author: Mr. JUSTICE SCHWARTZ

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Peter Caruso, a/k/a Peter Busch, Defendant-Appellee.
    (No. 55261;
    First District
    — October 12, 1971.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, Elmer Kissane, and Joseph Romano, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court: Pursuant to Supreme Court Rule 604 the State appeals from an order of the trial court suppressing evidence of illegal gambling activities.

No brief has been filed by defendant, but in accordance with our practice we will examine the merits of this appeal. (Lynch v. Wolverine Ins. Co., 126 Ill.App.2d 192, 261 N.E.2d 466.) The evidence in question consisted of articles seized by police officers on the basis of information received from agents of the Federal Bureau of Investigation, who found the articles while executing a Federal search warrant for stolen property. The facts follow.

On October 23,1969, FBI agents went to the home of John Tamburello at 3521 Lincoln Avenue, Franklin Park, Illinois, to conduct a search for stolen property pursuant to a warrant issued by a United States Commissioner. While they were conducting a search of the premises, the telephone rang and FBI agent Robert Davidson answered it on an extension in the kitchen. He overheard the caller ask, “Are the results in for today?” and the response, “Call back later.” Davidson resumed his search and upon entering a rear bedroom observed the defendant Peter Caruso. There was a desk in the room on which Davidson saw a telephone and an electric blender which was turned on. Strewn on top of the desk were racing forms, newspapers and numerous slips of paper with numbers and figures written on them. Shortly thereafter the telephone rang again and Davidson, who was in the vicinity of the kitchen, answered on the extension phone. He heard the caller say, “This is 510, give me 9-4-2 in the tenth. Are the results in for today?” Davidson told the caller to check back in about five minutes and hung up. At the hearing on defendant’s motion to suppress, Davidson testified that after the second telephone call, he went back to the rear bedroom where he saw scraps of paper in the liquid contents of the electric blender. He could not determine however what had been written on them. The Franklin Park police were notified and when they arrived, they arrested the defendant and seized the slips of paper and the racing publications. The trial court granted defendant’s motion to suppress the slips of paper on the ground that since the police officers did not know what was written on them, they could not be regarded as contraband in plain view. The State’s sole contention on appeal is that the police officers had reasonable ground to believe the slips of paper were evidence of illegal gambling and that it was therefore proper for the police to seize them.

Police officers may lawfully seize articles in plain view which, due to the surrounding circumstances, they reasonably believe constitute evidence of criminal activity. (People v. Sprovieri, 43 Ill.2d 223, 252 N.E.2d 531; People v. McCracken, 30 Ill.2d 425,197 N.E.2d 35.) The test of reasonableness with respect to a search or seizure is whether the facts available to the officer at the moment of seizure or search were such as to warrant a man of reasonable caution to believe the action taken was appropriate. (People v. Miezio, 103 Ill.App.2d 398, 242 N.E.2d 795.) In the instant case the information possessed by the Franklin Park police officers at the moment of seizure consisted of Davidson’s report on the nature of the telephone conversations, the discovery of defendant in a hack bedroom near a telephone, tire observation of racing forms and newspapers in the bedroom and the observation of numerous slips of paper with notations thereon scattered on top of a desk and immersed in the contents of an electric blender. Under such circumstances the police officers properly seized the slips of paper found in defendant’s presence as circumstantial evidence of criminal activity. The inability of police officers to positively identify slips of paper as record evidence of bets does not render a seizure unlawful where surrounding circumstances give rise to a reasonable belief that such slips of paper constitute evidence of a crime.

Accordingly the order of the trial court suppressing evidence is reversed and the cause is remanded for such other and further proceedings as are not inconsistent with the views herein expressed.

Order reversed and cause remanded with directions.

LEIGHTON, P. J., and STAMOS, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE STAMOS.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roosevelt Sanders, Defendant-Appellant.
    (No. 55283;
    First District
    — October 12, 1971.
   Opinion by

MR. JUSTICE STAMOS.

Gerald W. Getty, Public Defender, of Chicago, (Herbert Becker, Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and William K. Hedrick, Assistant State’s Attorneys, of counsel,) for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank A. Feinberg, Defendant-Appellant.
    (No. 55315;
    First District
    — October 12, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Herbert Becker, Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and William K. Hedrick, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

Defendant appeals from a sentence finding him guilty of the crime of arson and sentencing him to not less than one nor more than eight years in the Illinois State Penitentiary. The facts follow.

On October 3, 1969, a fire occurred in the apartment of Mrs. Frank Feinberg, defendant’s ex-wife (also known as Myrna Feinberg LeBegue) in a building at 5605 North Rockwell Street, Chicago. Mrs. Feinberg had left her apartment on Friday, October 3rd, for the weekend. She returned on Sunday evening and found there had been a fire which had destroyed her furniture, fixtures, rugs and draperies.

The building was owned by a land trust, the beneficiaries of which were Nathan M. Heisler and his wife Dorothy. They lived in the building. Nathan Heisler testified that he had been away and returned on Saturday, October 4th, to find fife and smoke damage throughout the halls of the second floor. On the following day, having previously talked with the police with regard to the fire, defendant Frank Feinberg telephoned Detective Henry Ciolli and admitted having set the fire. The officer went to the defendant’s hotel, where he informed defendant of his rights and the defendant again confessed to the crime. He was taken to the apartment where he described how he broke in and ignited the fire. He later gave the police a signed statement to that effect.

Defendant now contends that the indictment is inadequate in that it failed to allege that the property involved belonged to Myrna Feinberg LeBegue. The statute provides that an indictment must name the offense, the statutory provision which had been violated, the elements of the offense and the date and the name of the accused. (Ill. Rev. Stat, 197, ch. 38, par. Ill — 3.) The charge here is that Frank Feinberg committed arson in that on October 3, 1969, he knowingly damaged by fire the building of the Cosmopolitan National Bank, owner of the property under Trust Number 11470, the damage being in excess of $150, without the consent of the bank, in violation of Chapter 38, Section 20 — 1 of the Illinois Revised Statutes of 1967. The indictment fully complies with the statutory requirements.

It is well settled that an indictment should notify the accused of the exact charge against him so that he may prepare a defense. (People v. Gaither, No. 51426, Appellate Court of Illinois, 243 N.E.2d 388.) A leaseholders interest is covered by the arson statute, as is an owner’s.

Defendant admitted breaking into the apartment, destroying furniture and setting fire to mattresses and draperies. In addition the uncontradicted evidence clearly shows that the building itself suffered fire damage. One wall was burned and the window sills were charred. Both personal property and the building itself were damaged in excess of the statutory amount of $150. Defendant was guilty beyond any reasonable doubt.

Judgment affirmed.

LEIGHTON, P. J., and STAMOS, J., concur.


author: Mr. JUSTICE STAMOS

text:
    Phoenix Finance Company, Inc., Plaintiff-Appellee, v. Janet Papajeski, Defendant-Appellant.
    (No. 55403;
    First District
    — October 12, 1971.

      Collins T. Fitzpatrick, Cook County Legal Assistance Foundation, of Chicago, for Defendant-Appellant.
    Herman Grant, of Chicago, for Plaintiff-Appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal by defendant, Janet Papajeski, from a judgment by confession in favor of plaintiff, Phoenix Finance Co., Inc. On appeal defendant contends that the note upon which judgment was entered is void and unenforceable under Ill. Rev. Stat. 1967, ch. 74, par. 37, because plaintiff violated Ill. Rev. Stat. 1967, ch. 74, par. 30, by taking a power of attorney greater than authorized by law and because plaintiff also violated Ill. Rev. Stat. 1967, ch. 74, par. 32, by failing to indicate on the loan statement delivered to defendant the nature of the security taken for the loan.

On February 11, 1970, a judgment by confession was entered against James and Janet Papajeski on a note they executed to plaintiff, a licensee under the Illinois Consumers Finance Act. Ill. Rev. Stat. 1967, ch. 74, par. 19 — 46.

Pursuant to a summons to confirm the judgment by confession, Janet Papajeski filed an answer. After a bench trial the court orally entered a Judgment in favor of plaintiff for the sum of $616.51, confirming the judgment by confession.

Defendant, Janet Papajeski, appeals from the February 11, 1970, judgment by confession. No appearance or brief was filed in this court by appellee, Phoenix Finance Co., Inc., but we deem it essential to consider this appeal on its merits. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264.

Defendant initially contends that the note on which judgment was entered was void under Ill. Rev. Stat. 1967, ch. 74, par. 37, because plaintiff had violated Ill. Rev. Stat. 1967, ch. 74, par. 30 by taking a power of attorney greater than authorized by law. We cannot agree with this contention.

The note signed by defendant recites, in pertinent part:

“To secure the payment hereof, the undersigned jointly and severally irrevocably authorize any attorney of any court of record to appear for any one or more of them in such court in term or vacation, after default in payment hereof, and confess a judgment without process in favor of the holder hereof for such amount as may then appear unpaid hereon; to release all errors which may intervene in any such proceedings; and to consent to immediate execution upon such judgment; hereby ratifying every act of such attorney hereunder.”

