text:
    Joy M. Eule, Plaintiff and Counterdefendant-Appellee, v. Rudolph Eule, Defendant and Counterplaintiff-Appellant.
    (Nos. 59075, 59485 cons.;
    First District (3rd Division)
    November 21, 1974.

      Rehearing denied December 19, 1974.

      Goldstein & DuBois, Ltd., of Chicago (Arnold D. Goldstein and Elliott L. DuBois, of counsel, and David Cover, Senior Law Student), for appellant.
    Arthur Rosenblum, of Chicago (Joseph A. Rosin, of counsel), for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant, Rudolph Eule, appeals from a series of orders of the circuit court of Cook County directing him to pay temporary alimony and attorneys’ fees to plaintiff, Joy M. Eule, and her attorneys, as well as temporary alimony pendente lite and attorneys’ fees pendente lite during the prosecution of the appeals to this court. ••

Plaintiff has been married six times. Defendant has been married nine times. The parties have been married to each other three times.

No child was bom or adopted during these three marriages. Plaintiff bore three children by Victor Goulding, to whom she was married twice and whose last marriage immediately preceded the present one. Plaintiff had a fourth child by another husband, and that child was later adopted by Goulding. Plaintiff and Goulding dissolved their second marriage on November 17, 1971, and their divorce decree contained a property settlement.

On the following day, November 18, plaintiff and defendant remarried. Immediately prior to the ceremony in the city of Chicago, the two executed an antenuptial agreement. The document contained recitals acknowledging their previous unsuccessful marriages and recognizing the uncertainity of their pending marriage. The parties stated therein the value of their assets. Plaintiff’s assets, consisting of proceeds from the sale of her house and of securities, totalled $45,000. Defendant attached an exhibit to the agreement detailing his present aggregate worth at death to be $600,000. The agreement contained a death-benefit provision, which guaranteed plaintiff a minimum of $50,000 of defendant’s assets at the latter’s death and which provided $1,000 to defendant at plaintiff’s death from her assets. Hie agreement also contained a forfeiture clause, providing essentially that if either party, regardless of fault, separated from the other or filed a suit for separate maintenance or divorce within 7 years of the date of the marriage, that spouse waived any right he or she might have against the other for "alimony, dower, support or otherwise under any law.” The agreement was signed by both parties in defendant’s attorney’s office, notarized, and witnessed.

Fifty-four days later, plaintiff left their abode and went to Florida. She came back to Chicago in February, 1972, packed her belongings, and returned to Florida.

On February 1, 1973, plaintiff filed an amended complaint for divorce or, in the alternative, separate maintenance, charging mental cruelty. After hearings were held on plaintiff’s motion for temporary alimony and attorneys' fees, the trial court ordered defendant to pay her $167 per week for temporary alimony and support and $3,050 to her attorneys for temporary fees. Defendant appealed the trial court’s denial of a motion to vacate that order. Thereafter, the court ordered defendant to pay $167 per week in temporary alimony pendente lite and additional attorneys’ fees of $1,500 pendente lite. Defendant appealed from that second order. Defendant then filed a counter-complaint for divorce, charging desertion, and the court awarded plaintiff temporary alimony in the amount of $750 per month not to exceed 6 months and her attorneys $1,000 to defend against the counter-complaint. When defendant appealed from this third order, the court granted plaintiff temporary alimony pendente lite in the amount of $750 per month not to exceed 6 months and attorneys’ fees of $1,500. Defendant also appealed from this order, and the four appeals have been consolidated for our review.

Defendant contends that the trial court erred in refusing to enforce the forfeiture clause of the antenuptial agreement; that the trial court abused its discretion in granting plaintiff temporary alimony, temporary alimony pendente lite, her attorneys’ fees, and her attorneys’ fees pendente lite; and that the hearings were not conducted in a fair and impartial manner consistent with the requirements of due process. Plaintiff responds that the antenuptial agreement is void as against public policy; that the trial court’s decisions as to temporary alimony and attorneys’ fees were proper and supported by the evidence; and that the hearings were conducted fairly and without substantial prejudice to defendant.

We must first consider the issue of the validity of the forfeiture clause contained in the antenuptial agreement.

Persons competent to contract may execute an agreement prior to marriage settling in advance the rights of the respective spouses in the property of each other at the date of either’s death. (Seuss v. Schukat (1934), 358 Ill. 27, 192 N.E. 668.) Marriage is sufficient consideration for such a contract. (Guhl v. Guhl (1941), 376 Ill. 100, 33 N.E.2d 185.) The validity of such a contract depends upon whether the parties have knowledge or reasonably ought to have knowledge of the extent of each other’s property, mindful that one’s waiver of rights in the other’s property or the grant of a disproportionate sum in his property shall raise a rebuttable presumption of concealment. Megginson v. Megginson (1937), 367 Ill. 168, 10 N.E.2d 815.

Whether or not these principles of law should be applied to a premarital agreement which attempts to regulate or modify statutorily created rights upon the separation or divorce of the spouses is an issue which has created much debate. Characterizing such a clause as an invitation to promote discord and instability in marriage, the majority of jurisdictions hold a provision which attempts to modify such statutory rights to be invalid per se. (See Norris v. Norris (Iowa 1970), 174 N.W. 2d 368; Fricke v. Fricke (1950), 257 Wis. 124, 42 N.W.2d 500; Crouch v. Crouch (1964), 53 Tenn. App. 594, 385 S.W.2d 288.) The trend in the law, however, is for courts to analyze the terms of these clauses on a case-to-case basis and uphold their validity if they are fair and reasonable. (See Posner v. Posner (Fla. 1970), 233 S.2d 381; Unander v. Unander (Ore. 1973), 506 P.2d 719; Buettner v. Buettner (1973), 89 Nev. 39, 505 P.2d 600.) As shall be seen later, this court’s decision in Volid v. Volid, infra, places Illinois in agreement with the recent trend.

The issue that must be resolved by us in the present case is a narrow one — whether the trial court was correct in refusing to enforce the forfeiture clause of the antenuptial agreement insofar as it waived either spouse’s right to support or temporary alimony during the marriage, if the marriage broke down within 7 years of the date of the wedding.

Courts in this state have consistently held void clauses in post-nuptial agreements which attempted to avoid the husband’s legal duty of support during marriage. (Threw v. Threw (1951), 410 Ill. 107, 101 N.E.2d 515; Berge v. Berge (1937), 366 Ill. 228, 8 N.E.2d 623.) Logic dictates that the same result shall occur when such a clause is included in an antenuptial agreement. (See Lindsay v. Lindsay (Fla. App. 1964), 163 S.2d 336.) By the very wording of the clause in this case, if either spouse, regardless of fault, separated from the other within 7 years of marriage, he or she gave up her statutory right to seek support or temporary alimony. We believe the trial court was correct in refusing to enforce this forfeiture clause in regard to temporary support and alimony.

Defendant relies upon Volid v. Volid (1972), 6 Ill.App.3d 386, 286 N.E.2d 42, in his effort to support his position. In that case the parties entered an agreement prior to marriage in which they specified that in the event of a decree of separate maintenance or divorce the husband would pay to his spouse a lump sum settlement of $50,000 if the decree were entered after 3 years. The lump sum settlement was in lieu of her rights to property, alimony and support. When the husband filed suit for divorce after the 3-year period, the wife counter-claimed for separate maintenance and successfully sought temporary support. This court upheld the agreement, and ordered the trial court’s allowance for temporary support to be deducted from the lump sum settlement agreed to by the parties.

Volid indicates that a trial court may be bound to enforce a total waiver of temporary alimony and support where the agreement guarantees a fair and equitable lump sum settlement of the parties’ statutory rights upon the issuance of a decree of separate maintenance or divorce. A reading of the case shows that the court enforced the contract primarily because of the “generous provision” contained in it which probably provided “more ultimate support” than a court would have mandated absent such an agreement.

In the present case, the forfeiture clause waived all right to alimony and support, temporary and permanent, if the marriage failed within seven years of marriage. No settlement was provided guaranteeing the wife an equitable settlement in lieu of the waiver. Moreover, although the contract in Volid was geared to the entry of a court decree of separate maintenance or divorce, the clause in the instant case would bar the wife’s right to support even in the event of a separation absent such a decree, regardless of fault. In our opinion, the forfeiture clause represents an attempt by defendant to relieve his duty of support to his wife during marriage, and it must fail.

Consequently, we conclude that the trial court was correct in holding that the clause did not stand as a bar to the entry of an order granting temporary alimony to plaintiff. We express no opinion at this time regarding the validity of the clause in respect to its attempt to waive permanent alimony.

Defendant’s next argument is that the trial court erred in granting plaintiff temporary alimony, temporary alimony pendente lite, temporary attorneys’ fees, and temporary attorneys’ fees pendente lite. The crux of his position is that the trial court refused him the right to show that plaintiff possessed sufficient assets to support herself and to pay her own attorneys’ fees.

When the trial court commenced a hearing on plaintiff’s first application for temporary alimony and fees, she testified that except for some furniture she owned in an apartment she occupied in Florida, she had no assets. According to plaintiff, her living expenses were being furnished by her ex-husband Goulding and by unsecured, written loans from her brother, Jay Gale.

