author: Mr. PRESIDING JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Samuel Jackson, Defendant-Appellant.
    (No. 56677;
    First District (2nd Division)
    September 30, 1974.

      Lawrence Stephen Gallea, of Chicago, for appellant.
    ■ Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Algis F. Baliunas, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion qf the court:

After indictment, Samuel Jackson, defendant, was tried before a jury, was found guilty of the murder of Clarence Jones, and was sentenced to a term of 15 to 20 years in the penitentiary. He appeals and presents the following issues:

(1) Did an instruction on motive tendered by the State and given to the jury, deprive defendant of a fair trial?
(2) Did the trial Court’s refusal to give “clarifying” instructions on self-defense deprive defendant of due process and a fair trial?
(3) Was the evidence sufficient to prove guilt beyond a reasonable doubt?
(4) Did improper conduct by the prosecutor deprive defendant of a fair trial?

An adequate review of these issues in this case requires the presentation of a somewhat detailed summary of the evidence.

Caldonia Jones, the wife of the victim, testified as a life and death witness. When asked by the State what her family consisted of on 22 August 1970, defense counsel objected and was sustained. Nevertheless, the witness answered, “myself and six children.” The court instructed the jury to disregard the statement.

Glennie Pugh, a maid at Presbyterian-St. Luke’s Hospital under Clarence Jones’ supervision, testified that on the morning of 22 August 1970 at about 2:45 A.M., she was working on the first floor of the professional building of the hospital in the vicinity of the canteen area. Mr. Jones was in the canteen area standing next to one of the vending machines and mopp'ng a rubber mat. Defendant, dressed in street clothes rather than in work clothes, then appeared in the lobby area and walked through the doors that led into the canteen area from the lobby. Defendant was facing the witness, who had her back to Mr. Jones, when defendant stopped walking and stood in the doorway. The witness then heard defendant say to Mr. Jones, “I told you before when you pulled my card, goddamit.” The witness was a few steps from defendant when she observed defendant reach toward his waistband with his right hand and puH a gun. At this point, the witness hollered “oh, no” and ran into an adjacent washroom. After she had entered the washroom, the witness heard two loud noises which were shots. A few minutes later the witness left the washroom and saw Mr. Jones lying on the rubber mat. Defendant was not present at that time.

Thomas Dailey, director of security for Presbyterian-St. Luke’s Hospital, testified that he had picked up defendant’s employee time card from underneath the body of Mr. Jones, after the shooting. The card was punched in at 9:39 P.M. on 21 August 1970. The time indicated on the punch-out column was partially obliterated by blood, but was some minutes after 12 midnight.

Dr. E. J. Shalgos, a coroner’s pathologist, testified that Mr. Jones was struck by two or three bullets. One bullet entered the back web of the left arm and exited the anterior right chest; another bullet entered slightly below and toward the back of the left chest and exited the right chest. Dr. Shalgos stated that he did not want to imply that the victim had been shot directly in the back. When one bullet went through the body, the right arm had to be up; and when the other bullet was fired, the right arm had to be next to the trunk.

Johnny Willis, a houseman, testified that, on 22 August 1970 between 2:30 A.M. and 2:45 A.M., he was working on the third floor of the professional building of the hospital. At that time defendant came to him and inquired as to the whereabouts of Mr. Jones. The witness told the defendant that the last time he saw Mr. Jones, Mr. Jones was on the second floor. Defendant turned around, entered the elevator, and went down.

Louis Smith, an employee of the hospital, testified that on 21 August 1970 he was working in the hospital from 10 P.M. until 6 A.M. The witness was assigned by Mr. Jones, along with defendant, to work in the professional building. Around midnight, Mr. Jones asked Mr. Smith where the defendant was. The witness replied that he did not know. The witness next saw Mr. Jones around 2 A.M. in the professional building. Mr. Jones told him, “If you see Mr. Jackson tell him to go home, or either come to the office.” Sometime after 2:30 A.M., the witness was on the first floor of the professional building in the lobby, outside the canteen area; he saw defendant get off the elevator. As defendant got off the elevator, the witness told him that Mr. Jones was in the canteen area. Defendant said nothing and walked past the witness toward the canteen area. Then the witness heard the defendant say: “Jones, why did you pull my card? You won’t pull it anymore.” The witness then heard two shots. The witness testified further that he did not hear any commotion or scuffling before the shots were fired. At the time of the shooting, the witness could not see into the canteen from his position in the lobby. He did not see defendant carrying a gun.

Other witnesses for the State testified as to the arrest of defendant, and as evidence technicians.

Irene Adent, a centrex operator for the hospital, testified for defendant. Her office is located next to the canteen area, with the door to her office opening into the canteen area. At approximately 2:45 A.M., on the night in question, the witness went out that door and crossed the hallway into a ladies’ rest room. When she came out, she saw a clean-up man near the switchboard room door, mopping the black rubber padding in front of the vending machines in the hallway. She later learned that the clean-up man’s name was Mr. Jones. When she came out of the rest room, the witness also saw a clean-up woman and her cart parked in front of the switchboard door, and a smaller man standing against the wall opposite the vending machines. She later learned that the smaller man, whose face she could not see, was the defendant. The two men were conversing. When the witness was going back into the switchboard room, her back was to the smaller man, and Mr. Jones was passing her. The witness then heard the first blast, turned, and saw a gun in the hand of the smaller man. She then jumped behind the switchboard room door.

On cross-examination the witness testified that she had stayed in the rest room 4 or 5 minutes. When she came out of the rest room, the larger man was standing, talking, and holding a mop in his hands, but she did not remember seeing the smaller man. The witness did not remember hearing anything unusual prior to the first shot, other than two people conversing. The first shot was fired as soon as the witness had crossed from the rest room to her door, no more than 60 seconds after she left the washroom. When the shot was fired, the witness was looking toward her door. She turned around and saw a hand and a gun. Altogether the witness heard a total of four shots.

Samuel Jackson, defendant, testified that on .21 August 1970 he punched his time card and was to start work at about 10 P.M. At approximately 1:40 A.M. on 22 August 1970, defendant met his supervisor Mr. Jones, who told him he could go home because he had not been doing his work. The defendant testified that he was not angry over this encounter. The defendant went to Ms locker room, changed clothes, and then had lunch. At about 2:35 A.M. he went back to Ms locker to get a gun that he had kept in Ms locker for about 3 weeks. He wanted to take the gun home at that time because it was easier to get past the security guard at night without being searched. He put the gun in Ms pocket so that it was not exposed, and kept his hand on the handle.

The defendant testified further that, when he went to the time clock to punch out, his time card was not in the rack. Defendant then went to the professional building to locate Mr. Jones. Defendant saw Mr. Willis, who advised Mm that Mr. Jones might be on the second floor. Defendant then saw Mr. Smith, who told him that Mr. Jones was in the canteen.