Ry taking the power of attorney as above cited plaintiff did not take a power of attorney greater than authorized by Ill. Rev. Stat. 1967, ch. 74, par. 30 since the allegedly additional powers of attorney taken by plaintiff, i.e., “* * * * to release all errors * * * and to consent to immediate execution upon such judgment * * are inherent in the power to confess judgment. Long v. Coffman, 230 Ill.App. 527; St. Clair v. Goldie, 244 Ill.App. 357; Ill. Rev. Stat. 1967, ch. 77, par. 4.

Defendant next contends that the note upon which judgment was entered was void under Ill. Rev. Stat. 1967, ch. 74, par. 37, because plaintiff violated Ill. Rev. Stat. 1967, ch. 74, par. 32, by failing to indicate the nature of the security taken for the loan on defendant’s statement thereof. We agree.

It has been held that the plain and obvious meaning of the language used is the safest guide to follow in construing statutes. (Svithiod Singing Club v. McKibbin, 381 Ill. 194.) Section 32 is clear and explicit in stating that the nature of the security taken for a loan must be indicated on the loan statement delivered to the borrower. If the nature of the security is not so indicated the contract of loan “* * * shall be void and the lender shall have no right to collect or receive any principal, interest, or charges thereon whatsoever.” Ill. Rev. Stat. 1967, ch. 74, par. 37.

Plaintiff failed to indicate the nature of the security taken for the loan on the loan statement delivered to the borrower. The upper right hand comer of the borrower’s statement contained form language to show the nature of the security for the loan taken by plaintiff, but this section of the form was not completed.

The note executed by defendant to plaintiff indicated at the bottom that the loan was secured by a security agreement and wage assignment. The note also indicated that defendant was charged for procurement of credit life insurance and credit accident and health insurance. The loan statement delivered to defendant by plaintiff did not indicate that any security was taken for the loan. By failing to indicate the nature of the security taken for the loan on the borrower’s statement plaintiff violated Ill. Rev. Stat. 1967, ch. 74, par. 32 and is thereby barred from recovering any part of the principal, interest or charges on the loan under Ill. Rev. Stat. 1967, ch. 74, par. 37.

In view of the foregoing the judgment is reversed.

Judgment reversed.

LEIGHTON, P. J., and SCHWARTZ, J„ concur.

       Ill. Rev. Stat. 1967, ch. 74, par. 37
      “Penalties for violation, par. 19. Any person, co-partnership, association, or corporation and the several members, officers, directors, agents, and employees thereof, who shall violate or participate in the violation of any of the provisions of Sections 1, 11, 12, 13, 14 or 18 of this Act,1 shall be guilty of a misdemeanor and punishable by a fine of not less than one hundred dollars ($100) nor more than one thousand dollars ($1,000) for each offense; or in the case of any such natural person, who acts on behalf of himself or others as aforesaid by imprisonment of not more than one year, or by both such fine and imprisonment, in the discretion of the court. Any contract of loan not invalid for any other reason, in the making or collection of which any act shall have been done which constitutes a misdemeanor under this Section, shall be void and the lender shall have no right to collect or receive any principal, interest, or charges thereon whatsoever.” 1. Sections 19, 29, 30, 31, 32, 36 of this chapter.

       Ill. Rev. Stat. 1967, ch. 74, par. 30
      “No licensee shall take any power of attorney except to acknowledge the execution of an instrument or to confess judgment.”

       Ill. Rev. Stat. 1967, ch. 74, par. 32
      Requirements upon licensee, par 14. “Every licensee shall: Deliver to the borrower at the time any loan is made a statement (upon which there shall be printed a copy of subsections (a) and (e) of Section 13 of this Act1) in the English language showing in clear and distinct terms the principal amount and date of the loan, the schedule of payments, the nature of the security, if any, for the loan, the name and address of the borrower and if the licensee, and the agreed rate of charge; and if the interest is precomputed and added to the principal of the loan, the statement shall also disclose the amount of the note including precomputed interest and shall contain a copy of paragraph one of subsection (c) of section 132j ° *


author: MR. PRESIDING JUSTICE McNAMARA.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Tankson, et al., Defendants-Appellants.
    (No. 54880;
    First District
    — October 14, 1971.
   Opinion by

MR. PRESIDING JUSTICE McNAMARA.

Gerald W. Getty, Public Defender, of Chicago, (Chester P. Majewski, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.

Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Edward B. Mueller, Assistant State’s Attorneys, of counsel,) for the People.


text:
    Janet Wiebrecht, Plaintiff-Appellee, v. Louis Shapiro, et al., Defendants-Appellants.
    (No. 54980;
    First District
    — October 19, 1971.

      Ordower & Ordower, of Chicago, for appellant.
    Allan L. Blair, of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Defendants appeal from a decree setting aside certain deeds to real estate and contend:

(1) A finding of fraud cannot be based upon a nondisclosure of a fact that is of public record where there has been no misrepresentations, a fiduciary relationship or where by due diligence the fact could have been ascertained.

(2) A court of equity cannot enter a decree that does not conform to the complaint and affect the rights of a person not a party to the suit.

On July 26, 1968, the law firm of Blair & Buyer filed the instant suit purportedly on behalf of Elizabeth Farmer and Janet Wiebrecht against defendants requesting reformation of a deed and other relief.

On October 8, 1968, the court entered an order upon motion of defendants which provided that Farmer be dismissed as a party plaintiff pursuant to her request and affidavit. The order further provided that plaintiff Wiebrecht be given leave to file an amended complaint.

Plaintiff’s amended complaint consisted of two counts. In Count I she alleged that Farmer owned certain parcels of real estate located in Chicago, Illinois, hereinafter referred to as Lot 40 and Lot 56; that on or about June 22, 1967, Farmer conveyed Lot 40 to plaintiff for the sum of $50.00; that the deed was lost or misplaced after delivery before being registered in Torrens, and that subsequently, on July 5, 1968, Farmer again executed a deed to the property in favor of plaintiff for the sum of $35.00.

It was further alleged that on or about July 18, 1968, defendant Louis Shapiro offered to purchase Chicago real estate from Farmer; that after she told him that the real estate had been sold, he assured her that the parcel he desired was not the one already sold; that Farmer, a 64 year old widow, was unfamiliar with legal descriptions and did not read or understand the documents Shapiro asked her to sign; and that based upon Shapiro’s assurances she signed the documents which purported to convey Lot 40 to Hannah Ziman. (Nominee of Shapiro).

It was further alleged that Farmer did not deliver a copy of the duplicate Torrens Owner’s Certificate to either defendants Shapiro or Ziman, nor was she aware of its existence; that on or about July 19, 1968, defendants Shapiro and Ziman registered their deed and surrendered the duplicate Torrens certificate for cancellation representing Lots 40 and 56; that it was Farmer’s intention to sell defendants Shapiro and Ziman Lot 56 and not Lot 40, which had already been conveyed to plaintiff; and that defendants Shapiro and Ziman at all pertinent times were aware of Farmer’s deed to plaintiff.

Based on the foregoing allegations plaintiff prayed that the deed from Farmer to defendant Ziman be set aside; that in the alternative the Registrar of Titles be ordered to issue a new certificate to plaintiff regarding Lot 40; and that Farmer’s deed to plaintiff be accepted for application and registration with a certificate to issue.

Count II of Wiebrecht’s amended complaint realleged much of the matter of Count I and also alleged that defendant Shapiro’s actions constituted a fraud upon plaintiff and that malice was the gist of the action.

Based upon the allegations of Count II plaintiff prayed that she be reimbursed in the amount of $5,000 for the damage suffered and that punitive damages be awarded in the amount of $25,000.

Defendants’ answer to plaintiff’s amended complaint admitted that Farmer was formerly owner of Lot 40; that defendant Shapiro went to Farmer’s home and offered to purchase Lot 40; that Farmer did not physically deliver a copy of the duplicate owner’s certificate; and that they recorded the deed and surrendered the owner’s certificate for cancellation.

Defendants’ answer denied that they misled Farmer; that defendant Shapiro made any promises, representations or assurances; that Farmer could not read or understand the documents submitted by defendant Shapiro; and that Farmer did not know how they came into possession of the owner’s certificate. Defendants further denied that Farmer intended to convey Lot 56 rather than Lot 40 to defendant Ziman; that defendant Shapiro misled or misrepresented the parcel covered by the deed; that they were aware of Farmer’s conveyance to plaintiff; and that defendant Shapiro’s actions constituted a fraud.

ELIZABETH FARMER testified at an evidence deposition:

She is the person alleged to be owner of Lot 40 if the records reflect it. It appears that her signature is affixed to Plaintiff’s Exhibit #1 (the deed from Farmer to defendant Ziman, dated July 19, 1968, and filed the same day). The records would show if she ever executed any deeds to plaintiff. She has no recollection. Richard Cohen of Chicago (representing plaintiff) sent her something which was to be signed, but she does not know if it was a deed or what the document was, but she was given some money for signing it. After signing this document it was returned to Cohen. She has no recollection as to when it was signed, but it was more than a year ago. Cohen later called, and said something to the effect that the original deed had been misplaced or not received, and wanted her to execute it again. She did not read it when she signed, but she did go to a notary public to have it notarized. Plaintiff’s Exhibits #2 and #3 appear to be the document she referred to signing on the second occasion and would say it was signed on that date. It appears to be in the same condition. It was signed before a notary public and maffed to Cohen.