Defense counsel then attempted to show that her testimony was in direct conflict with the Goulding divorce decree entered the day before plaintiff’s marriage to defendant and to the execution of the antenuptial agreement. In the Goulding decree, the court expressly found that Goulding owed plaintiff $6,500, that she was to be awarded two automobiles, and that she was entitled to all monies from the sales of certain real estate located in Highland Park, In the antenuptial agreement, plaintiff swore that her assets totalled $45,000, consisting of $40,000 from the sale of the real estate plus $5,000 in securities. The trial court sustained plaintiff’s objection to the introduction of these documents. However, plaintiff’s counsel was permitted to examine defendant regarding his statement of assets attached to the antenuptial agreement.

At the close of the hearing, the court found defendant received $25,000 per year salary from his importing business; that his net disposable income after taxes from all sources was $18,500; that plaintiff “needs” $167 per week for alimony and support; that plaintiff’s attorneys were entitled to $3,050; that the “unrebutted” testimony of the plaintiff was that she was without assets and was unemployed; and that defendant “admittedly” had $600,000 in his estate.

An award of temporary alimony rests within the sound discretion of the trial court, to be reversed only upon evidence of an abuse of discretion. Such an award is authorized by section 15 of “An Act * * * in relation to divorce” (Ill. Rev. Stat. 1971, ch. 40, par. 16), which provides in part:

“[I]n every suit for a divorce the wife or the husband when it is just and equitable, shall be entitled to alimony during the pendency of the suit, provided that no order or decree for alimony shall be entered until the court has determined from evidence the condition in life of the parties and their circumstances.”

To properly determine the “condition in life of the parties,” the order must be based on a showing of tire income and assets of both parties. (Rabin v. Rabin (1965), 57 Ill.App.2d 193, 206 N.E.2d 850; Goldstine v. Goldstine (1960), 25 Ill.App.2d 319, 167 N.E.2d 30.) In determining temporary support during the suit, the amount of the award is not limited solely by defendant’s income; the amount of property possessed by him may also be considered. Roback v. Roback (1965), 59 Ill.App.2d 222, 207 N.E.2d 130; see also Harding v. Harding (1892), 144 Ill. 588, 32 N.E. 206.

In our view, the trial court abused its discretion in awarding plaintiff temporary alimony and attorneys’ fees without first admitting and considering the two exhibits presented by defendant. The exhibits not only tended to impeach plaintiff’s testimony that she lacked any assets but also constituted substantive evidence that she had assets. The court was duty-bound to explore and evaluate in full plaintiff’s financial condition. The statute does not permit automatic support for a wife, no matter how large her husband’s financial resources may be, if she is financially capable of providing for herself. The trial court erred in failing to explore plaintiff’s financial resources.

We recognize that at a subsequent hearing for temporary support and attorneys’ fees following defendant’s filing of a counter-complaint for divorce, conducted some 4 months after the first award had been entered and after two appeals had been filed in this court, the trial court allowed the Goulding divorce decree and antenuptial agreement to be admitted into evidence. However, even at that hearing, the record does not indicate that the court considered the contents of the exhibits. At one point, the court stated that all it wanted to know “is what can he give her, what she needs, that’s all.” During argument, plaintiff’s counsel repeated the same theme. This does not reflect proper consideration of plaintiff’s financial status.

It is our belief that the testimony of plaintiff and her brother was so important that a specific finding regarding the content of their testimony was necessary to sustain the court’s awards. Plaintiff’s testimony contradicted both the court’s holding in the Goulding divorce decree and her sworn statement in the antenuptial agreement that she had the legal right to the proceeds of the sale of the Highland Park real estate. Both she and her brother contended that the proceeds were being held by the brother in an oral trust agreement for the benefit of her children. However, the brother’s deposition testimony, admitted into evidence by stipulation, revealed that he was unsure of his precise legal role in handling the money. Although the proceeds were supposedly held in trust, the brother admitted that he kept the cash in his safety box and that several thousand dollars were loaned to plaintiff in unsecured and unwritten transactions to be repaid whenever she could. Certainly, the possibility that the trust was a sham transaction needs to be resolved.

We believe that the court did not explore sufficiently the trust arrangements so as to delineate plaintiff’s financial condition. Although the evidence fully supports the conclusion that defendant is in a position to pay reasonable temporary alimony and attorneys’ fees, the evidence does not at the same time show that plaintiff is necessarily entitled to them. A full and orderly hearing should resolve the question.

In view of our holding, it is unnecessary to consider defendant’s final contention that the hearings were not conducted in accordance with due process.

Far the reasons stated, the orders of the circuit court of Cook County are reversed and the cause is remanded for a hearing not inconsistent with the holdings of this opinion.

Reversed and remanded.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE KECHENMACHER.

license: Public Domain

text:
    Walter H. Smith et al., Plaintiffs-Appellees, v. National Drag Racing Enterprises, Inc., Defendant-Appellant.
    (No. 73-181;
    Second District
    November 27, 1974.

      Jacobs, Williams & Montgomery, of Chicago (Barry L. Kroll and C. Barry Montgomery, of counsel), for appellant.
    Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellees,
   Opinion by

Mr. JUSTICE KECHENMACHER.


author: Mr. JUSTICE ALLOY

text:
    Shirley Vollentine, Plaintiff-Appellant, v. D. Christoff, Defendant-Appellee.
    (No. 73-260;
    Third District —
    November 14, 1974.

      Rehearing denied January 7,1975.

      Louis E. Olivero, of Olivero & Olivero, of Peru, for appellant.
    Gates W. Clancy, of Geneva (James Mills, of counsel), for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court;

This is an appeal from a judgment of the Circuit Court of La Salle County in favor of defendant Dr. D. Christoff following a directed verdict entered by the court at the close of the evidence for plaintiff Shirley Vollentine. The direction of verdict was substantially based on the lack of evidence as to standards of dental service, of the character involved, in the community. The cause before us arose as a result of a complaint by plaintiff Shirley Vollentine which charged negligence, fraud, and breach of contract against Dr. Demeter Christoff. The action involved a so-called mouth-reconstruction service performed for plaintiff by the defendant dentist.

From the record, it appears that after a few continuances at the request of both parties, the trial date in this action was set for June 8, 1973. Plaintiff and her counsel had apparently kept Dr. Murdock advised of the pending trial and he had indicated that he would appear when the date was set for June 8. Ostensibly, plaintiff did not desire to subpoena the doctor until it was clear when he would be needed, in view of the delays on several occasions and the problem of the doctors own schedule. Defense counsel asked for a delay from June 8, a Friday, until Monday, June 11. A subpoena for Dr. Murdock was not issued until Monday, June 11, when the voir dire examination of jurors began. Plaintiff also stated that this was the first notice to plaintiff’s attorney that Dr. Murdock had presumably left for Minnesota for at least a week’s vacation. Neither plaintiff nor the attorney for plaintiff knew that the doctor intended to leave in the near future.

A motion for continuance, supported by affidavit, was made in the trial court and was heard by the trial court on June 12. Other evidence to be presented by plaintiff had been concluded. In the affidavit in support of the motion for continuance, the attorney for plaintiff pointed out that Dr. Murdock was the dentist who treated plaintiff after defendant had performed his service and that only Dr. Murdock had the unique knowledge of the circumstances surrounding plaintiff’s condition and the permanent aspects thereof as well as deficiencies in the treatment by defendant. Affiant asserted that he used all diligence to prepare for the trial of the action and caused a subpoena duces tecum to be issued for the service of Dr. Murdock. No return of such service was made apparently because Dr. Murdock had been temporarily absent and was somewhere in the State of Minnesota. The affidavit of the attorney stated that he could not anticipate that this situation would arise and that the witness was not absent with the attorney’s consent or connivance or procurement. The affidavit continued that the testimony of Dr. Murdock was necessary to plaintiff’s case; and that without the testimony of Dr. Murdock, the plaintiff could not safely proceed with the trial of this case. It was also asserted that the need for the continuance did not arise out of any failure of plaintiff or the affiantattorney to exercise reasonable diligence with respect to the cause since plaintiff and the attorney were prepared to go to trial on June 7, 1973. The motion for continuance requested a continuance only until Monday, June 18, from June 12, at which time the attorney stated he believed and expected he could procure the attendance of the witness Dr. Murdock. It was also asserted that the continuance was sought, not for the purpose of delay, but in order that justice may be done.

From the record it was shown that plaintiff, age 26, sought the services of defendant dentist to correct a congenital defect in her mouth structure. She had only 22 teeth instead of the usual 32 and there were various gaps between her teeth. She complained that this caused her social problems. Defendant dentist advised her that he could use bridge work and reconstruct the mouth to achieve the desired appearance. He indicated, according to the complaint, that he would close the gap between the front upper teeth and do certain other work. It was asserted in the complaint that the work was done improperly and not in accordance with the agreement, and that it thereafter required a complete correction of defendant’s work by another dentist. She testified that Dr. Murdock examined and treated her and made the necessary corrections and was the one who was able to testify as to his findings and as to the work which was done. It was thus obvious that Dr. Murdock was the key witness in support of the claim of plaintiff and was also able to testify as to the condition of the mouth and teeth after defendant had done his work.