Defendant went into the canteen area and saw Mrs. Pugh standing by her cart, and Mr. Jones mopping a rubber mat. Mrs. Pugh went into the washroom as he walked up. Mr. Jones was using a “stripper” cleaning solution on the mat. The defendant had previously gotten the solution on Ms hands, causing Ms hands to bum and itch. Defendant is blind in one eye and cannot see very well out of the other.

Defendant stood against the wall directly across from Mr. Jones, said good morning to Mr. Jones, and asked him at what time his card was punched out. Jones then raised the mop and charged defendant, saying, ‘1 told you to get the hell out of here.” Defendant turned Ms head to avoid being struck in the face with the mop. Defendant was surprised by a loud noise; the gun was in his hand, and he remembered pulling the trigger out of fear that the solution on the mop might get in Ms face and eyes. Defendant remembered two or more shots.

On cross-examination, the defendant stated that he had owned the gun for 3 years. There was no specific reason why he carried guns. The gun was loaded when he placed it in the locker. He also testified to having had “a shot” and a beer before coming to work.

Defendant’s first contention on appeal is that the giving of Illinois Pattern Jury Instruction — Criminal No. 3.04 (1968), in tMs case constitutes reversible error. This instruction provides that the State is not required to prove a motive for tire commission of the crime charged. Defendant’s argument is based on the IPI Committee Note winch follows the instruction and reads in part: “However, in the Enright case the Illinois Supreme Court observed (256 Ill. at page 234, 99 N.E. at page 941), ‘If the People claim that a motive existed inducing the commission of the act it must be proved, and, like any other circumstance, cannot be inferred * # *.’ Accordingly, if the People adduce evidence tending to prove a motive and the prosecutor argues the circumstance of motive to the jury, this instruction should not be given.” IPI — Criminal No. 3.04 (1968).

In this case, the State did adduce and argue motive evidence to counter defendant’s claim of self-defense. The State introduced uncontradicted evidence that defendant had been told by Mr. Jones sometime prior to the shooting that he should leave work because he was not doing his work, and that Mr. Jones had apparently punched out defendant’s time card before the end of the work shift, as he had done once before (an incident about which defendant had protested). The State in its closing argument raised this time card disagreement in argu-. ing that defendant had “built-up animosity” and a “motive” to commit murder.

The State’s contention that this instruction was proper is based on drawing a distinction between cases where the State uses motive evidence to establish the identity of the person committing the criminal act, and cases where the motive evidence is used to discredit defendant’s claim of self-defense. The State concedes that the jury should not be instructed that motive need not be proved where the State uses motive to establish identity. However, in this case, the identity of defendant as the person doing the shooting is not in question. In People v. Hobbs (1966), 35 Ill.2d 263, 269, 220 N.E.2d 489, 472, a self-defense case, the court stated, “The shooting was admittedly intentional. Whether it was done in self-defense is to be determined not by what led up to the argument but whether decedent drew a knife putting defendant in fear of bodily harm sufficient to warrant his killing her. And in this theory the defendant had the benefit of and was fully protected under the instruction of the right of self-defense.”

Although Hobbs appears to support the distinction between the use of motive evidence to discredit a self-defense claim and its use in establishing identity, it is not controlling on the issue presented herein. In Hobbs, the jury was instructed that the State is not required to prove motive, but the court addressed itself only to upholding the trial court’s refusal of defendant’s requested instruction to the effect that failure to show motive is a circumstance in favor of innocence. Hobbs did not address itself to the instruction in issue in this case.

The Illinois Supreme Court has recently given important sanction to the Committee Note to IPI — 3.04 by citing the Note in holding it improper for the State to have commented during final argument on defendant’s motive in a case where IPI — 3,04 was given. (People v. Man zella (1973), 56 Ill.2d 187, 306 N.E.2d 16.) Although motive evidence in Manzella was not used for the purpose of discrediting defendant’s self-defense claim, we believe that such motive evidence may be as critical to the jury’s determination of guilt or innocence in a self-defense case as motive evidence can be in establishing the identity of the wrongdoer. In determining whether a defendant acted in justifiable self-defense, a jury may, as a practical matter, attempt to test defendant’s claim that he acted to protect himself, as against an assertion by the State that he acted out of some other motive. If the evidence that the State argues in rebutting a self-defense claim of defendant includes a motive to commit murder, then the State should not, in fairness, be entitled to an instruction that the State need not prove motive.

We, therefore, hold that it was improper in this case for the jury to have been given IPI — 3.04 where the State adduced evidence tending to prove motive and argued the circumstances of that motive to the jury.

However, like the Manzella court, we do not find that the giving of this instruction, under the circumstances of this case, constitutes reversible error, because the State’s case does not rest upon the motive evidence. The critical evidence rebutting defendant’s self-defense claim (as will be discussed later herein) is the testimony of Mrs. Pugh and Mr. Smith, which, convincingly establishes defendant as the aggressor and not the self-defender. The real thrust of the evidence adduced and argued by the State, in terms of quantity and persuasiveness, was independent of motive.

Defendant’s second contention is that the denial of his tendered instructions 15, 12, 11, and 9, relating to the law of self-defense, was reversible error. IPI — Criminal No. 24.06 (1968), on self-defense, was given in this case. Illinois Supreme Court Rule 451(a) provides that IPI — Criminal instructions shall be used, unless they do not accurately state the law. If there is no IPI instruction on a subject on which the court determines that the jury should be instructed, the instruction given on that subject should be simple, brief, impartial, and free from argument. Defendant concedes that the IPI self-defense instruction given is accurate as far as it goes, but contends that it failed to inform the jury that the aggessor need not have an armed weapon before a self-defender could have a reasonable belief justifying his use of force intended or likely to cause death or great bodily harm.

The IPI instruction on self-defense which was given does not state that tire aggressor must have an armed weapon or a deadly weapon. The language of the instruction speaks to a reasonable belief that the self-defensive force is necessary to prevent imminent death or great bodily harm to oneself or a third person. The instruction does not expressly or impliedly limit the instrumentalities by which such imminent death or great bodily harm may be threatened. Defendant’s own theory of this case is that he was justified in shooting Mr. Jones because he reasonably believed that the mop carried by Mr. Jones was an instrumentality threatening great bodily harm. The self-defense instruction given was totally consistent with defendant’s theory of the case.

As evidence, however, that his tendered instructions were necessary, the defendant interjects a colloquy which took place in chambers after the verdict. The record indicates that the judge at that time agreed with defense counsel that one juror had stated that he thought Illinois law required a man to make every effort to escape before he was entitled to act in self-defense. However, defendant’s tendered instructions did not relate to the proposition that a party need not attempt to escape before he may invoke self-defense. The record further indicates that the allegation that some jurors had also stated in chambers after the verdict that they thought that self-defense applied only against one possessing an armed weapon was simply an assertion of defense counsel. In any event, the verdict of the jurors may not be impeached even by their own affidavits or testimony (People v. Stacey (1962), 25 Ill.2d 258, 184 N.E. 2d 866), much less by a mere allegation of defense counsel.

