to the hearsay rule was satisfied. Here declarant had a probable motive to falsify the facts declared. Popek’s statement, like Spagnola’s statement in Naylor, was made under the pressure of pending criminal proceedings. Both statements were made with a view toward establishing intoxication as a defense or as mitigation in those criminal proceedings. In these circumstances, Popek had a probable motive to falsify his statement. Therefore, the statement does not qualify as a declaration against interest and the trial court erred in admitting the statement against appellants. Since no other evidence was presented at trial linking Popek to the appellants, plaintiff did not establish their liability, and the judgment against Irene and Donald DeWig and Francis Wondriska must be reversed. In the light of this holding, we need not consider appellants’ other contentions.

II.

Plaintiff, on his cross-appeal, contends that the trial court erred in denying his motion for costs and attorney’s fees under section 41 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 41.) He argues that defendants did not deny his allegations in good faith. Having examined the record, we do not concur in plaintiffs view.

The judgment of the circuit court is reversed; and the denial of plaintiff’s motion for attorney’s fees and costs is affirmed.

Affirmed in part; reversed in part.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edward D. Young, Defendant-Appellant.
    (No. 59885;
    First District (5fh Division)
    December 27, 1974.
    James J. Doherty, Public Defender, of Chicago (Harold A. Cowen and James M. Sammons, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Donald M. Devlin, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE BARRETT

text:
    Clark Oil & Refining Corporation, Plaintiff—Counterdefendant—Appellee—Cross-appellant, v. John H. Thomas, Defendant—Counter-claimant—Appellant—Cross-appellee.
    (No. 59318;
    First District (5th Division)
    December 27, 1974

      William E. Kelly, of Chicago, (Pope, Ballard, Shepard & Fowle, of counsel), for appellant.
    Porcelli & Jorgenson and Rabens, Formusa and Glassman, both of Chicago, (George C. Rabens, of counsel), for appellee.
   Mr. JUSTICE BARRETT

delivered the opinion of the court:

Defendant brings this appeal following a jury trial in which a verdict was entered granting possession of the subject premises to plaintiff. Plaintiff has cross-appealed seeking reversal of the judgment awarding $5,000 in damages to defendant-counterplaintiff.

Plaintiff filed this forcible entry and detainer action to gain possession of a certain gasoline station premises occupied by defendant. Defendant filed affirmative defenses and a counterclaim which included alleged violations of the Illinois antitrust laws and the unlawful withholding of $6,200 in robbery-insurance proceeds.

On appeal, defendant alleges that the trial court erred in striking the affirmative defenses and counterclaim allegations relating to the Illinois antitrust laws. Plaintiff’s cross-appeal seeks reversal of the judgment awarding defendant damages on the counterclaim, alleging that there was no evidence against plaintiff to support the verdict. Plaintiff has also moved to dismiss defendant’s appeal because defendant failed specifically to request a new trial in his post-trial motion and now seeks that remedy through this appeal.

The facts in this case show that plaintiff is a refiner of gasoline products which it markets to retail dealers who sell to the public. Defendant was a retail service station dealer who leased a Clark service station under a 1-year lease. The lease was dated August 31, 1972, and covered the premises at issue in this suit. Plaintiff and defendant also entered into a 1-year retail dealer consignment agreement dated August 31, 1972, under which plaintiff agreed to supply defendant with gasoline. Under the terms of the lease, rent was to be paid in a sum of 2 cents per gallon for each gallon of gasoline sold from the premises each day. The rent was to be remitted each day, except Saturday and Sunday, for the previous day’s business.

The record shows that defendant was delinquent in his remittance of payments for consigned products and rent for most of the month of January, 1973. He failed to remit on a daily basis from January 1 until January 11. Defendant also failed to remit money due from January 11 to January 23, except for $691.03 due for January 19, which amount was tendered in cash to plaintiff’s assistant district manager. Defendant’s total delinquency from January 11 to January 23 amounted to approximately $9,000.