The basic question before us, therefore, is whether the court properly denied the continuance requested by plaintiff. It is notable -that if a party desires a delay in a trial, he may request a continuance from the court under the provisions of section 59 of the Civil Practice Act (Ill. Rev. Stat. 1973, ch.-110, par. 59). The rules governing continuances are specified in Supreme Court Rule 231 (Ill. Rev. Stat. 1973, ch. 110A, par. 231). We have recently examined the issues in the case of Reecy v. Reecy, 132 Ill.App.2d 1024, 271 N.E.2d 91 (Third Dist. 1971) and there we noted the general rule that the granting or denial of a motion for continuance was in the sound discretion of the court and would not ordinarily be reversed unless there is an abuse of discretion. Cases generally establish that the moving party must show that the evidence sought is material and that due diligence had been exercised, but that nevertheless the party asking for the continuance has been unable to obtain the desired evidence or witness at the time of the motion. We are also aware of Supreme Court Rule 231(f) in which it is provided that no motion for a continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay. But we also observed in Reecy (132 Ill.App.2d 1024, 1027) that “the court should not refuse a continuance where the ends of justice clearly require it and an abuse of discretion in so doing will justify a reversal.” The Supreme Court of this State in Lindeen v. Illinois State Police Merit Board, 25 Ill.2d 349, 352, 185 N.E.2d 206, stated:

“While we are hesitant to review the discretion of a trial court or board in denying a continuance, we think that under the cir-cumstances of the present case, justice demanded that Captain Lindeen be given a reasonable opportunity to procure the attendance of a witness vital to his defense.”

In that case, the denial of the continuance was the basis of a reversal and the court decreed that there was an abuse of discretion in denying such continuance. The court also observed in the case and quoted as follows from Krupinski v. Denison, 9 Ill.App.2d 155, 159, 132 N.E.2d 451 (1956):

“In the exercise of this board discretion, the Trial Court is, however, required to act judiciously with due regard for the objective of attaining justice. Where it appears that such principle has been disregarded, a reversal is justified.”

The Krupinski case bears some resemblance to the situation in the present case in that in Krupinski (a Third District case) the trial had been set for February 21, 1955, and the doctor whose expert testimony was required had arranged his appointments to be available to the court. However, at the last moment, the court reslated the case for February 23 and the doctor could not make it. A continuance was denied which resulted in the reversal. The argument was made in that case that plaintiff’s failure to have a subpoena served upon the doctor evidenced a lack of diligence on the part of plaintiff. The court there said:

“While fully subscribing to the principle that trial courts should refuse to tolerate applications for continuances designed only to delay the administration of justice, we deem it equally important to observe that no litigant should be foreclosed of his right to a day in court merely because circumstances beyond his control impel his request for a continuance.” 9 Ill.App.2d 155, 160.

Under the facts before us, plaintiffs were apparently ready for trial on Friday, June 8. It was delayed until the following Monday, June 11, at the request of defendant. As a result of the unanticipated unavailability of Dr. Murdock, plaintiffs request for a continuance was simply made for a brief period (until the following Monday, June 18, after the case had proceeded until Wednesday, June 12). Dr. Murdock’s testimony was certainly indispensable to plaintiff’s case, and the denial of the continuance under all the circumstances appears to be inconsistent with the objective of giving plaintiff a reasonable opportunity to procure the attendance of the witness who was essential to her case. The ends of justice clearly require that a continuance be granted under the circumstances in this case, and we consequently conclude that the trial court abused its discretion in denying such motion for continuance until the' following Monday.

In view of our determination it is not necessary that we discuss any of the other issues in the case, for the reason that this cause will be reversed and remanded to the trial court for retrial.

The judgment of the circuit court of LaSalle County is, therefore, reversed and this cause is remanded for new trial.

Reversed and remanded.

STOUDER and DIXON, JJ., concur.


author: Mr. PRESIDING JUSTICE EGAN

text:
    Marilyn Hassiepen et al., Plaintiffs-Appellants, v. John C. Marcin, City Clerk of the City of Chicago, et al., Defendants-Appellees.
    (No. 58787;
    First District (1st Division)
    November 18, 1974.

      Morton Siegal, of Chicago (Allan Goldberg, of counsel), for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Dennis James Stolfo, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

Petitions were circulated in the 7th Precinct of the 8th Ward of Chicago for a “local option” referendum on the proposition prohibiting retail sale of alcoholic liquor in that precinct. (Ill. Rev. Stat. 1971, ch. 43, par. 169.) John C. Marcin, the city clerk, certified to the Board of Election Commissioners that petitions pui-porting to be signed by 25% of the voters of the precinct had been filed in his office. The plaintiffs filed a complaint to contest the validity of the petitions and to enjoin the city clerk and the Board of Election Commissioners from submitting the proposition to the voters. After a hearing, the court declared the petitions valid and ordered the proposition placed on the ballot for the November, 1972, election.

There were 393 registered voters in the precinct at the last general election preceding the filing of the petitions. One hundred and twenty-two signatures were filed, and the court held that 17 signatures were invalid, leaving 105 signatures, or 6 more than were legally required. The court struck 13 signatures out of 25 from one sheet; and the entire case hinges on the correctness of the court’s refusal to strike all 25. If it had, the number of valid signatures would have been reduced to 93, or 6 less than the required number.

The sheet in question contained the following jurat:

. “I, Willie Mae Riddle, do hereby certify that I reside at Number 8050 South Luella Avenue, in the 7th Precinct of the 8th Ward (as the said precinct existed as of the last General Election) in the City of Chicago, County of Cook and State of Illinois; that the signatures. of this sheet of the foregoing petition are genuine and that to the best of my knowledge and belief the persons so signing were at the time of signing said petition legal voters in the 7th Precinct of the 8th Ward of Chicago, Illinois, as the said precinct existed as of the last General Election, and their respective residence addresses are correctly stated therein and that each signer signed the same on the date set opposite his name.”

The jurat then contains the signature of Wilhe Mae Riddle as the signature of the person making the affidavit.

The plaintiffs presented no evidence that the persons whose names appeared on the petition did not in fact sign it and presented no evidence that the persons whose signatures appeared on the petition were not in fact residents of the precinct. Indeed, one of the plaintiffs, Marilyn Hassiepen, and Gussy Littsky testified that they had signed the petition but that it was circulated by Mae Gladney and not by WiUie Mae Riddle. Wilhe Mae Riddle testified that she was not with Mae Gladney when Mrs. Gladney acquired the first 13 signatures on the petition, but she was the circulator at the time the last 12 persons signed.

Section 4 of article IX of the Liquor Control Act (Ill. Rev. Stat. 1971, ch. 43, par. 169) provides, in part, as foHows:

“No signature shall be valid or be counted in considering the petition unless the form requirements are complied with * * *. At the bottom of each sheet of the petition there shaU be added a statement, signed by a resident of the particular precinct or political subdivision of the State which is affected by the petition with his residence address, stating that the signatures on that sheet of the petition are genuine, and that to the best of his knowledge and befief the persons signing the petition were at the time of signing, legal voters in the political subdivision or precinct, as the case may be, that their respective residences are correctly stated therein and that each signer signed the petition on the date set opposite his name. * # * Whover in making the sworn statement above prescribed shall knowingly and wilfuHy swear falsely, shall be guilty of perjury and on conviction shall be punished accordingly. * * *”

It is the plaintiffs’ position that “since Willie Mae Riddle did not circulate the petition to 13 of the 25 signatures she could not swear under oath that the signatures were genuine or that each signer signed the petition on the date set opposite his or her name as required by statute.”

The plaintiffs’ entire argument is bottomed on their assertion that the statute required that the petition be signed in WiUie Mae Riddle’s presence. As is apparent, the statute does not say so, but the plaintiffs ask us to construe the statute as though it did. Implicit in the plaintiff’s argument is the proposition that a person may not, as a matter of law, attest to the genuineness of a signature unless that person was present when the signature was actuaHy made. Such is not the law. A lay witness may swear to the genuineness of a signature and “it is not esssential that a lay witness should have seen the party write.” (King & Pillinger, Opinion Evidence in Illinois, at 233 (1942).) It has been held that a witness may testify to the genuineness of a signature if he has seen a party write on other occasions, or has seen documents recognized or admitted by the party to be in his handwriting. (Putnam v. Wadley, 40 Ill. 346, Woodford v. McClenahan, 9 Ill. 85. See also Riggs v. Powell, 142 Ill. 453, 32 N.E. 482.) Thus, it is theoretically possible that the circulator may have seen a voter write on a previous occasion or have seen a document acknowledged by the voter to be in his handwriting; or the voter might subsequently have acknowledged to the circulator that the signature on the petition was his. The plaintiffs, upon whom the burden of proof lies, have failed to establish that Willie Mae Riddle under no circumstances could have sworn to the genuineness of the signatures.

Apart from the fatal flaw in the plaintiffs’ major premise, we believe the plaintiffs’ argument must fall for another reason. As noted previously, the plaintiffs would have the statute construed as though it expressly provided that the circulator was required to see the voters sign. It is a primary rule in the interpretation and construction of statutes that the intention of the legislature should be ascertained and given effect. (Western National Bank v. Village of Kildeer, 19 Ill.2d 342, 350, 167 N.E.2d 169.) It is the function of the legislature to prescribe the conditions of the elective process, and it is the obligation of the courts to see that they are complied with. We may not inject provisions not found in a statute, however desirable or beneficial they may be. Droste v. Kerner, 34 Ill.2d 495, 504, 217 N.E.2d 73.