After this, Shapiro contacted her, but she could not remember the date. It was sometime after signing the deed, less than a month later. Shapiro telephoned her and said he wanted to buy certain land in Chicago. She advised him that it had been sold and she had recently given a second deed, because the first had been lost or misplaced. It could possibly be true that the lot referred to was number 40, but she did not know the number of the lots in Chicago. She did not tell him that she could not sell it to him again. Shapiro asked to come down but she advised him not to because she felt the lot had been previously sold. He came anyway within two days. He arrived and called at the house. They had a short conversation and he asked that they go before a notary public to have the paper notarized. He was told that the lot had been sold, but he assured her that it was another lot. She was not allowed by Shapiro to read the document. He told her he would send her a copy, but he never did so. There was more than one paper he had her sign, but she could not recall if one of them was a 4 X 6 yeHow card. Shapiro was never authorized to pick up a Torrens certificate at the Torrens office in Chicago. She did not know of the existence of such certificate. She had never seen one. She never looked for a certificate because she never had one. Plaintiff’s Exhibit #4 (affidavit of lost Torrens certificate) bears her signature and apparently was one of the documents she signed for Cohen when she returned the deed. She never saw a certificate, and never authorized anyone to pick it up.

Shapiro was in a hurry, because he was going to make another visit. He never gave her time to consult with an attorney. There was not very much said. She did not know what she signed for Shapiro. She never read it, but did tell him that she had already sold the lot. She had no recoUections about how many telephone calls she had from Shapiro. He was told that she had sold the lot and that she did not want to sell it twice. On the telephone and in person he was told.

They went to a notary public and she was asked to sign the documents, which she did, but they were not read by her. Shapiro said it was not necessary.

She had no knowledge of what property she owned in Chicago, but some of it involved other heirs with her. After signing, Shapiro wanted to know what other property she had in Chicago, but she told him she did not know. Shapiro took her photographs of property in Chicago and advised her that he would return them. They had been in a shoe box at her home. When they were brought out, Shapiro took them from her hand and placed them in his briefcase teUing her that he would let her know if he was interested in any other Chicago property.

She had no idea of how many documents she signed at the time Cohen asked her to execute a second deed to Lot 40. As far as she knows, she did not sign a quit claim deed in duplicate for Cohen to Lot 56. Defendants’ Exhibit #1 (copy of a quit claim deed from Farmer to Cohen conveying Lot 56, not dated, but with an acknowledgment dated July 5, 1968) appears to bear her signature, but she had no recollection of signing it.

Shapiro never said that she was entitled to any proceeds of a condemnation award and she had no recoUection of ever signing an assignment of that award to Cohen.

Defendants’ Exhibit #2 (assignment of a condemnation award from Farmer to Cohen, regarding Lot 56, dated July 5, 1968,) appeared to bear her signature, but there was no recollection of signing it. She could not remember if she told Cohen it was her intention to seU Lot 56 to Shapiro and she never told Shapiro that she intended to seU him any lot in Chicago. Plaintiff is unknown to her and she never had a conversation with Alan Schwartz or told him that she intended to seU Lot 56 to Shapiro. The first time she ever met Blair or Schwartz was at this deposition. It is possible that she spoke to Blair on the phone. After the deed was executed, they returned to her home and Shapiro gave her some consideration. The photographs show property she inherited and that is all she knew about it. She is of the opinion that she does not own anything and does not know Lot 40 or 56 and had not heard about the property in 30 (thirty) years.

She did not know if the subject of the litigation is Lot 40 on the deeds she executed for Cohen. She could not remember the contents of the letter of transmittal when she was asked to re-execute duplicate deeds in 1968. She did not read the deeds Cohen gave her to sign and had no knowledge of any condemnation award. Even if she had read the legal description, she would not know what it was all about. Cohen never mentioned any award.

Defendants’ Exhibit #4 (Torrens signature card) looks like it bears her signature but she could not remember signing it for Shapiro, nor how many checks he gave her or their amounts.

The reverse side of Defendants’ Exhibit #5 (negotiated check, Cohen to Farmer, dated June 27, 1967, for $50.00) appears to bear her signature as does Defendants’ Exhibit #6 (negotiated check, Cohen to Farmer, dated June 28,1968, for $35.00).

Donald L. Wood was her attorney and he would have to be asked if she authorized a lawsuit to be filed in Chicago. She is not suing anyone and is not going to answer any more questions about other pieces of property. Lot 56 may be presumed to be in one of the photographs Shapiro took with him. She did not know or remember if anyone contacted her about plaintiff, whether Cohen contacted her again or Blair and Buyer. She and Shapiro at her direction went to the bank to have the documents notarized because she did her business there. Shapiro did not want to go to the bank, but asked if there was a notary in the neighborhood.

She told Blair on the telephone that Wood had authority and instructions to represent her on this matter and to take whatever action Wood thought necessary. She told Wood that she was not interested in anything in Chicago and to get the damned thing over with. After she executed the deed for Shapiro, they discussed the other property. After this lawsuit was filed. Shapiro telephoned her, but he did not badger or threaten. She had no recollection of what he said to her.

In a memorandum ruling the court recited that both plaintiff and defendants were well aware of Farmer’s lack of knowledge in real estate matters; that Farmer was not informed by any of the parties or their agents of the pending condemnation proceedings affecting the property; and that the withholding of this material fact made the other representations to Farmer misleading and consequently fraudulent.

The court further noted that there was no fraud upon plaintiff, but that Farmer was the victim of defendant’s fraud; that since neither plaintiff or defendants had come into court with clean hands, relief should be denied both parties; and that if plaintiff were denied relief because of the application of the provisions of the Torrens Act without further action of the court, defendants would be left to enjoy the fruits of their fraud.

The court then entered an order which provided in its pertinent parts:

“This cause coming on to be heard on the amended complaint of Janet Wiebrecht and the answers thereto of Hannah Ziman and Louis Shapiro, this Court having heard testimony and argument of counsel and having examined exhibits and being fully advised in the premises,
1. Under Section 42 of tire Torrens Act, no person taking a transfer of registered land shall be affected with notice of any unregistered claims or deeds and, accordingly, under the said Torrens Act, plaintiff is barred from the relief she seeks in this case.
2. Defendant, Louis Shapiro, committed fraud upon Elizabeth Farmer in procuring a deed from her to his nominee, Hannah Ziman, for the following described property, to wit:
(legal description)
3. General equitable principles require the deed from Elizabeth Farmer to Janet Wiebrecht for the above described property to be set aside upon reimbursement of expenses in procurement of said deed, excluding attorney’s fees.”

The court then ordered the deeds from Farmer to defendant Ziman and plaintiff to be set aside pursuant to its finding.

OPINION

Defendants contend that the trial court erred in basing its finding of fraud upon nondisclosure of a fact which was a matter of public record where the evidence disclosed no misrepresentation nor fiduciary relationship.

While defendants take issue with the trial court’s reasoning, it has been widely held that the issue on appeal is not the insufficiency of the lower court’s reasoning, but rather the correctness of its ultimate decision. Dvorson v. City of Chicago, 119 Ill.App.2d 357.

The trial court’s findings in its order were prefaced by the following language:

“This Court having heard testimony and argument of counsel and having examined exhibits and being fully advised in the premises * *

However, no transcript of proceedings appears in the record on appeal. In Skaggs v. Junis, 28 Ill.2d 199, 201, the court stated:

“The court stated that its order was based upon ‘the Court having heard the evidence and argument of counsel and being fully advised in the premises.’ In such a situation, unless there is a contrary indication in the order or in the record, it is presumed that the court heard adequate evidence to support the decision that was rendered. (Smith v. Smith 36 Ill.App.2d 55). Where it is alleged that the evidence presented was actually insufficient to support the court’s finding, the burden of presenting such evidence rests with the party who appeals from said order. No record of the evidence heard * * * is before the court and, therefore, it is assumed that the evidence that was fully heard supported the court’s finding * *

The fact that the comt’s reasoning in the present case might have been improper gives no indication that the court did not have adequate evidence to sustain a finding of fraud. Therefore, without the transcript of proceedings this court on appeal has no sufficient basis from which to determine the correctness of the trial court’s ultimate decision and it must be presumed that the evidence heard supported the trial court’s findings.

Defendants next contend that the trial court erred in entering a decree which did not conform to the prayer of the complaint and in granting relief to a person not a party to the suit. However, plaintiff maintains that such relief was well within equitable principles.

Plaintiff’s amended complaint recited certain acts of defendant which were alleged to be fraudulent. Upon those allegations rested plaintiff’s prayer for relief which requested that the conveyance from Farmer to defendant Ziman be set aside; that the deed from Farmer to plaintiff be accepted for registration with an owner’s certificate of title to issue to plaintiff; that in the alternative money damages be awarded; and that the court grant any further relief as may be necessary in accordance with the facts set forth in the complaint.

The trial court found that defendants were guilty of a fraud upon Farmer and that plaintiff aided in the perpetration of the fraud. Additionally, the trial court found that the defendants committed no fraud upon plaintiff. We have already held that it must be presumed that these findings were supported by the evidence.

In First Trust Joint Stock Land Bank v. Cutler, 293 Ill.App. 354, the court stated at page 363:

“It is a settled rule that a decree must conform to the allegations in the pleadings as well as to the proof in the cause and the prayer of the bill, and relief must be granted on the theory of the complaint, or not at all.”