In explanation of his delinquencies, defendant claimed that he sustained two robberies during January, 1973. As a result of the robberies, defendant allegedly sustained losses of $6,200 for which he made claim to his independent insurance carrier.

On January 22, 1973, defendant assigned any proceeds he might receive under his insurance claims to plaintiff to be applied toward monies due to it. On January 22, defendant also acknowledged, in writing, that he was indebted to plaintiff in the amount of $7,741.96 for consigned gasoline products. He promised to pay the amount due by the next day.

On January 23, 1973, defendant failed to make any further payments of monies he owed plaintiff. Accordingly, plaintiff tendered a letter to defendant stating that it was exercising its option to terminate defendant’s lease and re-enter the premises because defendant had not made the daily payments due for consigned products and rents. Defendant agreed to return possession of the service station premises to plaintiff. Later that day, a new dealer, Raymond Howard, was installed. Defendant turned over the keys to the service station to the new dealer, and plaintiff’s representatives left the premises.

The next day, January 24, 1973, John Cammack, plaintiff’s assistant district manager, received a phone call from defendant who stated that he had not, in fact, given up the station. When Cammack went to the station later that afternoon, defendant was back in possession of the station and the new dealer was not to be found.

Plaintiff then instituted this action to regain possession of its service station.

In his answer, defendant denied the allegations of the complaint and affirmatively alleged that defendant occupied the premises under an expired lease; that plaintiff’s alleged policy of operating a gasoline retail outlet is in violation of the Illinois Antitrust Act (Ill. Rev. Stat. 1973, ch. 38, par. 60 — 1 et seq.); that plaintiffs attempted eviction of defendant was in retaliation for his refusal to conspire with plaintiff to violate the Illinois antitrust laws in various unspecified ways, including claimed retail price fixing and exclusive dealing; that plaintiff’s alleged conduct in retaliation for defendant’s refusal to conspire with plaintiff to violate the Illinois antitrust laws was contrary to public policy; and that the relationship between the parties was not one of landlord-tenant subject to Illinois eviction law, but rather was that of joint adventurers or franchisee.

Defendant’s counterclaim incorporated by reference the allegations of his answer and affirmative defenses and alleged that in violation of the Illinois antitrust laws plaintiff coerced defendant into unlawfully fixing the retail price of plaintiff’s products and required defendant to purchase from suppliers which plaintiff had designated; that plaintiff used the lease of its service station and the threat of nonrenewal to coerce defendant into participating in the claimed unlawful conduct, thereby placing him at a competitive disadvantage. Defendant claimed injury in the amount of $50,000. Defendant also alleged that he was required to purchase robbery insurance from an agency that works closely with plaintiff; that he had losses totaling $6,200 which were covered by the insurance; that he submitted “proofs of loss” but that plaintiff never accounted to him for the $6,200 loss allegedly covered by the insurance.

Plaintiff subsequently moved to strike the affirmative defenses and the counterclaim as not cognizable in law and not germane to the issues in the forcible entry and detainer action. After hearing arguments, the court struck the affirmative defenses relating to alleged violations of the Illinois antitrust laws and the claimed joint adventurer-franchisee-hold-over tenant status. The remainder of the counterclaim contained allegations that plaintiff had not accounted for or paid defendant the $6,200 in robbery insurance proceeds and that defendant was forced to run a “Clark operation” and was thereby put at the competitive disadvantage, suffering damages in the amount of $50,000.

Subsequent to granting the motion to strike certain defenses and counterclaim allegations, the court allowed plaintiffs motion in limine which directed defendant and his counsel to refrain during the trial from referring to defenses or counterclaims which had been stricken.

Following trial by jury, judgment was entered in favor of plaintiff on .the finding that defendant was guilty of unlawfully withholding possession of the station premises. Damages were assessed in favor of defendant on his counterclaim in the amount of $5,000. Both sides filed post-trial motions. Plaintiff moved the court to set aside the jury verdict on the counterclaim and to vacate the judgment entered thereon. In the alternative, plaintiff moved for a new trial. Defendant moved the court to arrest the judgment in favor of plaintiff, or, in the alternative, to set aside the verdict of the jury and vacate the judgment entered upon that verdict. The trial court deified all post-trial motions.