The Liquor Control Act (Ill. Rev. Stat. 1971, ch. 43, par. 94) provides that the Act "shall be liberally construed, to the end that the health, safety and welfare of the People of the State of Illinois shall be protected and temperance in the consumption of alcoholic liquors shall be fostered and promoted by sound and careful control and regulation of the manufacture, sale and distribution of alcoholic liquors.” A strict or technical construction of any of its provisions detrimental to the public interest should be avoided. (Carrigan v. Illinois Liquor Control Com., 19 Ill.2d 230, 236, 166 N.E.2d 574.) The business of selling liquor is not favored; there is no inherent right to carry it on and it may be entirely prohibited. Daley v. Berzanskis, 47 Ill.2d 395, 398, 269 N.E.2d 716.

Other statutes may be referred to in determining legislative intent (Bergin v. Board of Trustees, 31 Ill.2d 566, 574, 202 N.E.2d 489); and we note that the Election Code provides, in part, that a circulator of nominating petitions for elective office must certify that "the signatures on the sheet were signed in [his] presence.” (Emphasis added.) Ill. Rev. Stat. 1971, ch. 46, pars. 7 — 10 and 10 — 4.

It is not unreasonable to assume that the legislature intended, because of the nature of the particular business to be regulated, that the formal requirements for a local option referendum be not as stringent as those for a candidate for election to public office. For these reasons we conclude that the trial court properly entered judgment for the defendants. The judgment is affirmed.

Judgment affirmed.

BURKE and GOLDBERG, JJ., concur.


author: Mr. JUSTICE RECHENMACHER

text:
    Robert Schofield, Plaintiff-Appellant, v. Crandall, Inc., Defendant-Appellee.
    (No. 73-219;
    Second District
    November 25, 1974.

      Schirmer, Schirger, Graf & Beger, of Freeport, for appellant.
    Bert P. Snow, of Freeport, for appellee.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

The plaintiff filed a personal injury suit against Crandall, Inc., a tire manufacturer. Counts I and II were based on express and implied warranty; Count III was under a products liability theory and Count IV was a negligence theory. The jury found the defendant not guilty on each count and the plaintiff appeals on two grounds: (1) that the trial court erred in allowing the jury to view a film depicting an experiment with a tire, which experiment was not similar to the actual occurrence, and (2) that the closing argument of the defense counsel was so improper and prejudicial as to deprive the plaintiff of a fair trial.

The plaintiff is the owner of an automobile service station. In the usual course of business he purchased a retreaded tire from the defendant, whose business included the retreading of all makes of tires — this particular tire not having been originally, manufactured by the defendant. The plaintiff sold this tire to a retail customer and mounted it on a wheel and installed it on the customers automobile. The customer, with .his family, started out on a trip and after a very few miles the tire went flat. The customer called the plaintiff for help and the plaintiff left his shop and went to where the customers car was located on the highway, took the wheel off the car and returned with it to his shop to repair the tire. In the process of inflating the tire to check the trouble, the tire, in the words of the plaintiff, “exploded”, that is, it blew off the changer, flew up into the air and injured the plaintiff’s left arm and finger. The extent of the plaintiff’s injuries is disputed.

The plaintiff’s case appears to be based on the premise that the tire in question was defective when it left the defendant’s plant in that the tire’s beading was broken or partially broken, thus causing it to “explode” off the changer while being inflated. The defendant contended,- however, that the cause of the tire precipitately leaving the changer and causing injury to the plaintiff was that the plaintiff was careless, both in the mounting and in the inflating of the tire; that he inflated the tire far beyond its normal pressure of 32 pounds and that the broken beading and the overinflation caused the tire to leave the changer in the violent manner described by the plaintiff as “an explosion.” Testimony of experts at the trial indicated a probability that some and possibly most of the beading was broken in the original manufacturing process. However, the plaintiff contended the beading was broken at the defendant’s plant in the retreading process, and the defendant testified that in his opinion the beading was broken when the tire was overinflated on the changer by the plaintiff. There was thus a sharp disagreement not only as to when the beading was broken but also as to whether the broken beading was the primary cause of the tire “exploding” off the changer.

To bolster its theory that the tire, even with broken beading, would not come off the changer under normal pressure — estimated at 32 pounds —the plaintiff performed an experiment in which the identical tire was inflated on a similar rim to as much as 45 pounds, without leaving the rim. A film was made of this experiment and the judge allowed it to be viewed by the jury. The judge’s ruling that this film could be viewed by the jury is the plaintiff’s main point of appeal. Plaintiff points out that while experiments have in some cases been allowed to establish a point of evidence, these must be under very similar circumstances to the original circumstances and where the experiment does not conform to the original conditions it cannot be introduced as evidence in any form. (Thomas v. Chicago Transit Authority (1969), 115 Ill.App.2d 476; Mack v. Davis (1966), 76 Ill.App.2d 88.) However, the cited cases and others where experiments have been successfully objected to are all cases where , there were many variables which could not be reconciled with the original situation; moreover, these variables were potentially capable of inducing an entirely different result from the original circumstances. Where the circumstances are essentiaUy the same, such experiments are allowable as evidence and it is generaUy taken to be within the discretion of the trial judge as to whether or not such experiments so nearly approximate the original conditions as to be admissible. (Thomas v. Buchanan (1934), 277 Ill.App. 393; People v. Pfanschmidt (1914), 262 Ill. 411; Downing v. Metropolitan Life Insurance Co. (1941), 314 Ill.App. 222; Hardman v. Helence Curtis Industries, Inc. (1964), 48 Ill.App.2d 42.) In the latter case the appellate court in affirming the trial court’s admission of experimental evidence, at page 54, quoted 20 Am. Jur. Evidence § 758 (1939) (revised edition 29 Am.Jur.2d Evidence § 820 (1967)):

“Evidence may be given of experiments and demonstrations made out of court and not in the presence of the jury upon the same principles which permit experiments to be conducted in the jury’s presence. It is a matter peculiarly within the discretion of the court to decide the admissibility of such evidence in the light of all the surrounding facts and circumstances.”

Speaking generally, the same authority states (29 Am.Jur.2d Evidence § 818 (1967)):

“The courts, although they do not favor the making of tests and experiments by the jury itself, now very generally permit relevant experiments, demonstrations, or tests by others to be performed in court in the presence of the jury, or permit evidence to be given of experiments, demonstrations, or tests performed out of court, when they are made under similar conditions and like circumstances to those existing in the case at issue, for the purpose of aiding the trier of facts, in either a criminal or civil case, in determining the issues of fact.”

It is clear, therefore, that generally speaking evidence of experiments made out of court is admissible if conditions of the experiment are believed by the trial court to be substantially similar even though not identical to the actual circumstances of the case. Identical conditions can rarely if ever be achieved, and it is therefore necessary to allow some latitude to the trial court in determining whether the conditions of the experiment are sufficiently similar to the facts of the actual occurrence to have probative value.

In the case before us there were some variations from the original circumstances. The rim was not the same rim that was on the car originally and it was a different time of year so that the tire might have been colder under the original conditions than when the experiment was conducted. Also, the rate of inflation may have been more rapid in the actual circumstances if, as seems probable, the plaintiff was in a hurry to get back to his stranded customer. There was no precise information as to the sealing lubricants used in either the actual incident or the experiment, so these could have been different. These are variables which the plaintiff contends make the experiment inadmissible. However, the tire was the same tire and the rim was similar. The other variables, the temperature of the tire, the amount of lubricant used and the speed of inflation were all within the control of the plaintiff. On cross-examination plaintiff’s counsel brought out that variables such as the temperature, the amount of lubricant used and the speed of the inflation might affect when — and indeed, whether — the tire would leave the rim. However, it was not established that the conditions of the experiment — controlled conditions as the plaintiff admitted — were abnormal in any way. While certain conditions were not the same as in the actual incident this does not by any means refute the defendant’s claim that the tire in question was capable of being inflated to normal pressure without precipitately leaving the rim and injuring someone working on it. If certain unfavorable conditions existed which were more likely to induce the tire to leave the rim then, since these conditions were within the control of the plaintiff and could have been avoided, the plaintiff can hardly impeach the experiment on the basis that such conditions were not present in the experiment. The purpose of the experiment was to demonstrate that the tire was capable of sustaining a normal inflation without “exploding” off the rim under normal or average conditions. If certain unfavorable external conditions were present and contributed to the accident this does not reflect on the experiment but rather on the plaintiff’s theory that the defective condition of the tire caused the accident. In short, the variances which may have existed in the actual conditions of the incident were not ones the plaintiff can properly complain about, since — if they existed at all — they were plaintiff”s doing and they militate against the theory of a defective product having caused the injuries. In any event, such possible variances do not operate against the probative value of the experiment as to the main issue involved — that is, whether the tire was so defective it would not sustain a normal inflation without leaving the rim.