In the present case the trial court initially applied its findings by denying plaintiff relief due to her misconduct with regard to the series of real estate transactions which constituted the subject matter of the suit. However, the trial court noted that to completely deny plaintiff relief without further judicial action would allow defendants to enjoy the fruits of their fraud due to the provisions of the Torrens Act. In accordance with this observation the trial court ordered the deed from Farmer to defendant Ziman set aside. In so ordering the trial court also felt constrained to set aside the deed from Farmer to plaintiff due to her misconduct.

We find the granting of such relief to be error. There is no dispute that if Farmer had participated in the cause as a party plaintiff and requested relief based upon the trial court’s finding of fraud that the relief granted would have been proper. However, Farmer voluntarily withdrew from the cause upon affidavit and disavowed any interest in the subject matter of the litigation. Therefore, the trial court was solely confronted with the controversy between plaintiff and defendants as set out in the amended pleadings and was similarly limited in its application of relief to the prayer of plaintiff’s amended complaint. First Trust Joint Stock Land Bank v. Cutler, supra.

Therefore, we reverse the judgment and remand the cause with directions to reinstate the conveyances from Farmer to plaintiff and defendants and place the parties in the position the court found them.

Reversed and remanded with directions.

LEIGHTON, P. J., and SCHWARTZ, J., concur.


author: Mr. JUSTICE McGLOON.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Seymour Lacob, Defendant-Appellee.
    (No. 55172;
    First District
    — October 14, 1971.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Joseph Romano, Assistant State’s Attorneys, of counsel,) for the People.
    Bellows, Bellows & Magidson, and Harry J. Busch, all of Chicago, for appellee.
   Opinion by

Mr. JUSTICE McGLOON.


text:
    Estate of Adelia W. Zengerle, Deceased,—(John P. Russ, Petitioner-Appellant,) v. David H. Greenman, et al., Respondents-Appellees.
    (No. 55014;
    First District
    — October 19, 1971.

      Donald L. Johnson, of Chicago, for appeUant.
    Afhur Aaron Ellis, and Morris William Ellis, of Chicago, for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

The trial court denied the petition of the Executor of the Estate of Adelia W. Zengerle, deceased, for the issuance of a citation to recover proceeds in a savings account with the Chicago Federal Savings and Loan Association. The court found that the funds were not an asset of the estate but were the property of the surviving joint tenant, David H. Greenman, respondent-appellee. The Executor appeals. The evidence adduced is as follows:

On October 27, 1966, the deceased and David H. Greenman opened a savings account at the Chicago Federal Savings and Loan Association. The account conformed to the requirements of 111. Rev. Stat. 1965 ch. 76 par. 2, “Joint Rights and Obligations,” for creation of a joint tenancy bank account. The account identified them as “Mrs. Delia W. Zengerle or David H. Greenman, as joint-tenants with the right of survivorship and not as tenants in common * * It was stipulated at the hearing that the initial of $2,807.19 and subsequent deposits were made by the deceased.

John P. Russ testified that he was tire Executor of the deceased’s estate and her brother-in-law. On January 8, 1967, he, his wife and their son took the deceased to the Augustana Hospital. During the trip the deceased advised them that she had a savings account at the Chicago Federal Savings and Loan Association and was desirous of having the funds transferred and placed into a savings account at the First National Bank and Trust Company of Evanston, Illinois, and requested Russ to take the appropriate measures to accomplish the transfer. She told them that she intended to five with them.

The day after deceased was placed in the hospital, Russ telephoned the Evanston Bank and at his request he received in the mail a sight draft and signature cards for the creation of a joint savings account in the name of the deceased and his wife, Arabella Russ. On January 20, 1967, these documents were presented to the deceased by Russ at the hospital where she read them and affixed her signature. Russ explained that he required the pass boolc to effect the transfer of the funds to the Evanston bank. The deceased told him that it was in Greenman’s possession, but she would arrange for Russ to obtain it. Russ thereupon prepared a letter of direction and introduction to Greenman which deceased signed and told Russ that she had already telephoned Greenman and apprised him about making the delivery of the pass book to Russ. On January 22, 1967, Russ visited Greenman at his home, but Greenman refused to surrender the passbook. This refusal was made known to the deceased who directed that Russ prepare a letter to the Chicago Federal Savings and Loan Association requesting that the account be “frozen.” The letter was drafted by Russ, executed by the deceased and delivered to the Association. The letter included a statement that the account had been established by her as a matter of convenience and all of the funds were her personal property. The Association responded that it would “freeze” the account pending the results of legal proceedings. Mrs. Zengerle died at the hospital on January 25, 1967, two days after her letter was delivered to the Association.

Petitioner contends that the foregoing establishes that the deceased did not intend to make a gift of the proceeds to Greenman when the account was opened and that respondent’s failure to adduce evidence of a contrary intent required that the court enter judgment in Petitioner’s favor.

OPINION

The creation of a savings account in joint tenancy gives rise to a presumption that a gift to the surviving joint tenant was intended. (In Re Estate of Stang (1966), 71 Ill.App.2d 314, 218 N.E.2d 854; In Re Estate of Bors (1967), 83 Ill.App.2d 447, 228 N.E.2d 127.) Therefore, Petitioner has the burden of rebutting the presumption that a gift was made. Petitioner erroneously contends that by presenting evidence to negate the donative intent of the deceased, in the absence of any contrary evidence, petitioner should prevail. In Murgic v. Granite City Trust and Savings Bank (1964), 31 Ill.2d 587, 202 N.E.2d 470, our Supreme Court disposed of this identical contention and said, at page 590, 591:

“There has been much confusion in this area,on the part of the courts of the several States (including Illinois,) most of which appears to stem from attempts to apply traditional concepts to joint accounts. Various solutions have been advanced. The one apparently adopted by the Appellate Court in this case may be classified as a “limited” or “shifting” presumption. Under this theory the burden of going forward, once the proper setting up of the account and death of the joint tenant had been established, was upon the estate and if there was no evidence rebutting donative intent the survivor would take, but if the estate introduced evidence which tended to rebut donative intent the burden would then revert to the survivor to prove by clear and convincing evidence that a gift was intended. Apparently this concept derives from the common-law rule that such a burden devolves upon a person claiming to be the donee of an inter vivos gift. * * *”
“We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one- claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.”

Petitioner’s burden, therefore, was not merely to present evidence of deceased’s lack of a donative intent, but that such evidence reflected clearly and convincingly that no gift was intended.

Petitioner also seems to contend that his evidence is sufficient to rebut the presumption, regardless of the quality or quantity of evidence required. It is well established that a trial court’s findings will not be disturbed on appeal unless against the manifest weight of the evidence or unless they are palpably erroneous. (In Re Estate of Bors, supra.) It is significant that only Russ testified and no other witnesses were called to corroborate or substantiate his testimony. His testimony concerned statements and writings of the deceased between January 8, 1967, the day she went to the hospital, and January 25, 1967, the day of her death. With the exception of the statement in the “freeze” letter, the evidence of her intent did not pertain to her intent at the time the account was opened, but only that she desired to sever the joint-tenancy with Green-man. Evidence of the lack of donative intent must focus upon or relate back to the time the joint-tenancy was created and the decision of the donor, made subsequent to the creation of the joint-tenancy, that she did not want the proceeds to pass to the survivor, would not, in itself, be sufficient to sever the tenancy. In Re Estate of Stang, supra.

The trial court did not err in finding that clear and convincing evidence had not been adduced to rebut the presumption of donative intent. We therefore affirm the trial court.

Judgment affirmed.

LEIGHTON, P. J., and SCHWARTZ, J„ concur.


text:
    Angelo D. Mistretta, et al., Plaintiff-Appellants, v. Village of River Forest, Defendant-Appellee.
    (No. 55066;
    First District
    — October 19, 1971.
    Sidney Z. Karasik, of Chicago, for appellant.
    Charles L. Michod, of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Plaintiffs appeal from a judgment entered in favor of defendant municipality in a zoning case and contend:

1. The doctrine of res judicata is inapplicable since plaintiffs base their suit upon changes in surrounding areas which occurred after the prior litigation.

2. The trial court erred in excluding from consideration certain use changes of property in an adjacent municipality.

3. The findings of the trial court are against the manifest weight of the evidence.

Plaintiffs purchased the subject property in July, 1964. The property was zoned “Class A — Single Family” and consisted of a 50' X 180' lot which was vacant and unimproved. In August, 1964, plaintiff filed an application for a zoning change which was denied. The circuit court of Cook County sustained the Zoning Board’s denial and this court affirmed as reported in Mistretta v. Village of River Forest (1966), 78 Ill.App.2d 46. (A complete description of the property and surrounding area is contained in that opinion).

On May 13, 1969, plaintiffs instituted the present suit seeking declaratory relief. Plaintiff’s amended complaint alleged the aforementioned facts and further alleged that on January 22, 1969, plaintiff petitioned the Board of Trustees of the Village of River Forest to amend the zoning ordinance and that the Village refused to grant such relief.

The amended complaint further alleged that certain “drastic changes” have taken place in the immediate vicinity of the subject property since the 1964 petition for rezoning which makes its present zoning classification oppressive, arbitrary and confiscatory and the plaintiffs have offered the property for sale, but have been unable to procure a purchaser due to unsuitability of the zoning classification.

The use changes since 1964 which allegedly rendered the zoning unsuitable were:

1. The replacement of the two-flat building opposite plaintiffs’ property to the east by a 24-unit, five story condominium building.