Opinion

The first issue before us is whether the affirmative matters stated by defendant in his answer and counterclaim were properly stricken. Specifically, we are asked to decide whether or not the affirmative matters raised by defendant are germane to the issues in the forcible entry and detainer suit.

Forcible entry and detainer is brought to effectuate the restoration of possession of premises to the person entitled thereto. (Ill. Rev. Stat. 1973, ch. 57, par. 2.) Generally, the forcible entry and detainer action is a proceeding of special and limited jurisdiction which is unimpeded by collateral matters not directly connected with the question of possession. Johnston v. East St. Louis Illinois Homes, Inc., 71 Ill.App.2d 79, 218 N.E.2d 38.

In part, the statute provides that ‘no matters not germane to the distinctive puipose of the proceeding shall be introduced by joinder, counterclaim or otherwise: Provided, however, that a claim for rent may be joined in the complaint, and judgment obtained for the amount of rent found due.” (Ill. Rev. Stat. 1973, ch. 57, par. 5). Certain equitable defenses and counterclaims directly connected with and germane to the right of possession are available. Bleck v. Cosgrove, 32 Ill.App.2d 267, 177 N.E.2d 647.

In the instant case, the trial court decided to strike the portions of the defense and counterclaim relating to antitrust claims. We are now asked to determine whether the stricken defenses and counterclaims asserted by defendant were “germane to the distinctive purpose of the proceedings.” Defendant argues that such claims raise an issue as to the enforceability of plaintiffs right to terminate the lease agreement for failure to pay rent due. Plaintiff argues that defendant is seeking to litigate complex issues of lav/ and fact under the antitrust laws by way of counterclaim to a statutory proceeding. Further, plaintiff contends that no authority cited by defendant permits such a result and no principle of law or' equity requires it.

■ It is well recognized that the legal right of defendants in forcible entry and detainer actions to raise affirmative defenses has been expanded by Jack Spring, Inc. v. Little, 50 IH.2d 351, 280 N.E.2d 208, and Rosewood Corp. v. Fisher, 46 U1.2d 249, 280 N,E.2d 208. Jack Spring holds that where the landlord’s right to possession is asserted solely by reason of nonpayment of rent, the question of whether rent is due arid owing is crucial to the decisive issue of possession. Rosewood holds that equitable defenses may be raised in, and are germane to, the determination of the right of possession.

In the case at bar, unlike either Rosewood or Jack Spring, defendant occupied a commercial premises under a written lease. The lease provided that defendant make payments of rent and monies due for consigned products on a daily basis and that if he failed to do so plaintiff, which owned the station, had the right to repossess it. Plaintiff supplied defendant with an operating gas station and otherwise performed its obligations under the contract. Under those circumstances we cannot hold that the antitrust laws provided equitable defenses which defendant could raise in this action.

Regardless of the validity of the contract between the parties at the time this action was brought, the record clearly shows that defendant was indebted to plaintiff in the amount of $7,741.96. Although this amount included rent owed by defendant, it primarily consisted of monies due for consigned gasoline products. Simply stated, defendant was using plaintiff’s premises to conduct his business and was selling plaintiff’s products. He was paying for neither. Under these circumstances, the lease specifically states that it is the right of the lessor to take possession of the premises if the lessee fails or refuses to pay rent or pay other monies due under the terms of the retail agreement executed by the parties.

Therefore, under the factual conditions of this case, we hold that the aspects of defendant’s answer and counterclaim based on antitrust laws are not germane to the decisive issue of possession. The trial court acted properly in striking the affirmative defenses and counterclaim based on violation of the antitrust laws.

On cross-appeal, plaintiff argues that there is no evidence in the record on which to base any finding of liability on the part of plaintiff to defendant. Defendant argues that he sustained two robberies from which his losses were $6,200. He further contends that plaintiff deprived him of the insurance proceeds which covered the loss.