We note from the record that the trial judge gave careful consideration to plaintiff counsel’s argument in this connection and after due consideration came to the conclusion that it was within his proper discretion to allow the showing of the film. It should be noted that the defendant’s president had testified to the facts and the results of the experiment without objection by the plaintiff’s counsel previous to the showing of the film. It was possibly the evidentiary impact of the film which aroused plaintiffs counsel to object to it rather than its lack of merit as an experiment. While agreeing with the general proposition of law advanced by plaintiffs counsel as to the close scrutiny such experiments are subject to, we are not persuaded therefore that the trial court exceeded his discretion in this instance by permitting the showing of the film.

The plaintiff also complains about two aspects of the defense counsel’s closing argument which he says denied the plaintiff his right to a fair trial. He refers to a remark made by defense counsel to the effect that the plaintiff was "in one awful hurry to get this tire back on.” Defense counsel objects that the defendant himself testified he was not in any hurry; therefore, the remark of defense counsel was outside the evidence and improper as suggesting carelessness due to haste. We are in complete agreement with plaintiffs counsel that "[i]t is the province and duty of the Courts to see that every litigant has a fair trial, free from the prejudicial conduct of counsel who in argument undertakes to supply facts or inferences favorable to his or her client that are not based upon the evidence in the record.” In addition to the cases cited by plaintiff in this connection, see the recent opinion of this court in Geisberger v. Quincy (1972), 3 Ill.App.3d 437, and the case of McWethy v. Lee (1971), 1 Ill.App.3d 80. On the other hand, as stated in Maguire v. Waukegan Park District (1972), 4 Ill.App.3d 800, 805; "Counsel cannot state matters not in evidence, but can urge all reasonable inferences and conclusions which may be properly drawn from the evidence and wide latitude should be allowed.” The evidence adduced at the trial indicated that the plaintiff’s customer, who had purchased the tire in question from the plaintiff tire day before, was stranded on the highway with other persons in the car on a Sunday morning in January. The tire had only been driven a few miles when it went flat, whereupon the customer called the plaintiff to come out and assist him. We do not have the testimony of the plaintiff before us, but we can deduce from the closing argument of defense counsel and objections of plaintiff’s counsel that the plaintiff testified that he was not in any particular hurry to repair the tire. We think, however, that under the admitted circumstances it is a fair inference that plaintiff toas in a hurry. It would hardly be believable that he was not in a hurry to repair and return the tire when his customer with other members of the family were stranded in the car on the highway. We think that in spite of whatever the plaintiff may have said to the contrary it was a fair inference that he was under pressure to repair and return the tire as quickly as possible, and under these circumstances we see nothing so improper in counsel’s remarks as to justify a new trial.

Complaint is also made by plaintiff as to the remark ridiculing the amount claimed as damages as compared with the actual medical and hospital expenses. While this remark was no doubt improper in a closing argument the discrepancy in this case between the medical and hospital biUs (which totaled $189.50) and the ad damnum of $50,000 was indeed very great, and the plaintiff could hardly have expected that no notice would be taken of it. In view of the facts suggested by the record, the remark was not so grossly unfair and prejudicial as to require reversal of the judgment.

The judgment of the trial court is therefore affirmed.

Judgment affirmed.

GUILD and SEIDENFELD, JJ., concur.


author: Mr. JUSTICE CLYDESDALE

text:
    Jon Sanderson et al., Plaintiffs-Appellees, v. De Kalb County Zoning Board of Appeals, Defendant.—(Joseph E. Walsh et al., Defendants-Appellants.)
    (No. 73-353;
    Second District
    November 27, 1974.

      John A. Leifheit, of Leifheit, Cliffe & Engel, of De Kalb, for appellants.
    Charles L. Fierz, of Sycamore, for appellees.
   Mr. JUSTICE CLYDESDALE

delivered the opinion of the court:

Defendants-appellants, Joseph E. Walsh, Jane C. Walsh and ElectroShield Corporation, appeal from the judgment of the Circuit Court of De Kalb County which reversed the action of the De Kalb County Zoning Board of Appeals in granting appellants a variance allowing light manufacturing use in an otherwise agriculturally zoned area.

Four of the five members of the De Kalb County Zoning Board of Appeals met on November 2, 1971, to consider the request of Joseph Walsh that a variance be granted concerning the use of a parcel of land in Clinton Township. The Walshes are the sole owners of the property in question and also the sole owners of Electro-Shield Corporation. They took possession of the land on October 15, 1968. Appellees, Sanderson and wife, owned an adjoining parcel of land which they acquired in March of 1968. Prior to October 15, 1968, the Walsh’s land had been devoted to a variety of nonconforming uses. These included manufacturing, drafting, research and development, a lumber yard, a hardware store, chemical research and a prefab housing section manufacturing facility. The record is silent with regard to the order and chronological use of the land prior to the Walsh’s acquisition thereof except that it does indicate that the property may have been used to manufacture prefab housing at the time the appellants and appellees purchased their respective parcels of land. Sandersons allege, however, that the nonconforming use had terminated and that the continued operation of this business was without a permit and without a proper variance having been granted.

Walsh requested that the De Kalb County Zoning Board of Appeals grant he and his wife and the Electro-Shield Corporation a 10-year variance to permit light manufacturing, vacuum forming, laminating and trimming of plastic products. In addition, they sought permission to construct living quarters for himself and his wife and to construct an additional manufacturing building not in excess of 10,000 square feet.

Pursuant to the De Kalb County Zoning Ordinance, the Board unanimously voted to grant the variance but failed to make any findings of fact specifying the reasons for its issuance as required by the ordinance. The plaintiffs-appellees, who had objected to the variance at the hearing, filed a complaint for administrative review. The circuit court reversed the decision of the Zoning Board of Appeals but did not remand the cause and ordered that the Walsh’s property henceforth be used for uses permitted by the “F” (agricultural) zoning classification of the De Kalb County Zoning Ordinances.

Paradoxically both sides to this controversy agree that the decision of the Zoning Board of Appeals can not stand. Their differences arise over the disposition arrived at by the circuit court.

Appellants contend upon appeal: (1) That the court exceeded its power under the Administrative Review Act when it limited further use of the property to agricultural uses, and (2) That the court should have remanded the cause back to the Zoning Board of Appeals for further hearings and findings of fact as required by the De Kalb County Zoning Ordinance.

Appellees argue that the appellants cannot raise a point on appeal which was not raised in the trial court. (People v. Bybee, 9 Ill.2d 214, 222, 137 N.E.2d 251; Zelney v. Murphy, 387 Ill. 492, 56 N.E.2d 754.) Simply stated they allege that since the appellants failed to raise the question of the court exceeding its power in the lower court, they should be prevented from arguing it on appeal. Appellants point out that the lower court reviewed the proceedings before the administrative body solely from the record of that body and that until the entry of the court’s order, which included the language further restricting the use of the property, there could not be any objection. Appellants promptly filed a motion to vacate which did not specify the grounds for vacating the judgment.

We do not agree with the argument advanced by the appellees. Although a litigant may be bound by some action he has taken or failed to take, we do not believe that a strict application of this rule of law should apply in the instant case. A combined reading of Illinois Supreme Court Rules 341(e)(7) and 366(a)(5) allows a reviewing court to act on its own motion to reach a just result and a uniform body of precedent. (Hux v. Raben, 38 Ill.2d 223, 230 N.E.2d 831; Wozniak v. Segal, 56 Ill.2d 457, 308 N.E.2d 611.) In the case before us, we believe that justice and fairness requires us to examine appellant’s contentions.

Appellants argue that their land had a nonconforming use status prior to the request for the variance and the circuit court erred when it denied the variance and ordered the land to be henceforth used only for “F” agricultural purposes. Appellants admit that the Zoning Board of Appeals failed to comply with section 3.1 of “An Act in relation to County Zoning” (Ill. Rev. Stat. 1971, ch. 34, par. 3154) and with the DeKalb County Zoning Ordinance, art. 18, par. 3, p. 56, in that it failed to specify the facts or to list the reasons for granting the variance. They further admit that the Board’s decision cannot stand. They assert, however, that the circuit court’s order restricting then.' land to agricultural uses constituted an impermissible new or independent remedy in excess of the authority granted the court by the Administrative Review Act. (Ill. Rev. Stat. 1971, ch. 110, par. 275; Krachock v. Department of Revenue, 403 Ill. 148, 85 N.E.2d 682; Strohl v. Macon County Zoning Board, 411 Ill. 559, 104 N.E.2d 612.) The contention indeed has merit if appellant’s property had never lost its nonconforming use status prior to the Board’s decision. Such a use cannot be taken away except where necessary for the public health, comfort, safety or welfare. (Village of Lake Bluff v. Horne, 24 Ill.App.2d 343, 164 N.E.2d 217.) A nonconforming use may be abandoned, but the owner must intend to abandon it. A nonconforming use is a property right which if taken away in an unreasonable manner, or in a manner not grounded on public welfare, would be invalid. (McCoy v. City of Knoxville, 41 Ill.App.2d 378, 190 N.E.2d 622.) Furthermore, purchasers of property constituting a nonconforming use who had knowledge of the ordinance are entitled to the same rights under the ordinance as their grantors. Schneider v. Board of Appeals, 402 Ill. 536, 84 N.E.2d 428.