2. The construction of a seven-story apartment building in Elmwood Park less than a block from plaintiffs’ property.

3. The removal of a structure to the west of plaintiffs’ property that screened the Paddle Wheel Restaurant parking lot.

4. The replacement of a single family residence one block to the east by an apartment building.

On the basis of the foregoing allegations plaintiffs prayed for a declaratory judgment and injunction against the enforcement of the zoning ordinance as it pertained to the subject property.

Defendant’s answer denied that the changes in the vicinity rendered the zoning unsuitable and that the property was not salable. In further answer defendant alleged that the action was barred by the prior lawsuit regarding the subject property.

At trial plaintiffs testified that they purchased the property with full knowledge of its zoning classification; that after they failed to obtain a zoning change in the initial litigation, they placed the property for sale with a real estate broker; and that although the property was advertised for sale approximately 30 times, only one inquiry was received. Plaintiffs further testified that if the court permitted a rezoning to “Class B-Multiple Family,” they would erect a ten-unit apartment building on the property and reside in one of the units; that the present value of the property as zoned is $12,000 — $15,000; and that if rezoned to “Class B” the property would be worth $40,000 — $50,000.

It was stipulated that if plaintiffs’ broker were to testify he would relate that the subject property was not salable under its present zoning because of the proximity of the condominiums to the east across the street, the apartment building in Elmwood Park, and the apartment building one block to the east. It was further stipulated that defendant’s expert zoning witness would testify that the highest and best use of the subject property was single family as it had been zoned for 48 years. After hearing the foregoing testimony the trial court entered its order denying plaintiffs the relief requested and plaintiffs appeal.

OPINION

Plaintiffs contend that the trial court erred in its application of the doctrine of res judicata to the present litigation. They argue that the court failed to fully recognize the “drastic” nature of the change in circumstances occurring since the first litigation. These changes, they assert, made the second litigation unique.

The essence of the doctrine of res judicata is the prevention of relitigation of the same matter between the same parties. (Schoenbrod v. Rosenthal (1962), 36 Ill.App.2d 112, 183 N.E.2d 188.) Where a former adjudication is relied upon as an absolute bar, there must be, as between the two actions, identity of parties, subject matter and causes of action. (Ray Schools-Chicago, Inc. v. Cummins (1958), 12 Ill.2d 378, 146 N.E.2d 42.) Where facts are alleged in a second complaint which arose after the termination of the prior litigation and the issue in the second litigation thus differs from the first, the former adjudication is not a bar to the maintenance of the second suit. Seno v. Franke (1958), 16 Ill.App.2d 39, 46, 147 N.E.2d 469.

We are aware of no Illinois case which has applied these basic rules to facts resembling those before us. The cases which the parties cite are distinguishable. Other jurisdictions have refused to apply the doctrine of res judicata to zoning matters where circumstances have materially changed since the prior litigation. (City of Miami Beach v. Prevatt Supreme Court of Florida, 1957, 97 So.2d 473; Manilow v. City of Miami Beach District Court of Appeals of Florida, 1968, 213 So.2d 589; North American Holding Corp. v. Murdock (1957), 167 N.Y.S.2d 120.) Generally, this rule has been invoked only where the subsequent changes have resulted directly from zoning amendments and variations of surrounding property. Where, however, the only change alleged was an intensified use under a pre-existing zoning classification, it has been held that the changed circumstances were not “material.” Smith v. City of Miami Beach (District Court of Appeals of Florida, 1968, 213 So.2d 281.

Where a zoning classification is twice challenged, we agree that the doctrine of res judicata should be applied unless plaintiff can show materially changed circumstances. To the extent that alleged changed circumstances arise solely from an intensified use of property within preexisting zoning classifications, they cannot be deemed “material.” The “drastic changes” described by plaintiff herein are of this nature. Plaintiff has cited no “material” changes, only predictable uses.

In analyzing the zoning scheme of River Forest in the initial litigation, the court by necessity had to consider the effect of the “Class B” and “Class C” property, as improved to its fullest maximum use, on the subject property. This is the same issue that plaintiffs would now have us consider. To enter upon such a consideration would be to relitigate matter previously ruled upon.

We therefore sustain the trial court’s application of the doctrine of res judicata and affirm the judgment in favor of defendant. In view of the foregoing, we need not address ourselves to the remaining contentions.

Judgment affirmed.

LEIGHTON, P. J., and SCHWARTZ, J., concur.

       Under the ordinances of the Village of River Forest, four zoning classifications are created therein:
      Class A — single family
      Class B — multiple dwelling or any use under A
      Class C — commercial
      Class CC — industrial


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dale Slaughter, Defendant-Appellant.
    (No. 55484;
    First District
    — October 18, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (James J. Doherty and Lee T. Hettinger, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and James Karahalios, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Davis, Defendant-Appellant.
    (No. 55330;
    First District
    — October 19, 1971.

      Thomas Grippando, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Robert L. Best, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

After a bench trial, defendant was convicted of criminal trespass to a vehicle, sentenced to one year in the House of Correction, fined $500 and assessed $5 costs.

Defendant appeals and presents two contentions: first, that there was no valid jury waiver; and second, that it would be a denial of defendant’s constitutional rights under the fourteenth amendment to the United States Constitution, if he were to be confined beyond the maximum term specified by statute because of a failure, due to indigency, to pay the fine and costs.

The public defender represented defendant at the initial proceedings and obtained a reduction of the charge from a felony to a misdemeanor. Counsel advised the court in the presence of the defendant that defendant was ready for trial, that counsel had informed defendant of his right to a jury trial and what a jury trial was and that defendant had advised counsel that he desired to waive a jury trial. The trial judge did not question the defendant as to his knowledge or understanding of the jury waiver.

We find that People v. Sailor, 43 Ill.2d 256, 260, is dispositive of defendant’s initial contention. At page 260 the court said:

“An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney in her presence and without objection, to waive her right to a jury trial is deemed to have acquiesced in, and to be bound by, his action.”

Cases Cited.

Defendant cites abundant authority for the proposition that a waiver of a jury trial must be understandingly and knowingly made. Two of these citations, People v. Rambo, 123 Ill.App.2d 299 and People v. Baker, 126 Ill.App.2d 5, are distinguishable from the case at bar.

In Rambo neither defendant nor his counsel advised the court that a jury trial was waived, and this court held that a knowing waiver would not be inferred in the absence of an overt expression by defendant or his counsel that the right to a jury trial was waived. In Baker this court noted that defendant was without counsel when he appeared at the preliminary hearing charged with armed robbery. Counsel was not appointed until after the charge was reduced to a misdemeanor. The record there was devoid of any recess or pause in the proceedings which would have shown a meaningful opportunity for counsel to consult with his attorney. After a “discussion off the record” counsel in Baker merely advised the court, “not guilty, jury waived.”

Under the circumstances at bar, we conclude that the rule enunciated in Sailor, supra, is applicable and that defendant’s initial contention must fail. However, we reiterate our admonition in People v. Bell, 104 Ill.App.2d 479, 482:

“It takes but a few moments of a trial judge’s time to directly elicit from a defendant that he is entitled to a jury trial, that he understands what a jury trial is, and whether or not he wishes to be tried by a jury or by the court without a jury. This simple procedure incorporated in the record will reduce the countless contentions raised in the reviewing courts about jury waivers.”

Concerning defendant’s second contention, the State concedes that Williams v. Illinois (1970), 399 U.S. 235, precludes defendant’s incarceration beyond the statutory maximum of one year in the House of Correction if, due to his indigency, he is unable to pay the fine and costs.

In view of the foregoing we remand this cause to the trial court which sentenced defendant, for a hearing at the expiration of the one year-sentence to determine if there is an involuntary non-payment of the fine and costs. If defendant establishes that his non-payment is involuntary, he is to be set at liberty. The judgment, however, for the fine and costs remains in full force and effect and collectible in the event defendant fortuitously loses his indigent status.

We therefore affirm as to the jury waiver contention, but reverse and remand for proceedings not inconsistent with this opinion regarding defendant’s non-payment of the fine and costs.

Affirmed in part and reversed and remanded in part with directions.

LEIGHTON, P. J., and SCHWARTZ, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Henry Prokop, Defendant-Appellant.
    (No. 52378;
    First District
    — October 20, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Harold A. Cowen, Ronald P. Katz, and James J. Doherty, of Defender Project, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Terrence Mahoney, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

Defendant, Hemy Prokop, a suburban police officer, pleaded not guilty of a charge of perjury and waived a jury. He was found guilty on each count of the indictment and received a sentence of two years probation and a fine of $1,000. The chronology of events leading up to his conviction is as follows:

1. On April 13, 1964, Prokop arrested one of five defendants who were subsequently prosecuted for theft.

2. On June 2, 1964, Prokop testified in a motion to suppress evidence in Niles.

3. On August 1, 1964, Prokop was interviewed by an Assistant State’s Attorney, in preparation to his testifying before the Cook County Grand Jury.

4. On August 14th and 18th, 1964, Prokop testified before the Cook County Grand Jury.

5. On or about the third week of April, 1965, Prokop was interviewed by an Assistant State’s Attorney at the scene of the arrest of the five men charged with theft.