Hie third contention of defendant on appeal is that the evidence at trial was insufficient to prove guilt beyond a reasonable doubt. Defendant alleges that he shot Mr. Jones only because Jones had charged him with a mop which had been soaked with a substance which could blind defendant’s one good eye and otherwise cause serious bodily harm. The principal evidence supporting the claim of self-defense is defendant’s testimony that he was charged by decedent with a mop. There is also evidence that defendant had prior experience with the substance which he thought was on the mop, and therefore had some reason to believe that this substance was harmful. A post-mortem examination indicated that decedent must have had his right arm extended in a horizontal position in order to permit one of the bullets to have gone through his body. Mrs. Adent testified that, as she was returning to the switchboard room, her back was to defendant, and decedent, who had been mopping, was passing her. She did not testify that decedent went charging past her, nor did she say anything about the mop as decedent was passing her.

There is, however, sufficient testimony which, if believed by the jury, would support beyond a reasonable doubt a finding that defendant and not decedent was the aggressor. Glennie Pugh testified that she was facing and was close to defendant with her back to the decedent when defendant came walking toward decedent and said to him, “I told you before when you pulled my card, goddammit.” Defendant then reached into his waist area with his right hand and pulled out a gun. Mrs. Pugh then ran into a washroom a few steps away and heard a loud shot, followed by another. Her testimony, if believed, establishes that defendant had his gun out prior to any confrontation with Mr. Jones and that defendant was therefore not acting in self-defense.

Louis Smiths basic testimony is that he had heard defendant say, “Jones why did you pull my card? You won’t pull it anymore.” Mr. Smith then heard two shots. This testimony also indicates that defendant was the aggressor. That Mr. Smith did not see defendant with a weapon is not inconsistent with Mrs. Pugh’s testimony. Mr. Smith was in the lobby, and it was only after defendant would have passed Mr. Smith, that Mrs. Pugh had seen defendant draw his weapon. Irene Adent testified to having seen and heard two men conversing as she came out of the ladies’ rest room and was crossing the hallway in the canteen area to the switchboard room door, and then to having heard gun shots as she neared the door. She did not testify to anything that would specifically refute the testimony of Mrs. Pugh and Mr. Smith. While she did testify that decedent passed her as she was returning to the switchboard room, even that testimony does not specifically refute the testimony of Mrs. Pugh that Mrs. Pugh was standing a few steps away from and facing the defendant and with her back to decedent when she first saw defendant pull a gun; she did not testify that decedent passed her at that time. None of the three witnesses who were in the immediate vicinity at the time of the shooting testified to having heard a commotion or scuffling.

There is no reason to reverse the jury finding based on the determination of the credibility of defendant and the other witnesses. The postmortem report of decedent’s having had his right arm raised is as consistent with the belief that defendant had first attacked decedent as it is with defendant’s testimony that decedent had first attacked him. It need not be assumed that, simply because decedent had his right arm extended at the time he was shot, he was the aggressor.

In a self-defense case, it is the province of the jury to determine the credibility of witnesses and the weight to be given their testimony. A jury’s verdict will not be disturbed unless contrary to the evidence or so unreasonable, improbable, or unsatisfactory that it justifies a reasonable doubt of the defendant’s guilt. (People v. Johnson (1969), 112 Ill.App.2d 148, 251 N.E.2d 393.) The State’s evidence in this case, if believed, supported the finding that defendant was guilty of murder.

Defendant’s final contention is that improper conduct by the prosecutor deprived defendant of due process and a fair trial. The allegations of improper conduct relate to three areas of concern: defendant’s drinking; the reference by the victim’s wife to the victim’s family; and a reference to defendant’s prior ownership and possession of guns.

The prosecutor commented in his opening statement on a "drinking problem” of defendant, and then questioned one witness on direct examination as to defendant's prior use of alcohol. In order to warrant reversal, the comment and testimony complained of must be of such nature as to have influenced the jury in a manner that resulted in prejudice to the defendant. (People v. Nemke (1970), 46 Ill.2d 49, 263 N.E.2d 97.) There is no showing here that the said testimony and comment had such prejudicial effect. The matter was insignificant in the light of all the evidence.

The victim’s wife testified, over an objection already sustained, that she had six children. The jury was instructed to disregard her statement. In his closing argument the prosecutor merely referred to the decedent as “a family man.”

In People v. Bernette (1964), 30 Ill.2d 359, 371, 197 N.E.2d 436, 443, the Illinois Supreme Court stated:

“From these cases has devolved the rule that where testimony in a murder case respecting the fact the deceased has left a spouse and family is not elicited incidentally, but is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury instructed to disregard such evidence. In like manner, we have held that jury argument by the prosecution which dwells upon the decedent’s family or seeks to relate a defendant’s punishment to the existence of family is inflammatory and improper.”

In this case, mention of the decedent’s family was elicited incidentally over a sustained objection and the jury was immediately instructed to disregard it, and the prosecutor’s closing argument neither dwelled on decedent’s family nor sought to relate defendant’s punishment to the existence of a family.

Defendant testified on direct examination that he owned a gun and that he had used that gun to shoot decedent. Given this admission, the questioning of defendant upon cross-examination as to prior ownership of guns was not of such prejudicial nature as to warrant reversal. The jury already knew that defendant owned a gun; it was not prejudicially harmful for the jury to believe that he may have owned a gun for over 6 years (as was suggested at trial). The jury was instructed to disregard the prosecutors question as to whether gun collecting was defendant’s hobby.

We conclude that defendant received a fair trial and was not substantially prejudiced in the eyes of the jury by the prosecutor’s conduct.

For the foregoing reasons, the judgment of conviction is affirmed.

Affirmed.

STAMOS and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE STAMOS

license: Public Domain

text:
    Michael Cowan, Plaintiff-Appellee, v. Insurance Company of North America, Defendant-Appellant.
    (No. 58719;
    First District (2nd Division)
    September 24, 1974.

      Tom L. Yates and Delbert T. Been, both of Chicago, for appellant.
    Howard R. Weiss and Joseph P. Griffin, both of Chicago, for appellee.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This is an appeal from an order of the circuit court granting summary judgment for plaintiff and denying defendant’s motion to dismiss. The action was brought for declaratory judgment on a comprehensive liability insurance policy issued by defendant and sought a determination that defendant, pursuant to the policy of insurance, was obligated to satisfy an outstanding judgment entered against plaintiff.