By virtue of the written agreement between plaintiff and defendant, defendant assumed the risk of less for any robbery or other loss. Consequently, he purchased robbery insurance from Casualty Insurance Company, an independent insurer, through the Insurance Survey Agency. No insurance coverage was written by plaintiff, and no provision of the lease required defendant to purchase such insurance. Following the two robberies, plaintiff’s agent delivered and picked up proof of loss forms which defendant prepared. The proofs of loss were received by the insurance company and produced at trial. Defendant offered no proof to show that the claims were denied or in any way interfered with by plaintiff or that plaintiff had ever received payments for the claims submitted. There was testimony to the effect that no money was ever paid to plaintiff. Furthermore, there was testimony that on January 22, 1973, defendant assigned any proceeds he might receive under his insurance claims to plaintiff to be applied toward monies due it. Defendant admits that he read and signed the assignment and that it was a true and correct document when signed. The assignment states that the insurance proceeds were to be in partial payment of monies defendant owed to plaintiff. The debt was stated to be at least $7,741.96 at the time of the assignment.

In short, there is no evidence on which to base the assumption that plaintiff wrongfully deprived defendant of $6,200 in insurance proceeds. Furthermore, he failed to prove that plaintiff ever received any money for which it should account to him or that plaintiff improperly obtained the insurance assignment from him.

There is also no evidence in the record on which to base a finding that .defendant sustained any injury or damage as a result of any conduct of plaintiff. The evidence of lost profits was speculative and conjectural and was not in any way established with reasonable certainty by competent proof. We find no evidence to establish any liability on the counterclaim and no evidence of any damage to defendant on which any award could be based. We therefore reverse the judgment .for defendant on the counterclaim. In view of the fact that we have decided this case on the merits, we find it unnecessary to address ourselves to plaintiff’s motion to dismiss the appeal.

For the reasons stated above, the judgment of possession entered in favor of plaintiff is affirmed and the judgment award of damages entered in favor of defendant on the counterclaim is reversed.

Affirmed in part; reversed in part.

DRUCKER and LORENZ, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Herbert Mays, Defendant-Appellee.
    (No. 60196;
    First District (2nd Division)
    December 31, 1974.
   PER CURIAM.

Bernard Carey, State’s Attorney, of Chicago (Edward J. Ozog and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for the People.

Sam Adam, of Chicago, for appellee.


author: Mr. JUSTICE MEJDA

text:
    Joseph Carroll, a Minor, by James E. Carroll, his father and next friend, Plaintiff-Appellant, v. Max McGrath et al., Defendants-Appellees.
    (No. 59419;
    First District (3rd Division)
    December 31, 1974.

      Karlin and Fleisher, of Chicago (Barry M. Woldman, of counsel), for appellant.
    Taylor, Miller, Magner, Sprowl and Hutchins, of Chicago (James J. Hoffnagle, of counsel), for appellees.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plaintiff, Joseph Carroll, a minor, by James E. Carroll, his father and next friend, brought action for personal injuries sustained when he was struck by an object dropped from a “tree house” in defendants’ backyard. Upon a trial by jury, defendants, Max and Darlene McGrath, rested without further testimony at the close of plaintiff’s case. A directed verdict was entered in favor of defendants. Plaintiff appeals, contending error in directing the verdict and in excluding the testimony of plaintiff’s experts.

Approximately 2 years prior to the accident, defendant Max McGrath constructed a tree house in the backyard of his home, using materials purchased locally and following plans indirectly purchased from Craft Pattern Company. The structure was not in fact attached to a tree but was a free-standing cabin measuring 6 feet in width and 8 feet in length, supported several feet above the ground by wooden posts at each corner. Access to the tree house was provided by means of a wooden ladder extending from the ground to a trapdoor located in the floor of the tree house. Within 2 months after its erection defendant Max McGrath formed a sandbox with 2" x 6" boards placed along the ground enclosing the four upright posts. The plans for the tree house did not provide for a sandbox or any other structure immediately underneath. At the time the sandbox was added, a hasp latch with padlock was installed on the trapdoor of the tree house.