6. On May 3, 1965, said Assistant State’s Attorney interviewed Prokop in his office and accused Prokop of lying. He showed Prokop transcripts of his previous testimony at the motion to suppress in Niles and at the Grand Jury proceedings and asked him questions in an attempt to refresh his memory.

7. On or about May 5, 1965, after Prokop had testified in a motion to suppress in the trial court, said Assistant State’s Attorney spoke to Prokop in the jury room attached to Judge Dahl’s courtroom. He had a transcript of Prokop’s testimony before the Grand Jury.

8. On or about May 12, 1965, Prokop appeared in Judge Dahl’s courtroom represented by counsel, the late John Goughian, Esquire. Mr. Goughian told the Assistant State’s Attorney that if Prokop were put on the stand he would take the Fifth Amendment.

9. On petition by the State, Judge Dahl granted immunity to Prokop.

10. On advice of counsel, given in six or seven consultations, Prokop was told that if he did not remember he should state that he did not remember; that if he did remember he should so state; that he should utter the truth as best he could recall.

11. On May 18, 1965, Prokop was called as a court’s witness in the trial of the five defendants accused of theft. He was cross-examined by the prosecutor who read verbatim excerpts from Prokop’s testimony given at the motion to suppress in Niles on June 2, 1964, at a conference with an Assistant State’s Attorney on August 1, 1964, and his testimony at the Grand Jury. When asked if he was asked those questions and gave those answers, he testified, “I don’t remember.”

12. On August 30, 1965, Prokop was indicted for perjury and charged with testifying falsely when he testified that he did not remember.

Defendant was indicted and convicted of the criminal offense of perjury pursuant to section 32 — 2(a) of the Criminal Code (111. Rev. Stat. 1967, ch. 38, par. 32 — 2(a)), which provides:

“A person commits perjury when, under oath or affirmation, in a proceeding or in any other matter where by law such oath or affirmation. is required, he makes a false statement, material to the issue or point in question, which he does not believe to be true.”

Defendant claims on appeal that he was not proven guilty of perjury beyond a reasonable doubt in that the State failed to prove defendant’s intent to deceive the jury and that the matters as to which perjury is alleged were not so material to the issues as to have probably controlled the result. Defendant also claims that all that the State showed were the prior statements made by the defendant, one year prior to. the date of the trial at which defendant testified under oath that he did not remember the series of questions and answers read to him in haec verba.

On three occasions, on August 1, 1964, in the State’s Attorney’s office and on August 14th and 18th of the same year, before the Grand Jury, defendant Prokop unequivocably stated that he observed one Angelo Pettit on Marino’s property prior to defendant’s arrest of Pettit. At the trial, however, the defendant, testifying as the court’s witness was asked, “Did you, before you arrested Pettit over on Dickens Avenue, see him on Marino’s property?” Defendant answered, “I don’t remember.” The Assistant State’s Attorney, in an attempt to refresh defendant’s memory, precisely recalled Prokop’s previous testimony specifically inquiring after each occasion of admission whether defendant recalled being asked those questions and gave such answers. Prokop on each occasion reinterated, “I don’t remember.”

On August 18, 1964, before the August term of the Grand Jury, Prokop testified that as he approached the fence on the North boundary of Marino’s property, he noticed a man climbing over said fence. Defendant stated further that the man caught and ripped his trousers while attempting to flee over the fence and while in flight glanced at Prokop which aided defendant’s subsequent identification of the subject as Frank Rago. At the trial on May 18, 1965, Prokop was asked, “Now when you were on this fence overlooking Dickens Avenue, did you see anybody else beside Pettit?” Defendant answered, “I don’t remember.”

Defendant was then asked the following questions which he answered as follows:

“Q. You saw subject go around the corner?

A. Yes.

Q. Which way was he going?

A. I don’t know because he almost got out of sight on account of a house over there.

Q. And can you identify that man as the man you saw go over the side fence when you saw the man get hung up?

A. No, I cannot.

Q. Did you ever see that man again?

A. There was a man the Franklin Park Police brought in with ripped pants.

Q. Did you recognize the man who was brought in by the Franklin Park Police as the man you saw go over that second fence and the man you saw run around the corner on Roy Street by his description?

A. No, I didn’t see his face.”

We are mindful of the contention of the defense that ‘lapse of time, emotions and faulty memory” may cause some individuals to experience a lapse of memory. However, defendant was a Sergeant of Police whose duty required, and experience taught him to be aware of occurrences which were part of his work. It is inconceivable that he did not remember any of the circumstances to which he positively attested to on three previous occasions. He could not have completely forgotten the facts of the arrest or his previous statements in the execution of such arrests. Common sense forbids us to accept defendant’s explanation.

Defendant further claims that the matters as to which perjury is alleged were not so material to the issues as to have probably controlled the result. Defendant seems to imply that there are degrees of perjury and that the defendant’s alleged perjury was of trivial or lesser degree for which defendant should not be held legally accountable. We do not accept this argument.

In the appeal of the matter involving certain defendants, some of whom Prokop arrested and in whose trial Prokop did not remember many occurrences, the Illinois Supreme Court held that defendant Prolcop’s previous inconsistent statements were of material consequence to the question in issue, the innocence or guilt of one of the defendants, one Angelo Pettit. The Illinois Supreme Court stated:

“In addition, the impeaching statements were largely germane to the issues in the case. Defendants do not question the propriety of the trial court’s decision in making Sgt. Prokop its own witness; the State needed his testimony in order to establish defendant Pettit’s participation in the crime, * * *” People v. Marino, 44 Ill.2d 562, 578.

Having carefully considered the entire record, the briefs and arguments of counsel, it is our decision that the defendant was proved guilty of perjury beyond a reasonable doubt.

The judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE BURMAN

text:
    The People ex rel., Sandra Lyke, Plaintiff-Appellee, v. Hubert Rucker, Defendant-Appellant.
    (No. 54585;
    First District
    — October 20, 1971.
    Goldberg & Goldberg, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, Assistant State’s Attorney, of counsel,) for appellee.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Hubert Rucker, was charged in a complaint with paternity of a child born out of wedlock to Sandra Lyke. In a trial without a jury, the trial judge found that the defendant was the father of the child and ordered him to pay $15 per week toward its support and maintenance.

The defendant contends, on appeal, that the evidence at trial was insufficient to support the finding of paternity against him.

The relatrix, Sandra Lyke, who was 24 years old and single, testified that on August 13, 1968, she gave birth to a premature baby. She said she first met the defendant, who was 32 years old, through her brother, in October, 1967. She saw him again in November, and then every day or every other day until January, 1968. She and the defendant engaged in sexual intercourse “about as often as I saw him.” Her last menstrual period ended on November 11th, and she had intercourse with the defendant two or three days later. In the latter part of December she discovered that she was pregnant. When she told the defendant, he said they were going to get married because he didn’t want to pay child support. He admitted being the father of the child and promised to support it. After the child was bom he gave her a baby gift. She did not see the defendant for a period beginning two months after she was pregnant until the baby was born.

On cross-examination, Miss Lyke testified that she was a bookkeeper at County Hospital. The first time she met the defendant, in October, they did not-have intercourse. The next time she saw him was “about Thanksgiving.” They went to a movie and then had sexual relations. She admitted that prior to meeting the defendant, she had dated a Theoris West, whose nickname was “Pistol”, whom she had known since she was 16 and with whom she engaged in sexual relations. She testified that the last time she had intercourse with “Pistol” was in early October and that she had not seen him since, nor had she seen any other men during the time she was having relations with Rucker.

The defendant, Hubert Rucker, took the stand in his own defense and was represented by counsel of his choice. He testified that he met the relatrix about the middle of October when she was with her brother, and that he saw her three times, but never had sexual relations with her because “she kept talking about this fellow she was going with pestering her. She always refused me.” He denied telling her that he knew he had made her pregnant. On cross-examination, he testified that he saw the relatrix about once a week during November and December, 1967, and that when he brought her home, he would go inside for 15 or 20 minutes.

Defendant argues that it was incumbent upon the plaintiff as in all civil cases to make out her case by a preponderance of the evidence and that this is not done where as here the testimony of the relatrix is contradicted by the testimony of the defendant and there are no other witnesses. We agree with defendant’s initial proposition that in a paternity case, the burden of proof is on the mother and the charge against the defendant must be proven by a preponderance or greater weight of the evidence. (In re Blackwell v. Welti, 46 Ill.App.2d 453, 197 N.E.2d 126.) It is well settled in Illinois, however, that the determination of the preponderance of the evidence depends not solely on the number of witnesses testifying for each side, but on the weight to be accorded their testimony. (De Frates v. Rowland, 341 Ill.App. 69, 93 N.E.2d 153.) This in turn depends upon the credibility of the witnesses, their demeanor on the stand, which only the trier of facts can judge. (Sulzberger v. Sulzberger, 372 Ill. 240, 23 N.E.2d 46.) Thus the Supreme Court has approved an instruction telling a jury that “where witnesses testify directly opposite to each other on a material point, the jury are not bound to consider the point not proved; that they have a right to regard all surrounding circumstances proved on the trial, and give credence to one witness over the other, if they think such facts and circumstances warrant it.” West Chicago R.R. Co. v. Lieserowitz, 197 Ill. 607, 614, 64 N.E. 718.