So far as here material, the complaint alleged that defendant had issued a policy to plaintiff insuring against liability for injuries sustained by any person; that while the policy of insurance was in effect, plaintiff was involved in a traffic dispute with one Harry J. Craw; that in the ensuing argument, plaintiff inadvertently came into contact with Craw causing the latter to lose his balance and fall to the ground; and that the act causing the fall and injury of Craw was unintended and accidental.

The complaint further alleged that as a result of the foregoing, Craw filed an action for assault and battery against plaintiff which was defended by defendant’s attorneys under a reservation of rights, on a combination of defenses of accidental injury and self-defense; that after a jury verdict, a judgment for $8,000 was entered in favor of Graw which the present defendant has refused to pay; and that such refusal is contrary to the contract of insurance entered into between the parties.

Defendant, in a motion to dismiss, argued that by virtue of the previous litigation between Graw and Cowan, the latter was collaterally estopped to deny that the injury inflicted upon Graw was intentional and, therefore, since any act committed by the insured with intent to cause injury is excluded from coverage under the contract of insurance, defendant was absolved from liability.

After the filing of various pleadings and the submission of memoranda, the order of the trial court denied defendant’s motion to dismiss and granted plaintiff’s motion for summary judgment.

On appeal, defendant urges reversal of the judgment based upon the terms of the policy of insurance and upon the cause of action for assault previously adjudicated between Graw and Cowan. The exclusionary clause in question provided that coverage does not extend to “any act committed by or at the direction of the insured with intent to cause injury or damage to person or property.” In support of defendant’s assertion that the Graw-Cowan incident falls within the exclusionary provision, we are referred to the complaint in the assault action against Cowan. The charging portion of the complaint alleged:

“1. That at Chicago, Illinois, on the 31st day of December, 1965, the defendant (Cowan) violently assaulted the plaintiff (Graw) and wrongfully struck him with his fists on the body and knocked him down and fractured his right leg;
2. That said assault was willful [sic] and malicious.”

Defendant concludes that the allegations of the complaint and the verdict thereon conclusively determine that Cowan intended to injure Graw. See Wendell v. Union Mutual Fire Insurance Co., 123 Vt. 294, 187 A.2d 331; Abbott v. Western National Indemnity Co., 165 Cal.App.2d 302, 331 P.2d 997.

Plaintiff initially emphasizes that the issue in the present cause is not whether he committed an intentional tort against Graw, but rather, whether he intended to injure Graw. Notwithstanding the commission of an intentional act by the insured, plaintiff asserts that the exclusionary clause is applicable only when it can be demonstrated that the injury was intentionally inflicted. In pointing to the distinction between an intentional act and an intended injury, plaintiff refers us to Smith v. Moran, 61 Ill.App.2d 157, 209 N.E.2d 18, and Baldinger v. Consolidated Mutual Insurance Co., 15 App.Div.2d 526, 222 N.Y.S.2d 736, wherein the courts held upon the facts there involved, that an assault and battery was not an intentional injury within the meaning of an exclusionary clause identical in effect to one before this court.

In the present case, plaintiff argues that in his complaint he alleged that there was a minimal contact between himself and Graw, and that the resulting injury of a fractured leg was unintentional and bizarre in relation to the incident. Plaintiff further argues that it is the defendant who is estopped from relitigating the issue of whether the injury was intentionally caused. This argument is predicated upon the fact that although Graw, in his complaint for assault, prayed for exemplary damages and a finding that “malice is the gist of the action,” the verdict order affirmatively discloses that the jury assessed “0” as exemplary damages. Because the jury failed to award exemplary damages, plaintiff concludes that any finding of an intentionally caused injury is necessarily precluded.

Although both parties argue the applicability of the collateral estoppel doctrine, and disagree in their respective assessments of the prior adjudication, we feel compelled to question the basic assumption from which their arguments follow. We initially note that questions of estoppel and the question of whether an injured party’s claim against an insured is within the policy’s coverage are not completely unrelated. The interrelationship of the two is discussed in Apex Mutual Insurance Co. v. Christner, 99 Ill.App.2d 153, 160-163, 240 N.E.2d 742:

“Difficulties arise when an injured party brings an action against an insured, and investigation by the insurer reveals a breach of condition or an essential fact tending to place the claim outside the coverage of the policy. The insurer’s interest in defending against the claim while restricting its obligation to the terms of the policy, presents the insurer with an urgent strategical problem: whether or not to defend the insured in court. [Citation.]
It is well settled that assumption of the insured’s defense constitutes a waiver by the insurer of all questions of policy coverage. [Citations.] If, therefore, in spite of its doubts as to coverage, the insurer elects to take over the insured’s defense, it will after-wards be estopped from denying its own liability under the policy. The estoppel referred to here is ‘estoppel in pais’; it is ordinarily justified on the ground that the insurer has prejudiced the insured’s right to control his own defense. [Citations.]
With this in view, the insurer may wholly decline to assume the insured's defense when coverage is in doubt. Having refused to enter the litigation, the insurer cannot subsequently be estopped from setting up in its own defense any matter not decided in the original action. [Citations.] Abstention presents a hazard, however, since the insurer will be ‘collaterally estopped’ in the subsequent suit as to all issues which had been decided in the prior action. [Citations.] Further, the danger of collateral estoppel is substantially increased if the insured and injured parties are inclined to conspire for the purpose of establishing such facts as they may select to place themselves under the policy’s coverage provisions. [Citation.] Finally, the nonliability of the insured is potentially the most effective bar to any policy claims against the insurer. Where the possibility exists of malting a successful defense on behalf of the insured, the insurer has much to gain from placing its first reliance upon this line of action, since by declining to defend, it would sacrifice all opportunity to contest the injured party’s claim.
Clearly, then, neither of these two alternatives is very satisfactory to an insurer. Sims v. Illinois Nat. Cas. Co. of Springfield, 43 IllApp2d 184, 199, 193 NE2d 123, cited with approval in Lincoln Cas. Co. v. Vic & Mario’s, Inc., 62 IllApp2d 262, 267, 210 NE2d 329, discusses the insurer’s options in such a predicament:
However, all authorities agree that quite often an insurer is faced with a dilemma as to whether to defend or to refuse to defend. In cases of doubt the answer is simple. (1) Seek a declaratory judgment as to its obligations and rights or (2) defend under a reservation of rights.
The reservation of rights is a means by which, prior to determination of the liability of the insured, the insurer seeks to suspend the operation of the estoppel doctrines through a nonwaiver agreement. When coverage is in doubt, the insurer will offer to defend the insured under such an agreement, reserving to the insurer all of its policy defenses in case the insured is found liable. Courts have generally held such agreements valid. [Citations.]
Estoppel in pais operates as a result of the insurer’s monopolization of the insured’s defense, since the insured, in reliance thereon, refrains from seeking other counsel. But no such reliance can be claimed where the insurer has defended under a reservation of rights, since the insured could have rejected the insurer’s offer of counsel if he had chosen to do so. [Citations.] Whether, in reserving rights, the insurer also avoids the strictures of collateral estoppel is, however, unsettled. [Citation.] It may be that since collateral estoppel arises from privity and since the non-waiver agreement does not alter the fact of privity, it would not suspend the operation of collateral estoppel, thus substantially diminishing the value of a reservation of rights in many cases. [Citation.]”