The difficulty with the present case arises from the fact that the record does not clearly disclose whether the use of appellant’s property constituted a nonconforming use and, if one existed, what it was. The transcript of the Board’s proceedings indicate that the Board apparently thought that there was a nonconforming use for the construction of prefab homes. Appellee, Sanderson, denied the activity at the hearing before the Board but admitted that if it did exist it was without a permit and without a proper variation. The circuit court, in rendering its decision, apparently gave no thought to the possibility of a nonconforming use existing upon appellant’s property. And while the circuit court had the power to reverse the Board for not mating findings of fact under the Administrative Review Act, the Act does not confer authority upon the court to eliminate an existing nonconforming use simply because a zoning board of appeals fails to grant a variance upon proper findings of fact.

In light of the uncertainty concerning the Board’s reasons for granting the variance and the uncertainty as to the land’s prior use, the order of the circuit court should be reversed and the cause remanded.

The statutory power of the circuit court is clearly defined in section 12 of the Administrative Review Act (111. Rev. Stat. 1971, ch. 110, par. 275), and those portions thereof relevant to our case read as follows:

“(1) The Circuit Court shall have power:
# # £
(e) to affirm or reverse the decision in whole or in part;
(f) where a hearing has been held by the agency, to reverse and remand the decision in whole or in part, and, in such case, to state the questions requiring further hearing or proceedings and to give such other instructions as may be proper;
(g) where a hearing has been held by the agency, to remand for the purpose of talcing additional evidence when from the state of the record of the administrative agency or otherwise it shall appear that such action is just. * * *”

The circuit court has the power to remand but it is discretionary not mandatory. (Watson v. Civil Service Com., 28 Ill.App.2d 424.) However, when the record of an administrative agency is clearly inadequate, the case should be remanded to the agency in accordance with section (g) of section 12, supra. Sgro v. City of Springfield, 6 Ill.App.3d 478, 285 N.E.2d 589.

In the instant case, the circuit court’s ground for reversal was the Board’s failure to make the fact findings required by the De Kalb County Zoning Ordinance. We cannot fault the court for this finding because the Board was clearly in error for its failure to make findings of fact in support of its decision. However, the court overlooked the fact that the four-man board voted unanimously in favor of the variance after hearing all the evidence and the arguments on both sides. We are of the opinion that the court abused its discretion in not ordering remand.

■ To affirm the lower court’s decision to simply reverse would prejudice the appeHant’s right to have the Board set forth its reasons and findings of fact to substantiate its decision to grant a variance. To remand would also accomplish the added purpose of clarifying the non-conforming use issue. This issue was not argued before the circuit court and is in any event a question of fact for agency determination. The Board should be able to quickly and fairly resolve these issues by holding another hearing and issuing proper fact findings in support of their decision.

The order of the circuit court is reversed and the cause remanded to the De Kalb County Zoning Board of Appeals for further proceedings consistent with these views.

Judgment reversed.

G. MORAN, P. J., and CARTER, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George R. W. James, Defendant-Appellant.
    (No. 12367;
    Fourth District
    November 27, 1974.

      John F. McNichoIs and John L. Swartz, both of State Appellate Defender’s Office, of Springfield, for appellant.
    Richard J. Doyle, State’s Attorney, of Danville (John R. McClory, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The defendant appeals from a conviction of burglary of a school building and his sentence by the circuit court of Vermilion County to the penitentiary for 5 to 15 years. Two issues are raised in this court. They are: (1) does the evidence establish the guilt of the defendant beyond a reasonable doubt, and (2) did evidence of previous entries of this school building stricken by the court so prejudice the defendant that a new trial is warranted? We answer the first question “yes” and the second question “no.”

The chronology of events are briefly as follows. Officer Wilson testified that about 4:30 A.M. on November 17, he was on patrol and noticed a broken window in the boiler room of the Pine Crest School in Georgetown. He entered the building and heard glass breaking at the other end of the school. He found a window broken into a classroom and then heard glass breaking and found a window broken to the outside. He returned to the school later with the chief of police. Their testimony is practically the same. They observed footprints in the mud below the broken window, and followed the footprints through the mud across the grass. These footprints were clearly visible because there had been frost that morning and the grass clearly showed where someone had stepped. They followed the tracks to a gate and fence where there was mud on the gate slats, then proceeded across some gravel and into high grass some 150 yards to a couple of farm buildings. Along the route they observed slices of bread and crumbs. They followed a straight path' to the barns and found a slice of bread along the side of one. They heard snoring. They observed a stack of hay bales in one of the buildings and the snoring appeared to come from there. Officer Wilson ripped off two boards from the side of the bam to gain access and the snoring stopped. They removed some corrugated tin from the stack of bales and the defendant’s head popped up. He was advised that he was under arrest for the burglary of the Pine Crest School and they advised him of his rights. Tire police chief testified that he told Wilson to put handcuffs on the defendant and to be careful because the defendant “probably had guns with him.” Objection to this statement was made and the court sustained the objection and stated that he would advise the jury to disregard the witness’ remarks. No such instruction appeal's in the record. The officers found a shotgun, a rifle, a case of chocolate milk, a box of Velveeta cheese, a plastic bag with some cookies, two blankets and a pillow. The defendant stated to Officer Wilson something to the effect that “You’re lucky, baby face. One step closer earlier this morning and you’d have been a dead mother * * Emphasis supplied.

The school superintendent testified that he arrived at the school about 5 A.M. after being advised of a break-in, found the broken windows, that some foodstuff was missing, namely, milk, that an attempt had been made to remove a merchandising machine from the wall in the girls’ washroom, and stated that blankets which had been kept in the nurse’s room had been missing on the preceding day. On cross-examination, it developed that the superintendent could not truthfully testify that he had any personal knowledge of presence of milk, blankets or anything of that type in the building, and that he had last been in the building on the morning of the day before, after a prior break-in. On motion his testimony was ordered stricken and the jury instructed to disregard it.

It is thus clear that the defendant’s connection with this crime must rest entirely on circumstantial evidence and the statement he made to the police officer. There is no direct evidence that he was ever in the building or that any of the property he had with him was ever present in the school building. This being true, the defendant argues that there is nothing in this record to connect him with the crime. In so doing, he overlooks circumstantial evidence from which a jury could reasonably conclude that it was he who entered the building. He urges that the evidence fails to establish a commission of burglary because it failed to show that even if an entry had been made by the defendant, it does not show that he did so with the intent to commit a theft. Counsel for the defense however concedes that People v. Johnson, 28 Ill.2d 441, 192 N.E.2d 862, states the correct rule as to the question of intent. It is there stated at page 443: “Intent must ordinarily be proved circumstantially, by inferences drawn from conduct appraised in its factual environment. We are of the opinion that in the absence of inconsistent circumstances, proof of unlawful breaking and entry into a building which contains personal property that could be the subject of larceny gives rise to an inference that will sustain a conviction of burglary. Like other inferences, this one is grounded in human experience, which justifies the assumption that the unlawful entry was not purposeless, and, in the absence of other proof, indicates theft as the most likely purpose. This conclusion is supported by the decisions of other courts. [Citations.]” This case and the case of People v. Morris, 7 Ill.App.3d 1055, 289 N.E.2d 73, are conclusive of the issue of intent.

The records indicate that tire police officer saw a broken window in the school building, entered the building and heard some glass breaking, found an outside window broken, found mud on the window sill, and found tracks in the mud and grass marked by a trail of bread and crumbs leading inexorably towards one of the bams. There they found the defendant with a case of chocolate milk, cheese, and bread. While there is no direct proof that the property came from the school building, jurors do not lose their God-given senses when they sit as jurors and it is not unreasonable for the jury or this court to conclude that it is at least unusual for one found under die circumstances of this defendant to have a case of chocolate milk, nor is it unreasonable to conclude that these are items frequently and normally found in and about a school building or school cafeteria. The defendant provided the key to his own guilt when he stated to the police officer, “You’re luck, baby face.' One step closer earlier this morning and you’d have been a dead mother * * Corroborated by the chief of police, this police officer ties this defendant to the school building and as the one that was in the school building that morning when he voluntarily stated “* * * One step closer earlier this morning and you’d have been a dead mother ® (Emphasis supplied.) This statement puts a rather high polish on the circumstantial evidence leading this defendant from the inside of the school building to the barn. While we cannot understand why the blankets and the pillow were not properly identified by the State as school property as would seem to be readily possible, that evidence was not before the jury nor do we consider it in our determination of the innocence or guilt of this defendant.

It is likewise urged that the reference to prior break-ins was highly prejudicial as well as the admission of the firearms and the foodstuff. It .is of course fundamental that evidence of other crimes is not competent to prove the charge in an unrelated indictment and is ordinarily not admissible. In the intant case, it is clear from this record that the fact of a prior break-in was contained in the school superintendent’s statement and it was neither charged, argued or asserted that the defendant was in any way connected with it, but was offered in connection with the testimony of the superintendent to show knowledge of a previous condition of the building. His entire testimony was ordered stricken by the trial judge and the jury instructed to disregard it. The reference to the firearms in the testimony was made to correctly indicate the physical and material things surrounding the defendant at the time he was discovered and certainly had no direct bearing on his innocence or guilt of this particular burglary. The defendant however probably made them admissible by his own statement to the police officer about “being a dead mother * * * ” and his capacity to cany out that threat. None of these physical elements were offered into evidence to establish a separate and distinct crime, but were elements from which the jury might draw reasonable conclusions . that it was this defendant who had committed the burglary which he is here charged. Circumstantial evidence is good evidence and unless there are circumstances contradicting the reasonable inferences and conclusions drawn by the jury from such circumstantial evidence, their determination should not and cannot be disturbed. We do not have a situation here such as appeared in People v. Soznowski, 22 Ill.2d 540, 177 N.E.2d 146, where the supreme court concluded that a beating of a sleeping woman until she awakened did not completely negate any intention to commit larceny, but it at least created a reasonable doubt as to the presence of such an intent. The beating was disturbing to the trial court in that case and to the supreme court as inconsistent with an intent to steal, and a conviction finding him guilty of burglary with the intent to commit a theft was reversed. There is not a single item of evidence in this case that mitigates against the conclusion of the jury that it was this defendant who entered this school building and the defendant by his own lips when he stated in substance that had the officer come any closer earlier that morning he would have been a “dead mother * ” This statement came after he knew he was accused of the burglary and after he had been advised of his rights.