In the instant case, the cause was tried by the court without a jury. The trial judge who heard and observed the witnesses found from the evidence that Hubert Rucker was tire father of the child. “We are not permitted to disturb that judgment unless it is clearly and palpably against the weight of the evidence.” (People ex rel. Jones v. Schmitt, 101 Ill.App.2d 183, 242 N.E.2d 275.) After a careful examination of the record, we must conclude that there was ample evidence to support the findings of the trial court.

Defendant relies on McFarland v. People, 72 Ill. 368. In that case, the trial judge erroneously instructed the jury that the mother’s testimony with respect to the time of conception was entitled to greater weight than that of any other person. The Supreme Court, in reversing, stated that the court was not authorized to declare as a matter of law the comparative weight of the evidence. The Court also held that the following instruction, offered by the defendant, was improperly refused:

“That, in this case, both the mother of the child and the defendant are competent witnesses; and if one swears that defendant is the father of the child, and the other that he is not, then, if they are of equal credibility, [emphasis added] the one offsets the other, and unless further evidence, given by other witnesses for the people, or circumstances proven, give the preponderance for the plaintiff, your verdict should be for the defendant.” (p. 369.)

In the instant case, it is readily apparent that the witnesses were not of equal credibility and that the trial judge believed the testimony of the relatrix and disbelieved that of the defendant.

Defendant argues that the relatrix’s testimony regarding the date on which she had sexual relations with him was inconsistent since she testified on direct examination that she had had intercourse with defendant two or three days after her menstrual period and on cross-examination that the date was sometime around Thanksgiving. The difference of a few days, however, is immaterial. Moreover, even where there are inconsistencies in the testimony of the relatrix, the Appellate Court need not say that the judgment below was against the manifest weight of the evidence. People ex rel. Harrison v. Siroky, 343 Ill.App. 520, 99 N.E.2d 586.

The defendant also cites People ex rel. Jorczik v. Garines, 198 Ill.App. 435, in which the Appellate Court affirmed the trial court’s judgment for the defendant. In that case, however, the defendant’s testimony was supported by that of two other witnesses. In addition, although the relatrix’s testimony showed that the child was born 233 days after her first act of intercourse with the defendant (280 days is normal), there was no evidence that the birth was premature. In the instant case, the testimony of the relatrix that the birth of her baby was premature was uncontradicted.

For the reasons given the judgment of the circuí court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE DIERINGER.

text:
    John Noyola, Jr., Plaintiff-Appellant, Counter-Defendant, v. Ruth Laura Noyola, Defendant-Appellee, Counter-Plaintiff.
    (No. 54640;
    First District
    — October 20, 1971.

      Rinella & Rinella, of Chicago, (Richard Rinella, of counsel,) for appellant.
   Opinion by

Mr. JUSTICE DIERINGER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Luis Corral Silva, a/k/a Corral Luis Silva, Defendant-Appellant.
    (Nos. 54737, 55193 cons.;
    First District
    — October 20, 1971.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, (James N. Gramenos, of counsel,) for appellant.
    Edward V. Hanrahan, States Attorney, of Chicago, (Robert A. Novelle and Nicholas Taubert, of counsel,) for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The defendant, Luis Corral Silva, was indicted for murder. The defendant pleaded guilty to the lesser included offense of voluntary manslaughter. The trial court sentenced him to not less than eight, nor more than ten years, in the Illinois State Penitentiary. On appeal the defendant’s contentions are:

(1) That the trial court failed to inform the indigent defendant of his right to appointed counsel;

(2) That the trial court failed to conduct a full and proper hearing in aggravation and mitigation; and

(3) That the trial court imposed an excessive sentence.

The facts are as follows:

In February, 1969, the defendant was indicted for murder. He pleaded not guilty and on May 2, 1969, his trial and jury selection commenced. The defendant was represented by private counsel of his own choosing. Eight jurors were selected and sworn in and the case was continued to the following Monday, May 5, 1969. On Monday, May 5, 1969, the defendant changed his plea to guilty of voluntary manslaughter and the eight selected jurors were dismissed.

An official interpreter and a private interpreter were present at the trial since the defendant had some difficulty with English. After admonishing the defendant of the consequences of his plea, the trial court found him guilty of voluntary manslaughter.

The stipulated facts were that the defendant fatally shot Hector Enrique Herrera, who was unarmed, five times in both the chest and through the back. A young girl, who was a bystander, was struck in the arm by one of the bullets. After a hearing in aggravation and mitigation, the defendant was sentenced.

The first contention raised by the defendant on appeal is that the trial court failed to inform the indigent defendant of his right to appointed counsel. The defendant bases this argument on his statement to the court that “he will accept it (guilty plea) because he hasn’t got any money to continue fighting his case.” In his brief, however, the defendant totally ignored his attorney’s reply:

“Well, your Honor, if the Court please, I want to represent to the Court that the fee has been paid in full, has been paid for some time, I have not asked Mr. Silva or members of his family for any more money either directly or by inference.”

The court passed the case at the Assistant State’s Attorney’s suggestion so that the defendant, his attorney, the interpreter, and the defendant’s family could get together and clarify the situation. The court informed the defendant of his right to appeal:

“Now, Mr. Silva, I must advise you of your right to appeal and of your right, if indigent, if you cannot afford it, to be furnished without cost to you the transcript of the proceedings and with an attorney to handle your appeal. Mr. Farina, (the defendant’s attorney) I want to confer with Mr. Silva as to whether or not he wants to appeal, if he wants to file a notice of appeal with the clerk he may do so, you have thirty days to determine whether or not you want to appeal. Confer with Mr. Silva and advise the court what you want to do.”

The contention that the trial court failed to inform the defendant of his right to appointed counsel is not supported by the record. At the trial, the defendant was represented by private counsel and had two interpreters present. We are not persuaded that the defendant was not meaningfully represented.

The second contention raised by the defendant is that the trial court failed to conduct a full and proper hearing in aggravation and mitigation. The record reflects that there was a full and proper hearing in aggravation and mitigation.

The Court: “We will now have a hearing in aggravation and mitigation to determine what the punishment will be.”

The Assistant State’s Attorney stated that the defendant did not have a prior record since he came to this country. Mr. Farina, the defendant’s attorney said:

“* * * By way of mitigation, your Honor, we could produce testimony to show that the defendant is a married man, has five children, married to Mrs. Silva who is in court here today.
“As the State indicated, he has never been in any difficulty with the law either by arrest, trial or conviction.
“I think that there was considerable provocation for the events that took place on January 14th. I think that there was a background of bad blood between the defendant and the victim and I think it developed into a situation where there was considerable provocation for the shooting that took place on the night in question.
“I think that once this person, Mr. Silva, begins doing his time and at such time when the parole board feels that he is ready to return to society, I think he is an excellent risk, I don’t think this man will ever be involved in any trouble again and I think that his sentence should be the minimum under the circumstances.”

The court conducted a proper hearing, heard all the relevant evidence and properly sentenced the defendant under the law.

The third and final contention raised by the defendant is that the trial court imposed an excessive sentence. The defendant argues that the small spread between the eight year minimum and the ten year maximum forcloses any effective function of the parole system.

In People v. Lillie (1967), 79 Ill.App.2d 174, 223 N.E.2d 716, the court stated at page 178:

“Adequacy of the punishment should determine the minimum sentence, with the maximum dependent upon the court’s divination as to the length of time required to achieve rehabilitation.”

It must be remembered that the defendant shot an unarmed man five times through the back and chest, causing his death, and had wounded a girl. In view of the violent nature of the crime, the sentence was not excessive. The maximum sentence of ten years was not inappropriate for rehabilitation and parole.

The defendant needlessly and violently took the fife of an unarmed man. A minimum sentence of eight years and a maximum sentence of ten years is not excessive.

For the reasons given, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

BURMAN and DIERINGER, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Roosevelt Jackson, Defendant-Appellant.
    (No. 54765;
    First District
    — October 20, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, of Defender Project, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Terrence J. Mahoney, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, Roosevelt Jackson, was charged in a two-count indictment with the offenses of rape and indecent liberties with a child. He entered a guilty plea to the charge of indecent liberties with a child, which was accepted by the trial court, and after a hearing in aggravation and mitigation he was sentenced to serve not less than four nor more than four years and one day in the Illinois State Penitentiary. The rape charge was dismissed on motion of the State.

The defendant contends on appeal (1) that his waiver of jury trial and his entry of a guilty plea were not voluntarily and understandingly made, (2) that he was deprived of due process because the hearing in mitigation was inadequate and (3) that the sentence imposed was excessive.

We shall first review the proceedings in the circuit court in order to place the contentions in proper context. The defendant was arraigned on November 20, 1968, and after the appointment of the Public Defender as his counsel, he entered a plea of not guilty. The Public Defender continued to represent him until February 27, 1969, when leave was given to Richard L. Vaughns, an attorney hired by the defendant’s mother, to file an appearance and to substitute as the defendant’s counsel. The cause was continued from time to time and set for trial on September 8, 1969. When the matter was first called for trial on that date, it was passed over so that the defendant would have an opportunity to confer with his mother. The case was then recalled and held for trial. As the cause was about to proceed to trial, the following colloquy occurred:

“The Court: Mr. Vaughns, it is now twelve o’clock. You have had an opportunity to confer with Mr. Jackson and his mother has talked to him. What is the situation? Mr. Vaughns: Yes, Your Honor. May it please the Court, at this time in Indictment 68-3853, in count 2 of said indictment, the charge of indecent liberties with a child, at this time the defendant wishes to withdraw his plea of not guilty and waive a jury trial and to enter a plea with reference to Count 2 of said indictment.