The question lastly posed in Apex is, in general terms, the issue presented in the instant case. From the analysis in Apex, it is apparent that when an insurer defends a claim against its insured under a proper reservation of rights, the question of estoppel is no longer an equitable one, but rather that branch of res judicata denominated estoppel by verdict or collateral estoppel. As a general rule, collateral estoppel may be invoiced only when both the party invoking the doctrine and the party against whom it is invoked were adverse parties, or their privies, in the prior adjudication. (I.L.P.Judgments §404 (1956).) However, in certain instances, exception is made where liability rests upon derivative responsibility, such as indemnitor and indemnitee. (Sanitary District v. United States Fidelity & Guaranty Co., 392 Ill. 602, 65 N.E.2d 364; Palmer v. Mitchell, 57 Ill.App.2d 160, 206 N.E.2d 776.) This rule is based upon the desirability of judicial expediency and the presumed identity of interests between the indemnitor and indemnitee. As stated in Farm Bureau Mutual Automobile Insurance Co. v. Hammer (4th Cir. 1949), 177 F.2d 793, 799:

“The underlying purpose of the doctrine is to obviate the delay and expense of two trials upon the same issue — one by the injured party against the indemnitee and the other by the indemnitee, or the injured party against the indemnitor. This is possible because it is assumed that the interests of the parties to the contract of indemnity in opposing the injured person’s claim are identical; and it is accomplished by giving the indemnitor an opportunity to appear in the first suit on behalf of the indemnitee so that everything that can be offered in exculpation of the indemnitee by either party to the indemnity contract may be presented. The indemnitor may not be under a contractual obligation to defend, but if he fails to assume the burden of the defense he takes the risk for he is bound by any judgment against the indemnitee where their interests in the defense of the suit are identical.”

Thus, an insurer who defends (or fails to defend) an action for negligence (within the policy coverage) against its insured, cannot, after an adverse judgment against the insured, claim that it is not bound by the prior adjudication when the sole question in both the original suit and the subsequent suit against the insurer is the negligence of the insured. (See Carolina Veneer & Lumber Co. v. American Mutual Liability Insurance Co., 202 S.C. 103, 24 S.E.2d 153; State Farm Mutual Automobile Insurance Co. v. Shelton (Ky.), 368 S.W.2d 734.) However, the reason for the rule no longer exists when there is no identity of interests between the insured and insurer in the original tort action. A typical situation is when a tort claim is brought against an insured for negligence, but investigation by the insurer leads to the conclusion that the act was intentional and, hence, not within the coverage of the policy. The dilemma of the insurer immediately presents itself: if it defends the action, it may later be precluded from raising the intentional nature of the wrongful act under an estoppel in pais argument; if it refuses to defend the action, which on the face of the complaint is within the policy coverage, it faces the possibility of being subsequently bound by the conclusive nature of the judgment. (See Miller v. United States Fidelity & Guaranty Co., 291 Mass., 445, 197 N.E. 75.)

In instances where the insurer refuses to defend, the better-reasoned cases hold that the insurer is not bound by the prior adjudication on questions of policy coverage. The reason for foregoing the rigors of the collateral estoppel concept is stated in the Hammer case:

“It is, however, obvious that the binding effect of a judgment against the insured does not extend to matters outside the scope of the insurance contract, and that the Insurance Company is neither obligated to defend nor bound by the findings of the court if the claim against the insured is not covered by the policy. To hold otherwise would be to estop the Insurance Company by the acts of parties in a transaction in which it has no concern and over which it has no control, and to deprive it of its day in court to show that the transaction is foreign to the contract of insurance.” 177 F.2d at 799-800.

The reasoning of the Hammer decision has been followed in subsequent cases. Stout v. Grain Dealers Mutual Insurance Co. (4th Cir. 1962), 307 F.2d 521; Sims v. Nationwide Mutual Insurance Co., 247 S.C. 82, 145 S.E.2d 523.

Moreover, when the insurer finds itself in a conflict of interest situation, and opts to defend the tort claim under a properly communicated reservation of rights, we are of the opinion that the principles stated above are equally applicable. (See Fisher v. Firemens Fund Indemnity Co. (10th Cir. 1957), 244 F.2d 194; Centennial Insurance Co. v. Miller (E.D. Cal. 1967), 264 F.Supp. 431.) In this regard the reservation of rights, to be effective, must be communicated to the insured, and must fairly inform the insured of the insurer’s position. (44 Am.Jur.2d Insurance § 1556.) By properly reserving its rights to question coverage and assert policy defenses, the insurer is not bound under the equitable doctrine of estoppel (see Fisher v. Firemen’s Fund Indemnity Co., supra), and because a conflict of interest does exist between the claim in the original tort claim and the question of coverage, it cannot be said that the reservation of rights operates as a private waiver agreement of the collateral estoppel doctrine (See Iowa Mutual Insurance Co. v. Fred M. Simmons, Inc., 262 N.C. 691, 138 S.E.2d 512); the issues as to coverage and tire issues in the original tort claim are different, and therefore, the concept of collateral estoppel does not apply.

From these principles we address ourselves to: (1) the issue relating to the insurer’s liability under the contract of insurance; and (2) whether the Craw-Cowan litigation necessarily adjudicated the conduct of Cowan as it relates to the issue of coverage.

Under the contract of insurance, coverage does not extend to “any act committed by or at the direction of the insured with intent to cause injury or damage to person or property.” The language of the exclusion has been held to be ambiguous, and accordingly, it must be construed against the insurer. Baldinger v. Consolidated Mutual Insurance Co., 15 App.Div.2d 526, 222 N.Y.S.2d 736; Gray v. Zurich Insurance Co., 65 Cal.2d 263, 54 Cal. Rptr. 104, 419 P.2d 168; American Insurance Co. v. Saulnier (D. Conn. 1965), 242 F.Supp. 257. Consequently, the construction generally placed upon the language is that injury or damage is “caused intentionally” within the meaning of tire exclusionary clause, if the insured has acted with the specific intent to cause harm to a third party. (Morrill v. Gallagher, 370 Mich. 578, 122 N.W.2d 687; Hawkeye Security Insurance Co., v. Shields; 31 Mich. App. 649, 187 N.W.2d 894; see Smith v. Moran, 61 Ill.App.2d 157, 209 N.E. 2d 18.) Under this construction, it has been held that neither wilful, wanton, or reckless misconduct amounts to a specific intent to cause injury. (Crull v. Gleb (Mo. App.), 382 S.W.2d 17; American Insurance Co. v. Saulnier, supra.) Therefore, before defendant can claim that it is absolved from liability, it must be demonstrated that Cowan specifically intended to injure Craw.