On the afternoon of April 18, 1967, plaintiff — then age 3 — entered defendants’ backyard with his brother James Carroll, Jr. — then age 5— and proceeded to the sandbox. James climbed up the ladder and entered the tree house through the unlocked trapdoor. About 10 minutes later he dropped a rectangular metal milk-box cover down through the trapdoor which struck plaintiff in the right eye. The injury resulted in the removal of the eye.

At trial, Darlene McGrath was called by plaintiff as an adverse witness and testified that she knew neighborhood children, including plaintiff, played in the sandbox; that only occasionally did she supervise this play; and that although children brought toys into the sandbox, to her knowledge the toys were never taken into the tree house. She stated that following the accident she learned that her son Steven had unlocked the trapdoor but she did not know how long it had remained unlocked. In the afternoon of the accident she remained in the house while her son Kevin played in the backyard with some neighborhood children. She stated that after the accident plaintiff’s brother told her he had taken McGrath’s milk-box cover out of their garage and into the tree house and had dropped it out of the trapdoor.

Defendant Max McGrath was also called as an adverse witness and testified that he, too, knew that neighborhood children, including plaintiff, played in their sandbox; that he was sure toys were brought into the sandbox on occasion, and that at times when the tree house was not in use he had observed toys and other play materials on the tree house floor.

James Carroll, Jr., testified that he had climbed up into the tree house, found the McGrath’s milk-box caver lying on the floor and decided to drop it out of the trapdoor. He stated that plaintiff was in the sandbox attempting to climb up the ladder when he told him to move out of the way, and that plaintiff did in fact move to the right. James then dropped the cover which struck plaintiff in the right eye. He stated that to his recollection, he and plaintiff were alone in defendants’ backyard at the time.

Plaintiff testified that after entering defendants’ backyard his brother climbed up into the tree house but did not take anything with him. Plaintiff remained in the sandbox for about 10 minutes until his brother told him to move out of the way. He stated that at this point he was standing in the sandbox looking up; that although he did not move as requested by his brother, the cover which was dropped hit him in the right eye. He further stated that there were about 10 other children in the backyard at the time, some in the sandbox and some in the tree house with his brother.

Plaintiff called Robert J. Smith and Allan Casper to testify as expert witnesses concerning the modification of the tree house design to include the sandbox. Defendants objected that such testimony would infringe upon the ultimate issue, and the trial court refused to allow the witnesses to testify. Plaintiff made offers of proof that Robert J. Smith, President of Craft Pattern Company, which drafted the plans used by defendant Max McGrath, would have testified that in 25 years of experience he has never known of a design which included the installation of a sandbox immediately underneath; that he would have further testified that in his opinion such placement of the sandbox would create a dangerous and hazardous condition. According to plaintiff, Allan Casper — a park and recreation manager of several years’ experience and wide reputation and the author of several articles on park and recreation management— would have testified that he personally supervised and constructed tree houses of the same design and that in all of his experience such structures are always left open and clear underneath to avoid attracting people to the area below, and that in his opinion, placing a sandbox immediately underneath such tree house would create a dangerous and hazardous condition to any one playing in the sandbox. Defendants rested without producing any further evidence, and their motion for directed verdict was thereupon granted.

Plaintiff’s primary contention is that the trial court erred in directing a verdict for the defendants. A directed verdict can be entered only when all the evidence viewed in its aspect most favorable to the opponent so overwhelmingly favors the movant that no contrary verdict based on the evidence could ever stand. (Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.) It is upon this standard that we review the propriety of the entry of the directed verdict in this case.