The Court: Have you talked to this defendant about the consequences of his plea, Mr. Vaughns?

Mr. Vaughns: Yes, I have, Your Honor. I have advised the defendant that he can be upon his plea could be sentenced to an indeterminate I term of not less than four years by Your Honor to the Illinois State Penitentiary.

The Court: Mr. Jackson, your attorney, Mr. Vaughns, advises me that you wish to change your plea of not guilty to the second count of this indictment which charges you with the crime of indecent liberties with a child to a plea of guilty, is that correct?

The Defendant: Yes, sir.

The Court: When you plead guilty, Mr. Jackson, you automatically waive your right to a jury trial, you understand that?

The Defendant: Yes, sir.

The Court: Before I will accept your plea of guilty it is my duty to advise you that on your plea of guilty to the second count of this indictment which as I have said charges you with the crime of indecent liberties with a child you may be sent to the penitentiary for a term of years. It may be any number of years, not less than four and there is no maximum number—

Mr. Elsener: I think there is, 20.

The Court: I’m looking for it.

Mr. Elsener: Section 11 — 4. The top of the second column there.

The Court: Oh, yes. It may be any number of years, not less than four and not more than twenty or any span of years within that period. Knowing that do you still persist in your plea of guilty?

The Defendant: Yes, sir.

The Court: Let the record show that the defendant has been advised of the consequences of his plea of guilty to this indictment and after being so advised persists in his plea. I should have said to the second count of this indictment. The plea, therefore, will be accepted. Mr. State’s Attorney, will you please advise me what the facts are in connection with the second count of this indictment.”

The prosecutor then narrated the factual circumstances of the case which were stipulated to by the defense counsel. On October 22, 1968, at approximately 3:15 P.M., the defendant, who was then aged 19, took 13 year old Helen Thurman to an apartment where he had sexual intercourse with her. After Miss Thurman was permitted to leave, she went home and made an immediate complaint to her mother who called the police. The defendant was arrested on the following day and “in the course of a discussion with the police officers admitted his act with the girl.”

A finding of guilty was then entered, and sentence imposed after a hearing in aggravation and mitigation. On defendant’s request, the mittimus was stayed for ten days.

The defendant appeared in court ten days later, and at that time he expressed a desire to exercise his rights of appeal. The Court, after determining that he was indigent appointed the Public Defender to represent him in further proceedings and stayed the mittimus again. Four days later, the defendant once again appeared in court; and after it was established that he wanted to file a notice of appeal, the following colloquy occurred:

“The Court: I want to be sure of one thing. As I understand it, Mr. Jackson does not want a trial. He’s not asking me to vacate my finding. I’m not saying that I would. Mr. Reynolds [Assistant Public Defender]: Why don’t we ask him?

The Court: Let’s ask him. Do you want a trial?

The Defendant: Sir, I just want to appeal on this time that I got because I feel it’s too much time for a crime I didn’t commit even though I did plead guilty to it.

The Court: You have a right to appeal, but, what I want to be sure is: you don’t want a trial, am I correct? The Defendant: Right.”

The defendant contends that his waiver of jury trial and his entry of a guilty plea were not voluntarily and understandingly made, and he argues that “The trial judge in his remarks to the defendant neither attempted to make efforts to insure that the defendant was understandingly pleading guilty because he was guilty nor did the trial judge insure that this defendant actually knew what a jury trial was and the function of the fact finding process.”

The defendant changed his plea from not guilty to guilty only after he had conferred with his retained attorney and his mother. He was informed by the trial court of the nature of the charges against him and of the consequences thereof if found guilty as required by Supreme Court Rule 401(b) (Ill. Rev. Stat., 1969, ch. 110A par. 401(b)) which was then in effect, and in addition he was informed that the entry of a guilty plea automatically waived the right to trial by jury. The defendant, after receiving these admonitions, nevertheless persisted in his plea. In view of the record before us we must conclude that the defendant was fully advised of his rights and the consequences of a finding of guilty and that he entered the guilty plea both voluntarily and knowingly. See: People v. Mendoza, 48 Ill.2d 371, 270 N.E.2d 30, and People v. McCullough, 45Ill.2d 305, 259 N.E.2d 19.

The defendant next contends that the hearing in mitigation was inadequate because there was a failure to seek information concerning his life, moral character, family, or occupational history, and that as a result the trial court could not determine whether he was eligible for probation. Section 1 — 7(g) of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(g)) provides:

“For the purpose of determining sentence to be imposed, the court shall, after conviction, consider the evidence, if any, received upon the trial and shall also hear and receive evidence, if any, as to the moral character, life, family, occupation, and criminal record of the offender and may consider such evidence in aggravation or mitigation of the offense.”

While it is mandatory under Section 1 — 7(g) that a hearing in aggravation and mitigation be conducted if requested by the defendant (People v. Sessions, 95 Ill.App.2d 17, 238 N.E.2d 94), section 1 — 7(g) does not require either that the defendant or his attorney present evidence in mitigation or that the trial court seek or consider information in addition to that presented by the State or the defendant.

The defendant plead guilty to the offense of indecent liberties with a child which trader section 11 — 4(c) of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, par. 11 — 4(c)) is punishable by imprisonment in the penitentiary from four to twenty years. The record shows that the trial court conducted a hearing in aggravation and mitigation. The State, after presenting various matters in aggravation in-eluding two earlier convictions recommended a sentence of four years to four years and one day (i.e. the minimum to the minimum plus one day). Defense counsel concurred in this recommendation. Before imposing sentence, the trial court asked whether there was anything that the defendant wanted to say and he replied, “No.” The defendant was afforded an opportunity to present evidence in mitigation, but rather than presenting such evidence he chose to join in the State’s recommendation of the minimum possible sentence for the crime for which he plead guilty. The defendant having failed to present evidence cannot now complain that the hearing was inadequate.

The defendant cites People v. Smith, 62 Ill.App.2d 73, 210 N.E.2d 574, in support of his argument that it is necessary for the trial court to obtain information about the defendant in aH cases. This case is inapplicable on the facts. The Court held in Smith that the trial court in accordance with section 1 — 7(g) must conduct a hearing in mitigation when such a hearing is requested. The Court, however, specifically recognized that the burden of introducing evidence in mitigation was placed upon the defendant, and stated 62 Ill.App.2d at 79 — 80, 210 N.E.2d at 577:

“If a defendant has a clean record and a good reputation and if there are circumstances which mitigate or explain his involvement in the crime for which he stands convicted, he has the privilege to bring these factors to the attention of the trial court and, through the record, to the reviewing court if an appeal is taken. It should not be the responsibility of the trial court to initiate the inquiry or to insert material into the record so that a defendant may possibly benefit from it on appeal.”

It is finally contended that the sentence imposed was excessive. The defendant, as was pointed out above, was given the minimum possible sentence that could be imposed after pleading guilty to the offense of indecent liberties with a child; however, he urges in view of his youth either (1) that we reduce the degree of the offense from indecent liberties with a child which is punishable by imprisonment for a minimum of four years to the offense of contributing to the sexual delinquency of a minor (Ill. Rev. Stat. 1967, ch. 38, par. 11 — 5) which is punishable by fine and imprisonment for a maximum of one year or (2) that he be placed on probation.

The principal thrust of the defendant’s contention is that the four-year minimum sentence prescribed in section 11 — 4(c) of the Criminal Code of 1961 is irrational when applied to this case, inconsistent with the minimum sentences for other offenses, and ineffective as a deterrent in situations such as that presented in the case at bar. It is argued that “The four year penitentiary sentence should be employed only for persistent, professional or mentally abnormal criminals or others presenting exceptional risk to the safety of the public.” It is further argued that 'In a post-Kinsey and post-Johnson and Masters age, studies recognize that the criminal law is largely ineffective in stopping teenagers from engaging in these public nuisance activities which result in young men being housed in Joliet, when they should be establishing working backgrounds to sustain themselves in the community for the remainder of their lives.” We cannot agree that the punishment set forth by the General Assembly should be applied only in the limited fashion suggested by the defendant or that the conduct evidence in this case can be characterized merely as a “public nuisance activity.”

Reviewing courts are empowered under Supreme Court Rule 615(b) (Ill. Rev. Stat, 1969 ch. 110A, par. 615(b)) to reduce the sentence imposed or to reduce the degree of the offense of which tire defendant was convicted. This power is exercised with circumspection and caution and is as stated in People v. Ramey, 115 Ill.App.2d 431, at 438, 253 N.E.2d 688 at 692:

“When a sentence is imposed within the Emits prescribed by statute, it will not be disturbed on review unless it clearly appears the punishment is a departure from fundamental law, its spirit and purpose; or, that the punishment is manifestly in excess of the provision of Section 11 of Article II of the Illinois Constitution, requiring that aU penalties be proportioned to the nature of the offense.”

The minimum punishment imposed in the case at bar was clearly not arbitrary or oppressive, and does not constitute a substantial departure from the spirit and purpose of the fundamental law.

For the reasons set forth above, the judgment of the circuit court is affirmed.

Judgment affirmed.

ADESKO, P. J., and DIERINGER, J., concur.