Precedent to a determination of the issues actually adjudicated in the Graw-Cowan litigation, we think it appropriate to note some general observations on the nature of assault and battery and self-defense, and their relationship to the exclusionary clause in question. Although the exclusion clause becomes operative only when a specific intent to harm is demonstrated, the intent with which tort liability is concerned is not necessarily a hostile intent, or a desire to do any harm, but rather an intent to bring about a result which will invade the interests of another in a way that the law will not sanction. (Prosser, Handbook of the Law of Torts, § 8, at 31 (4th ed. 1971)). Accordingly, the gist of the action for battery is not the hostile intent of the defendant,'but rather the absence of consent to the contact on the part of the plaintiff. (Prosser, supra, § 9, at 36). Moreover, when an action for assault and battery is defended on the ground of self-defense, the issue of defendant’s “intent” may take on additional considerations. See Gray v. Zurich Insurance Co., supra; Brasseaux v. Girouard (La. App.), 269 So.2d 590.

In Gray, the court addressed itself to an insurer’s duty to defend, under an exclusionary clause similar to the present one, an action brought on assault and batteiy and defended on a theory of self-defense. The court noted that the insured “might have been able to show that in physically defending himself, even if he exceeded the reasonable bounds of self-defense, he did not commit wilful and intended injury, but engaged only in nonintentional tortious conduct.” 65 Cal. 2d at 277, 54 Cal. Rptr. at 113, 419 P.2d at 177.

The rationale of the statement in Gray is explained in Brasseaux. Under Louisiana’s direct action statute, plaintiff brought an action to recover from defendant and his liability insurer for injuries sustained when he was shot by defendant. Liability was denied on the ground of self-defense. Upon a review of the facts, the court originally held that defendant was not justified in using a dangerous weapon in self-defense, and was liable to plaintiff for damages. It further held that the injuries sustained by plaintiff were not intentionally caused by the insured within the meaning of the exclusionary clause, and hence the insurer was hable. Citing Prosser, the court noted that a person, in defending himself, may have an honest belief that he is faced with a situation calling for self-defense, when in fact, a reasonable man would not so believe. In such cases, the defendant is held liable because his evaluation of the need for action was unreasonable, and not because he intended to injure the plaintiff. On rehearing, the court re-evaluated the evidence and held that the defendant “pulled the trigger with the specific intent of inflicting bodily harm on plaintiff.” Although from a reading of the decision on rehearing, it is not entirely clear whether the court changed its position on the law, or merely its application to the record before it, we find the reasoning of the earlier opinion persuasive in that situations may arise in which a defendant may not substantiate his.claim of self-defense, and yet, for purposes of determining insurance coverage, it may be found that the harm was unintended. (See dissenting opinion on rehearing, 269 So.2d at 601.) Thus, because the basis of tort liability is dissimilar from the issue posed by the exclusionary language, the question of whether the insured specifically intended to cause injury to a third party does not necessarily formulate an issue which is resolved in the tort litigation.

In the instant case, the question of whether this court can decide whether the Graw-Cowan litigation necessarily adjudicated the issue of whether Cowan committed an act with the specific intent to cause injury must be determined by the complaint in that action and selected instructions, for we are without the benefit of the report of proceedings of the Graw-Cowan matter. The complaint alleged a wilful and malicious assault, sought a finding that malice was the gist of the action, and prayed an award of exemplary damages. The instruction concerning punitive damages provided, inter alia:

“And in case the jury believe from the evidence that the assault was wanton, reckless or vicious, and uncalled for in character, then the jury may add to such damages, if any such you find, such a sum as they may believe from the evidence would be reasonable and just as smart money or punishment.” (Emphasis added.)

Although the emphasized words are in the disjunctive, the verdict form affirmatively discloses that no exemplary damages were awarded. Furthermore, no special interrogatory as to whether “malice is the gist of the action” was submitted. We are left with tire allegations of the complaint which charge a “wilful and malicious assault”; yet the only instruction which attempts to define the character of the insured’s alleged conduct is the following instruction on wilful and wanton conduct:

“When I use the expression wilful and wanton conduct’ I mean a course of action which shows actual or deliberate intention to harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others.” (Emphasis added)

Since the instruction is in the disjunctive, it cannot be presumed that the jury necessarily decided the issue of an intentional injury, for, as earlier noted, an adjudication that an insured acted with a conscious disregard for the safety of others, is not equivalent to a showing that one acted with a specific intent to harm a third party. American Insurance Co. v. Saulnier, supra; Crull v. Gleb, supra.

It is well-settled that in order for a previous adjudication to be conclusive, it must appear clearly and certainly that the identical and precise issue was decided in the former action. If it appears that several distinct issues may have been before the court in the first action, and there is no clear indication on which of them judgment was rendered, the estoppel will not be applied, for the reason that the court may have decided on one of the other issues. (I.L.P. Judgments § 381 (1956). The burden of establishing a defense of estoppel by verdict is on the party who invokes it. (I.L.P. Judgments, § 434 (1956). From the proofs submitted by defendant, and the respective arguments of counsel thereon, we cannot say that issue of whether Cowan specifically intended to harm Graw was necessarily adjudicated. Accordingly, the parties are not collaterally estopped from litigating whether Cowan’s conduct fell within the meaning of the exclusionary clause.

The issue before this court is whether summary judgment should have been granted by the circuit court. To resolve this question we must look to the record before this court and the principles of law set forth in our opinion. We think the premier issue of fact, whether Cowan acted with the intent to harm Graw was still a disputed issue of fact. That it was still disputed is evident from the contentions of the parties before this court as to the effect of certain trial actions in, and the interpretation of, the initial tort action. Therefore, the question of whether Craw’s resultant injury was intentionaUy inflicted and therefore precluded from coverage, was not properly subject to resolution, based on this record, by means of a summary judgment.

Although not so presented, plaintiff presents what we perceive to be an alternative argument to the contention that defendant is collaterally estopped from denying an unintentional injury. Plaintiff alleges that he was defended in the prior litigation by a law firm selected and paid for by the defendant, and that it thereupon became the duty of defendant to protect and adjudicate tire issue of whether there was an “intentional injury.” Plaintiff asserts that defendant breached this duty by failing to submit a special interrogatory as to whether “malice is the gist of the action,” and argues that the “ambiguities” in the Graw-Cowan litigation resulted from defendants failure to “clarify” this important issue. Because defendant’s inaction was detrimental to plaintiff, plaintiff contends that defendant should be estopped.

Defendant responds by alleging that plaintiff did not object to the reservation of rights or the defense of the earlier action, and made no attempt to have a personal attorney present; therefore, he should not now be heard to complain.