Plaintiff seeks to recover damages for the injury he sustained while upon defendants’ property, under a theory of liability first established in Kahn v. James Burton Co. (1955), 5 Ill.2d 614, 126 N.E. 2d 836. The Illinois Supreme Court there stated that as a general rule a child trespasser enjoys no greater status on the property of another than adults and is owed no higher duty of care by the owner or occupier thereof. The court recognized, however, that an exception exists where (1) the owner or person in possession knows or should know that young people habitually frequent the vicinity of (2) a defective structure or dangerous agency existing on the land (3) which is likely to cause injury to them because they, by reason of their immaturity, are incapable of appreciating the risk involved, and (4) where the expense or inconvenience of remedying the condition is slight compared to the risk to the children. The existence of these four elements gives rise to a duty upon the owner or occupier of land to exercise due care to remedy the condition or otherwise protect the children from injury resulting from it. Nonetheless, under the Kahn standard, an owner or occupier of property does not thereby become an insurer of the safety of trespassing children. Liability can be predicated only upon some fault, and fault does not arise unless the injury is the natural and probable result of a negligent act or condition and is of such character that an ordinary prudent person ought to have foreseen as likely to occur as a result of that negligence. (Driscoll v. C. Rasmussen Corp. (1966), 35 Ill.2d 74, 219 N.E.2d 483.) Plaintiff argues that sufficient evidence was adduced to create questions of fact for the jury as to each element of the Kahn standard and that, therefore, the trial court erred in directing a verdict for defendants.

The record contains ample evidence that defendants were aware that young children frequented the vicinity of the tree house and sandbox; that plaintiff, due to his age, was incapable of appreciating the risk of harm therefrom, and that the expense or inconvenience of remedying the condition was slight compared to the risk of injury to children. Defendants each testified that they knew young neighborhood children played in the backyard and specifically in their sandbox. At the time of the injury plaintiff was 3 years of age, a stage of intellectual development and sophistication barely removed from infancy. The construction of the sandbox by nailing four pieces of wood to the corner posts of the tree house at ground level and filling the interior with sand indicates in itself the absence of expenses or inconvenience to remove or relocate it elsewhere. As to these three elements of plaintiff’s cause of action, the evidence created questions of fact for the jury, and a directed verdict did not he.

Plaintiff does not contend that defendants’ tree house and sandbox were in themselves either defective or dangerous; instead, plaintiff’s complaint alleges that the placement of the sandbox immediately below the trapdoor in the floor of the tree house constituted the requisite dangerous agency. A dangerous agency can result from a common instrumentality or instrumentalities which in themselves are not dangerous if the instrumentality or combination thereof in relation to the surroundings creates a hazardous condition which is likely to cause injury to young children. (Trobiani v. Racienda (1968), 95 Ill.App.2d 228, 238 N.E.2d 177; Smith v. Springman Lumber Co. (1963), 41 Ill.App.2d 403, 191 N.E.2d 256.) In Smith, defendant appealed from a judgment entered upon a verdict for plaintiff, contending that there was no evidence that a dangerous agency existed on his property. There, an unused but non-defective fuel oil tank was placed in such proximity to a tree that children living in the apartment building of defendant played around and upon the tank and into the adjoining tree, which defendant knew. In affirming the judgment the court stated that the proper yardstick with which to measure the case against the Kahn standard was whether or not the tank and tree together created a dangerous agency likely to cause injury to children, and held that the evidence presented a question of fact for the jury.

In the instant case, evidence was introduced that defendants’ tree house was modified to include the sandbox placed under the trapdoor and that the plans used did not provide for such installation. The fact that young children amusing themselves in defendants’ backyard would be drawn to the sandbox is obvious. If a child was injured while playing in the sandbox by the operation of a natural, probable and foreseeable consequence of its placement below the trapdoor of the tree house, a question of fact would arise as to whether the configuration of these two structures constituted a dangerous condition or agency. We believe that sufficient evidence was introduced which would have prohibited the entry of a directed verdict on this particular element of the plaintiff’s cause of action.