We have carefully considered the question of prejudice to the defendant from the superintendent’s statement and conclude that the defendant had a fair trial and was convicted beyond a reasonable doubt — any doubt being clearly resolved by the undented testimony from his own lips.

The judgment of the trial court is affirmed.

Affirmed.

CRAVEN and CLYDESDALE, JJ., concur.


author: Mr. JUSTICE DEMPSEY Mr. JUSTICE DEMPSEY

text:
    Stirs, Inc., Plaintiff-Appellant, v. The City of Chicago, Defendant-Appellee.
    (No. 58394;
    First District (3rd Division)
    August 15, 1974.

      Rehearing denied December 5, 1974.

      Allan J. Blair and Joy Farnsworth, both of Chicago, for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Dennis James Stolfo, Assistant Corporation Counsel, of counsel), for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiff, Stirs, Inc., brought suit in the chancery division of the Circuit Court against the City of Chicago for injuries caused by the demolition of a building owned by Stirs, located at 3625 South Rockwell Avenue, Chicago. The complaint contained two counts, the first sought removal of the City’s lien as an illegal cloud on title, the second prayed for damages incurred as a result of the demolition. The chancellor found the demolition illegal, granted summary judgment and set aside the City’s lien. The suit was then transferred to the law division for trial on the damages claimed in Count II. The plaintiff appeals from the law court’s order assessing damages in the sum of $1 and from the denial of its petition for a new trial.

The sole issue on appeal is whether the court’s award of only nominal damages for the loss in property value caused by the building’s destruction and for legal fees expended by Stirs to remove the City’s lien was reversible error.

The property was sold in March 1968 by the county collector for non-payment of the 1966 real estate taxes. Stirs acquired the certificate of purchase in December 1970 and was issued a tax deed by the Circuit Court on February 9, 1971. The deed was recorded in the County Recorder’s office on February 22. Less than a month before, January 26, 1971, the City had filed an action to demolish the building on the property. Lis Pendens notice of the suit was recorded on March 24th. Section 253a of the Revenue Act (Ill. Rev. Stat. 1969, ch. 120, par. 734a) provides that tax purchasers shall be made a party to any proceedings for demolition. Contrary to this requirement, Stirs was neither named a party nor notified of the City’s suit. The demolition was completed in January 1972, and it was after this, according to the testimony at the trial of this cause, that Stirs learned there had been a demolition proceeding.

At the trial Stirs produced two witnesses, both real estate brokers. The first, Jocelyn Blair, was a member of the Chicago Real Estate Board, had been a broker for 10 years, and in that time had processed approximately 200 purchases and sales. She testified that she was familiar with the property at 3625 South Rockwell and had personally inspected the premises, including the interior of the two-story, frame building. She also claimed knowledge of real estate values in the area around the site, based on long residency in the neighborhood and her awareness of prices recently paid by area buyers. It was her estimate that the destruction of the dwelling diminished the property’s value by $7,500. The assistant corporation counsel attacked the competency of her testimony because she had not personally handled the sales for which she quoted prices, but his objection was overruled. He then brought out that she was the wife of Allan Blair, the attorney for the plaintiff.

Geraldine Hoffman had been a broker for 5 years, and was a member of the South Side Real Estate Board. She had participated in approximately 400 sales. She predicated her valuation on a personal inspection of the structure at 3625 South Rockwell in February 1971. She had found it to be in “poor” condition, but located in a neighborhood of well-kept homes, some of them new, and based on her “general knowledge” of real estate values in the City, she concurred with Jocelyn Blair that the destruction of the building had diminished the value of the property by $7,500.

Miss Hoffman identified herself as the secretary and vice-president of the plaintiff Stirs, and testified that a $2,000 legal fee had been paid to Allan Blair for his services in removing the City’s demolition lien on the property. Upon cross-examination she also revealed that Blair was the treasurer of Stirs.

No estimates were offered by the City as to the property’s worth, either with the building or without it. Allan Small, a code enforcement inspector for the City Department of Buildings, testified that he had seen the property over regular intervals from July of 1970 until the time of demofition. He stated that during this period the building remained in the same condition, and that it was vacant and locked. He had not seen the interior of the building and had no knowledge of its condition. His work sheet, introduced into evidence, declared that in his opinion the building was ten per cent depreciated, although in his testimony he described it as hazardous and dilapidated.

Other witnesses presented by the City were residents of the area. They testified to the poor exterior appearance of the house, but none had seen its interior prior to demofition.

Stirs produced uncontested evidence of the value of the property and of the substantial loss sustained as a result of the demofition. Since the court gave no reasons for fixing damages at $1.00, we must conclude that the court did not believe the plaintiffs witnesses and found that the City only committed a technical trespass. This implied finding, as any factual finding of a trial court, must be accorded the same weight as the verdict of a jury and will not be reversed unless it is against the manifest weight of the evidence. Hill v. Meister (1971), 133 Ill.App.2d 678, 273 N.E.2d 643.

As a general rule, tort damages to real property are measured by the difference in market value before and after injury to the premises. (Donk Bros. Coal & Coke Co. v. Novero (1907), 135 Ill.App. 633.) The two witnesses who testified as to value agreed that the property’s worth had been diminished by $7,500 because of the City’s removal of the improvements. The witnesses were licensed real estate brokers and experienced appraisers. The City argues that both witnesses were incompetent to testify on the issue of damages because they did not provide a sufficient foundation for their estimate of the property’s value, and that their testimony was biased because of their personal interest.

The general rule is that a witness may express his opinion as to the market value of real estate where it appears his opinion is based on some competence not possessed by the general public. Ownership or purchase and sale of generally similar real estate in the area is considered a sufficient foundation for an expression of opinion as to value. (Department of Public Works & Buildings v. Oberlaender (1968), 92 Ill.App.2d 174, 235 N.E.2d 3, aff'd, 42 Ill.2d 410, 247 N.E.2d 423.) But these are not the exclusive criteria for establishing the peculiar competency of a witness. The opinion of a professional appraiser is competent when based on a personal inspection of the premises and knowledge of the general value of real estate in the area. (Department of Public Worles & Buildings v. Oberlaender, supra.) Mrs. Blair, who had been used by the City itself as an appraiser, was qualified in both respects. Miss Hoffman, on the other hand, never stated that she was personally familiar with real property values in the area of the property, although she did claim familiarity with market values elsewhere in the City. However, the City did not object to her testimony, and objections to the admissibility of evidence or to the competency of witnesses cannot be made for the first time in a court of review. (Dailey v. Meredith (1965), 56 Ill.App.2d 230, 205 N.E.2d 640.) In any event, a trial court has broad discretion in determining if a witness has been qualified as an expert. Taylor v. Carborundum Co. (1969), 107 Ill.App.2d 12, 246 N.E.2d 898; Landfield Finance Co. v. Feinerman (1972), 3 Ill.App.3d 487, 279 N.E.2d 30.

The City’s cases concerning the competence of expert testimony are not in point. Two of them were affirmances of trial court exclusions of valuation opinions which incorporated economic elements considered incompetent to show market value, i.e., the amount of business done on commercial premises (City of Chicago v. Central National Bank (1955), 5 Ill.2d 164, 125 N.E.2d 94), and decreased rental value where general market value of the premises would be increased in an alternative use. (McCoy v. Union Elevated Railroad Co. (1916), 271 Ill. 490, 111 N.E. 517.) City of Elmhurst v. Rohmeyer (1921), 297 Ill. 430, 130 N.E. 761, concerned testimony beyond the scope of the witnesses’ knowledge. The court held that, in a jury trial, appraisals by Chicago real estate agents of the effect of a subdivision on the value of Elmhurst property were prejudicial because they were based solely on second-hand information supplied to them by Elmhurst realtors.