The contentions of the parties touch once again upon the dilemma of the insurer who must decide upon a course of action in a claim against the insured to which there may be a policy defense. This is especially true when the existence of a policy defense may turn upon facts to be determined in the tort action.

In defending an action against the insured when the existence of a policy defense may turn upon facts to be determined in that litigation, the insurer must act openly and with the utmost loyalty to its insured both in initially explaining the insurer’s position in the matter and in the actual defense of the tort litigation. In the first instance, it is important that the insurer adequately inform the insured -of the rights which it intends to reserve; for it is only when the insured is adequately informed of the potential policy defense that he can intelligently choose between retaining his own counsel or accepting the tender of defense counsel from the insurer. Accordingly, bare notice of a reservation of rights is insufficient unless it makes specific reference to the policy defense which may ultimately be asserted and to the potential conflict of interest. (See Meirthew v. Last, 376 Mich. 33, 135 N.W.2d 353.) If the insurer has adequately informed the insured of its position, and the insured accepts the tender of defense counsel, the insurer has not breached its duty of loyalty and is not equitably estopped from denying its obligation to indemnify. (See Meirthew v. Last, supra.) It remains bound, however, both ethically and legally, to protect the interests of the insured in the defense of the tort claim. The latter obligation is separate and distinct from the insurer’s duty to inform the insured of its position, and is not waived, as defendant’s argument suggests, by mere acquiescence to the conduct of the insurer. However, looking to the substance of plaintiff’s argument, we find it to be without merit.

In the tort litigation, although the complaint sought a finding that “malice was the gist of the action,” the plaintiff in that action, Graw, failed to submit the special interrogatory to the jury. It is plaintiff’s argument that upon Graw’s failure to do so, it became the obligation of the defendant to submit the interrogatory. We note however, that had defendant submitted the interrogatory, there existed the possibility that the jury would return the interrogatory in the affirmative, thus resulting in a higher degree of the insured’s culpability. Clearly, the breach of duty would have lain in the act, not the omission.

It is our opinion the facts and question raised by virtue of the Graw-Cowan incident,- together with the language of the exclusion clause in the contract of insurance, clearly could have been more expeditiously and equitably resolved by means of the early filing of a declaratory judgment action. Apex Mutual Insurance Co. v. Christner, supra, suggests such a course of action. The facts here present a possible conflict of interest between the insured and insurer under tire policy. There is also an obvious professional conflict under the facts in this case for an attorney representing an insurance company to also represent an insured. This conflict the organized bar should strive to avoid.

When an insurer becomes aware of the existence of such possible conflict it should immediately file a declaratory judgment action joining, as in this case, both Graw and Cowan as co-defendants. In this manner these conflicts are ventilated in a proper judicial environment thereby preserving the integrity of the insurance policy as well as the attorneys who find themselves in such a distasteful situation.

In light of the foregoing, the judgment is reversed and remanded with directions that the cause be set for trial in accordance with the views expressed herein.

Reversed and remanded.

LEIGHTON and DOWNING, JJ., concur.

       No special interrogatory as to whether “malice is the gist of the action” was submitted.

       Illinois law holds that when the insurer refuses to defend an action, which on the face of the complaint is within the policy coverage, the insurer breaches its duty to defend under the terms of the contract. Having breached its contractual duty, the insurer is “estopped” from raising issues of policy coverage. (Sims v. Illinois National Casualty Co., 43 Ill.App.2d 184, 193 N.E.2d 123; McFadyen v. North River Insurance Co., 62 Ill.App.2d 164, 209 N.E.2d 833; Palmer v. Sunberg, 71 Ill.App.2d 22, 217 N.E.2d 463.) The estoppel referred to in these cases is equitable in nature and follows only when there is a breach of contract. Consequently, these decisions are not authority for the legal doctrine of collateral estoppel, but do serve to point to another aspect of the insurer’s dilemma.

       To illustrate: in the instant case the insurer’s investigation may have suggested a conflict between the insured’s acts and whether such acts, if established by the evidence, will prove “intent” thereby providing the insurer a claim of exclusion under the policy.

       Plaintiff argues that since the jury failed to award exemplary damages, defendant should be collaterally estopped from asserting that the injury was intentional. The award of punitive damages, however, was ultimately discretionary with the jury and its absence does not, as plaintiff argues, necessarily lead to the conclusion that the injury was unintentional. Moreover, even assuming we accept plaintiff’s notion, it does not follow that defendant is collaterally estopped from proving that the claim is contrary to the contract of insurance. For in an action based upon assault and battery, the injury may be either specifically intended or merely the unintended result of an intentional act. In the latter case the insurer is bound to indemnify, but not in the former. In this sense, there is no identity of interests in the defense of the assault and battery action, and the reasoning of the Hammer decision is fully applicable. However, the estoppel in such cases is not necessarily mutual, and, for reasons further explained, we do not rest our decision on this point.


author: Mr. JUSTICE EBERSPACHER Mr. PRESIDING JUSTICE G. MORAN

text:
    William Jackson, Plaintiff-Appellant, v. The Board of Trustees of Junior College District No. 530, Defendant-Appellee.
    (No. 73-331;
    Fifth District
    September 19, 1974.

      Drach, Terrell and Deffenbaugh, of Springfield, for appellant.
    R. Theodore Clark, Jr., and Gerald D. Skoning, both of Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, and James T. Garrison, of Garrison & Garrison, of Marion, for appellee.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This case involves an action brought by the plaintiff-relator, William Jackson, for a writ of mandamus and a complaint for a declaratory judgment. The petition for the writ and complaint for declaratory judgment were filed on March 28, 1973, in the circuit court of Williamson County. The defendant-respondent did not file an answer but filed a motion for summary judgment. The motion for summary judgment was heard and granted on July 18,1973. From the court’s order, the plaintiff has brought this appeal.

The facts of this case are basically not in dispute. The plaintiff was a teacher hired by the defendant Board of Trustees to teach in John A. Logan College for the school year 1969-1970. He performed duties as a full-time nontenured faculty member in the athletic department. He was reemployed by the defendant for the academic year of 1970-1971 and then again in 1971-1972. This dispute concerns his failure to be employed for the school year 1972-1973.

The record includes the separate written contract for employment for the academic year 1971-1972. The document itself was one page, set forth the terms of employment, and included “3. That the teacher shall abide by all rules, regulations, and orders established by the Board.” The college handbook of John A. Logan College also was in existence and use during all times relevant hereto. It provided among other things that a nontenured faculty member would be notified annuaUy in writing on or before March 15 of the year of his employment as to whether or not his appointment has been renewed and if renewed, the terms and conditions of employment for the next academic year.

The plaintiff was not notified in writing that he was not going to be reemployed until May 17, 1972. The plaintiff had however, on April 7, 1972, been oraHy advised by the dean of instructional services and the chairman of the department of health and physical education that he would not be retained in the 1972-1973 academic year due to cost cuts.