The final element in plaintiff’s cause of action which must be considered is that of proximate cause. Initially, it must be determined if a question of fact arises under the evidence as to whether the injury sustained by plaintiff was the natural and probable result of the maintenance of a dangerous agency on defendants’ property. In arguing that the injury was foreseeable plaintiff asserts the following: (a) that the proclivity of small boys to throw or drop objects which no longer hold their interest is a matter of common knowledge; (b) that both defendants testified they were aware that children brought toys into the sandbox; (c) that according to the testimony of defendant Max McGrath, on at least one occasion, play materials were also found on the tree house floor; and (d) that defendant Max McGrath indicated that he anticipated some dangers arising from the tree house by his installation of a hasp latch with padlock on the trapdoor. Defendants respond that whatever causal connection may have existed between their alleged negligence in placing the sandbox underneath the tree house trapdoor and the injury was broken by the unforeseen, new and independent intervening act of plaintiff’s brother in dropping the milk-box cover which struck the plaintiff. The issue, therefore, is whether defendants should have reasonably foreseen that the alignment of the sandbox and the trapdoor of the tree house would likely result in a child, standing therein, being injured by an object carelessly but intentionally dropped from above. We think not.

The direct and immediate cause of plaintiff’s injury was the careless manner in which his brother dropped the milk-box cover down through the trapdoor of the tree house. Contrary to plaintiffs assertion, it matters not that James Carroll did not drop the cover with the specific intention of hitting the plaintiff, nor that James was legally incapable of negligently doing such an act. Regardless of its own individual legal character, the act of plaintiff’s brother was an independent act and constituted an efficient intervening force which brought about the injury involved. In Driscoll v. Rasmussen Corp., supra, the court held that a defendant could not have reasonably foreseen that in the act of maintaining a trash pile with partially filled cans of paint, a child would spill some of the paint on his clothing and later be injured when coming into contact with fire from an unknown source. There, the proximate cause of the injury was held to be the fire with which plaintiff come into contact and not the defendant’s maintenance of the trash pile with cans of paint in it. Similarly, in Donehue v. Duvall (1968), 41 Ill.2d 377, 243 N.E.2d 222, the court stated that the propensity of small boys to throw things at each other is a matter of common knowledge, but held that if the objects left accessible to them are not inherently dangerous, the resulting harm is not reasonably foreseeable. There, the defendant had maintained a dirt pile on his property without knowledge that glass was embedded in some of the dirt clods. The plaintiff was injured as a result of being hit with a glass-embedded clod thrown by a playmate. The. court held that the proximate cause of the injury was the dirt clod being thrown at plaintiff, an act with which defendant had nothing to do. In the instant case, as in Driscoll and Donehue, the defendants’ maintenance of the alleged dangerous agency could at most be only a remote cause of plaintiff’s injury because from its maintenance the defendants could not have reasonably foreseen the independent force which intervened to bring about that injury.

Stewart v. DuPlessis (1963), 42 Ill.App.2d 192, 191 N.E.2d 622, cited by plaintiff in support of the argument that his injury was foreseeable by defendants, is distinguishable. In that case, plaintiff was struck in the face with a lime “snowball” which one of his playmates had made from a pool of slaking lime at defendant’s construction site. The object left accessible was inherently dangerous and the harm resulting from its being thrown was foreseeable under the holding in Donehue. Moreover, in the instant case, the plaintiff does not assert that the milk-box cover was inherently dangerous or that any liability should be predicated on its being left accessible to plaintiff’s brother. .Instead, he alleges that the natural and proximate cause of the accident was the alignment of the tree house trapdoor and the sandbox. The cause of plaintiff’s injury was not the alignment of the structure, but rather was the act of his brother. If any harm could have been anticipated or foreseen, it did not include the deliberate dropping of the cover. We conclude that the evidence shows as a matter of law that the act of plaintiff’s brother in dropping the milk-box cover was unforeseeable and was the proximate cause of the injury sustained. Therefore, the trial court did not err in granting defendants’ motion for a directed verdict.

In view of die foregoing it is not necessary to consider the further contention of plaintiff that the trial court erred in refusing to allow the testimony of his two expert witnesses. The offers of proof indicated that the testimony of those witnesses would have concerned only the issue of whether the placement of a sandbox under the trapdoor of tire tree house constituted a dangerous agency. Such testimony was not directed to, and could not aid in, establishing that agency as the proximate cause of plaintiff’s injury.

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

Judgment affirmed.

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