The City’s remaining justification for total disbelief of the witnesses, advanced only against Miss Hoffman, is that as secretary-vice-president of the plaintiff any estimate offered by her would have no probative value. Personal interest or bias, while it affects the weight and credibility of testimony (People v. Rainford (1965), 58 Ill.App.2d 312, 208 N.E.2d 314), is not pertinent to the question of competence. Expert opinions must be measured by the reasons given for the conclusions reached and the factual details marshalled in support of them. (St. Paul Fire & Marine Insurance Co. v. Michelin Tire Corp. (1973), 12 Ill.App.3d 165, 298 N.E.2d 289.) Mrs. Blair and Miss Hoffman admitted that the frame dwelling was in a poor, neglected condition, but they said it was still basically sound. Nothing in the testimony of the neighbors rebutted that assertion and the testimony of the City inspector, Small, tended if anything to corroborate it. Small stated that he found the building vacant, hazardous and dilapidated, but also secure — in fact he could not enter to inspect the interior. Pictures taken by him and admitted into evidence do not show a dilapidated structure. He was not familiar with property values in the area and did not offer an estimate as to the buildings worth, however his official inspection report, also admitted into evidence, stated that the building was only 10 per cent depreciated. While not fixing any value, that figure was corroborative evidence, from, the City’s own authority, that the structure possessed substantial value.

Stirs claims that it was entitled to recover tire fee it purportedly paid Attorney Blair to remove the cloud on its title created by the City’s demolition lien. The general Illinois rule is that a successful litigant may not recover for the ordinary expenses and burdens of litigation unless provided by statute. (Ritter v. Ritter (1943), 381 Ill. 549, 46 N.E. 2d 41; House of Vision, Inc. v. Hiyane (1969), 42 Ill.2d 45, 245 N.E.2d 468.) There are few exceptions to this rule. One exception is in actions for malicious prosecution. If a plaintiff, in consequence of the wrongful conduct of the defendant, has incurred attorney fees and expenses in defending the suit, the amount so incurred is compensable. (Krug v. Ward (1875), 77 Ill. 603; Farris v. Messimore (1920), 219 Ill.App. 582.) This exception has been extended to include attorney’s fees incurred to correct the adverse effect of a slander of title. (Home Investments Fund v. Robertson (1973), 10 Ill.App.3d 840, 295 N.E.2d 85.) Stirs has contended for the first time on appeal that Count II of its complaint included an action for slander of title, and that since no evidence was adduced by the City contradicting the evidence that the legal fee for removal of the City’s lien was $2,000, it was error to deny that amount as damages.

Under the progressive Civil Practice Act of Illinois, the label which is attached to a complaint is not really important as long as the complaint itself states a valid cause of action. (Dross v. Farrell-Birmingham Co. (1964), 51 Ill.App.2d 192, 200 N.E.2d 912; Ammons v. Jet Credit Sales, Inc. (1962), 34 Ill.App.2d 456, 181 N.E.2d 601.) However, a party cannot have relief under proof, without appropriate allegations of fact. The complaint in this case did not specifically set forth any of the factual allegations and circumstances which make up the elements of an action for slander of title. (For these, see Home Investments Fund v. Robertson, supra.) The only hint of an action aimed at any kind of intentional tort resides in the use in Count II of the conclusory phrase, “a deliberate and negligent tort.” The two words, however, absent further factual elaboration, are merely redundant, and provide inadequate notice of a slander action. Apart from any question of mere labels, the complaint failed to allege the facts necessary for a recovery; in particular there is no mention of malice, which is the gist of any action for slander or libel. Judge v. Rockford Memorial Hospital (1958), 17 Ill.App.2d 365, 150 N.E.2d 202.

Stirs nevertheless asks this court to rule that despite its deficient pleadings, it proved an unrebutted case of slander of title. In doing so, it relies on Robertson for the proposition that the malice element may be implied. In Robertson, it was said that malice is shown where the plaintiff proves the falsity of the recorded item, the defendant offers no evidence to show privilege, and the' plaintiff incurs special damage. Even if we were to accept that definition and assume its appropriateness, it only emphasizes the importance of properly raising the issue in the first instance, so that a defendant may muster proof in rebuttal and on the affirmative defense of privilege.

The pleadings did not allege the elements of a slander of title, nor were they labeled such. Even if by scrutinizing the proofs we concluded that a prima facie case was made out by the plaintiff, the defendant has not contributed to the formation of the issue by itself introducing evidence on the new matter, and so has not waived its right to object to the assertion of the theory. (Hedrich v. Village of Niles (1969), 112 Ill.App.2d 68, 250 N.E.2d 791.) And its objection is well taken. To have evidence without pleading an issue is just as fatal as pleading an issue and not supporting it with evidence; both are essential and each must conform to the other. Consoer, Townsend & Associates v. Addis (1962), 37 Ill.App.2d 105, 185 N.E.2d 97.

Since this action was neither brought nor litigated as one alleging slander of title, the plaintiffs legal fees expended in the removal of the City’s lien were properly excluded as an item of damage. However, the implied finding of the court that the defendant committed no more than a technical trespass, causing no substantial decrease in the market value of the property, was manifestly contrary to the evidence provided by the plaintiffs witnesses, whose testimony the judge considered competent, and by the chief defense witness.

The judgment is reversed and the cause is remanded for retrial on the issue of damage to the plaintiffs real property caused by the City’s demolition of the improvements on the premises.

Reversed and remanded.

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

SUPPLEMENTAL OPINON ON DENIAL OF PETITION FOR REHEARING

Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The City of Chicago has petitioned for a rehearing. It contends that in weighing the evidence we failed to consider certain facts adduced at the trial. Specifically, it is claimed that Stirs, who took title on February 9, 1971, knew or should have known of the City’s demolition suit because the action was recorded in the tract book of the Chicago Title and Trust Company on January 26, and because a published notice of the suit appeared in the Chicago Daily Law Bulletin on February 10. The City argues that the building’s demolition was thus an avoidable consequence of its failure to serve Stirs in the action (as it was required to do by statute), and therefore Stirs’ loss was more the result of its own negligence than the City’s.

No mention of these facts was made in the City’s brief, which was addressed only to the issues discussed in the court’s opinion. And the City’s theory of avoidable consequences was neither advanced in the brief nor articulated before the trial court. The central issue on appeal was whether the trial court’s finding was supported by the evidence; in such circumstances, of course, an appellate court may search the record to affirm the judgment. But we do not think it appropriate to do so at this late date. Before the probative value of the professed evidence could be properly weighed, it would be necessary to analyze unbriefed questions of law, such as: Is publication in the Law Bulletin sufficient notice to a party who is entited to personal service, when no showing has been made of diligent search? Is a party in the position of Stirs obliged to take notice of a filing in an unofficial record such as the Title and Trust Company’s tract book?

Moreover, the doctrine of collateral estoppel forecloses the City from relying on the purported facts. This action was initially brought in the Chancery Division of the Circuit Court where an order, entered on August 10, 1972, removed the City’s demolition lien and found that the plaintiff’s building had been wrongfully demolished. In the order the court found “in favor of the plaintiff with respect to all allegations of Count I of the complaint herein.” Included among tiróse allegations were the following:

“[Pjlaintiff was neither named as a defendant in said action nor in any other way made a party or notified of said action.
Plaintiff had no notice of and was unaware of the aforementioned demolition action until after the property was wrongfully demolished # * s.”

The City made no attempt to appeal the chancellor’s order.

The requested rehearing is denied.

Denied.

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


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Ronald Burbank, Petitioner-Appellant.
    (No. 59250;
    First District (1st Division)
    October 21, 1974.
    James J. Doherty, Public Defender, of Chicago (Terrence McQuigg and Matthew J. Beemsterboer, Assistant Public Defenders, of counsel), for appeHant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James B. Haddad, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

EGAN, J., took no part.


author: Mr. JUSTICE' JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Patterson, Defendant-Appellant.
    (No. 59271;
    First District (4th Division)
    October 23, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE' JOHNSON

delivered the opinion of the court:

On July 30, 1971, defendant was indicted for the offense of rape under complaint No. 71-2103. In a trial before the Honorable Kenneth R. Wendt and a jury, a mistrial was declared after it was determined that the jury was deadlocked and would continue to be unable to agree on a verdict.

A second jury trial commenced before the Honorable Russell R. DeBow on June 27, 1972. The' jury returned a verdict of guilty of rape. On July 25, 1972, the defendant was sentenced to a term of 4 to 8 years in the penitentiary. He filed a notice of appeal from the conviction on August 15, 1972.

The public defender of Cook County was appointed to represent the defendant. On July 9, 1974, the public defender filed a motion in this court for. leave to withdraw as counsel pursuant to Anders v. California (1967), 386 U.S. 738, 18 L.Ed.2d 493, 87 S.Ct. 1396. The motion represents that counsel has carefully searched the record, finds no meritorious issues to be raised on appeal, and believes that an appeal would be wholly frivolous.

Copies of the public defender’s motion and brief were mailed to the defendant on July 9, 1974. Defendant was further advised by this court that he had until September 11, 1974, to file any points in support of his appeal, after which date the court would make a full examination of all proceedings and decide whether the appeal is frivolous. The defendant has neither obtained new counsel nor filed any briefs in support of his appeal.

After reviewing the record, we concur in the opinion of the public defender that there are no additional grounds for appeal which are not frivolous. Accordingly, the motion of the public defender for leave to withdraw as counsel is granted and the judgment of the circuit court of Cook County is affirmed.

Motion allowed.

Judgment affirmed.

ADESKO, P. J., and BURMAN, J„ concur.


author: Mr. JUSTICE BURKE.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Nightengale, Defendant-Appellant.
    (No. 59831;
    First District (1st Division)
    November 4, 1974.

      Philip M. Basvic, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. DriscoH, Jr., and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE BURKE.