The Board of Trustees on March 7, 1972, at a regular meeting of the Board, unanimously passed a resolution directing the administration to hold in abeyance the annual written notification requirement set forth in the college handbook. The Board met again on April 6, 1972, and at that time voted five for and one abstention to continue to hold in abeyance until and including April 26, 1972, the annual written notifications of appointment renewal.

At no time has the defendant Board of Trustees ever taken any action or notified the plaintiff that he would not have his contract renewed for the 1972-1973 academic year other than the notice given first orally and then in writing by the dean of instruction.

The college handbook also contains a section called “Grievance Procedure”. This section, after setting forth the various procedure for handling grievances, sets “Time Limits” which states that all grievances must be brought within 10 school days after the event that occasioned the grievance occurred.

The plaintiff-appellant presents but one issue for review. “Must the defendant Board of Trustees give the plaintiff written notice of non-renewal on or before March 15, 1972?” However, before we- examine the issue presented by the plaintiff we shall first examine the status of the pleadings of the plaintiff and appropriateness of the remedy sought.

The plaintiff filed a petition for a writ of mandamus to issue, to compel the defendant to “forthwith assign the petitioner, William Jackson, as an instructor of physical education at John A. Logan College for the ' 1972-1973 academic year at a salary determined by the Board to be commensurate with other salaries of faculty members of similar experience and service. * * *”

The plaintiff argues that because the Board failed to notify him by March 15, 1972, he should therefore be automatically employed for the following academic year. He asserts that:

“The Defendant Board of Trustees having failed to comply with the terms of its own rules and regulations requiring that the probationary teachers be given notice on or before March 15 as to whether or not they will be reemployed, the Plaintiff William Jackson is entitled to be considered as reemployed as he had an expectancy of employment, which under the circumstances, could not be denied to him. Board of Regents vs. Roth, 408 U.S. 564 (1972); Perry v. Sinderman, 408 U.S. 593 (1972).”

We have read and studied the cited Roth and Perry cases. We find however that both cases are decided on grounds and issues far removed from the present cause. Indeed the only similarity is that those cases also involved college teachers. Both of these cases were considered together by the United States Supreme Court and both hold that the teacher did not have a right to a hearing because of alleged violations of constitutional rights. These cases shed no light on the case before us.

There are but two alternatives to the problem presented by this case. First, we can assume that the mies and regulations of the “College Handbook” are binding upon the college vis-a-vis the requirement of notification to nontenured instructors. Second, we can determine that the rules and regulations are not binding upon the college. We shall consider the latter first.

Taking the position that the college handbook is not binding upon the college would require that we conclude that the basis of the dispute between the plaintiff and the defendant would rest squarely upon the provisions of the employment contract and any applicable statutes. As we note from the four comers of that instrument the plaintiff is able to find little support for his position. The contract provides for employment up and until June 11, 1972, and is silent as to any future employment. Likewise, a review of the applicable statutes reveals no support for plaintiff’s alleged right to written notification. Unlike the Illinois School Code (Ill. Rev. Stat., eh. 122, par. 24 — 1 et seq.), the Public Junior College Act (Ill. Rev. Stat., ch. 122, par. 101 — 1 es seq.) does not require that a junior college board give notice of nonrenewal to a nontenured faculty member, or that such a faculty member is presumed to be employed for the next academic year if he receives untimely or insufficient notice. Thus, neither the contract nor the applicable statute afford the plaintiff the right to future employment.

We next consider the other alternative and assume that the college handbook is binding upon the college. Making this assumption however, we must conclude that the entire college handbook is binding upon the parties hereto. Indeed the plaintiff has specifically agreed to so be bound under paragraph 3 of the employment contract. This being the case, we then by necessity refer to the grievance procedures as set forth in the handbook. The plaintiff would have been entitled to notice on March 15 and would have a right to and should have proceeded under the grievance procedures as set up by the college handbook. Thus even if we assume that the college is bound by the handbook the plaintiff’s requested relief must fail because of the failure of tire plaintiff to pursue his administrative remedies within the time set forth. United Steelworkers v. American Manufacturing Co., 363 U.S. 564; United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 574; United Steelworkers v. Enterprise Wheel & Car Corporation, 363 U.S. 593; Drake Bakeries, Inc. v. Local 50, American Bakery & Confectionary Workers, 370 U.S. 254. See also Gordon v. Thor Power Tool Co., 55 Ill.App.2d 389, 205 N.E.2d 55.

Finally assuming ad arguendo that the plaintiff would be entitled to some relief under the rationale that the university failed to follow its own rules and that the plaintiff was not required to pursue his contracted grievance procedure, then we must determine whether the proposed remedy is appropriate.

To obtain mandamus relief the relator, the plaintiff herein, must show not only a clear right to the relief sought to be compelled, but also a corresponding duty on the part of tire respondent, the defendant Board of Trustees, to do the act sought to be compelled. (People ex rel. Cantu v. School Directors, 58 Ill.App.2d 282, 208 N.E.2d 301.) Furthermore, when a mandamus action is brought against school officials and any reasonable doubt exists as to the question of discretion or want of discretion, the court should hesitate to interfere, preferring to extend the benefit of doubt in favor of the school officials (People ex rel. Altman v. Board of Education, 90 Ill.App.2d 21, 234 N.E.2d 362), as long as such action is not unreasonable, arbitrary or discriminatory. People ex rel. Loughry v. Board of Education, 342 Ill.App. 610, 97 N.E.2d 615, cert. denied, 342 U.S. 944, 96 L.Ed. 702, 72 S.Ct. 557, rehearing denied, 343 U.S. 921, 96 L.Ed. 1334, 72 S.Ct. 675.

The record before us is barren of any allegation or evidence that the action complained of was unreasonable, arbitrary or discriminatory. In. its absence the requested remedy of mandamus would be inappropriate.

In view of the foregoing, we find that the .trial court was correct in denying the petition for mandamus and granting defendant’s, respond-exit’s, motion for summary judgment. The judgment of the circuit court of Williamson County is, therefore, affirmed.

Judgment affirmed.

CARTER, J., concurs.

Mr. PRESIDING JUSTICE G. MORAN

concurring in part and dissenting in part:

The majority opinion has failed to consider several important aspects of this case. My consideration of them requires that I concur in part and dissent in part.

To begin with, the nonrenewal of appellant’s contract was invalid because no action was ever taken on the contract by the Board of Trustees. The Board voted to suspend the notice requirement and the dean of instructional service gave appellant oral and written notice of nonrenewal, but there is no indication that the Board either authorized or ratified his acts. While the Public Junior College Act (Ill. Rev. Stat., ch. 122, par. 101 — 1 et seq.), does not expressly require that the board itself take action, the authority to dismiss faculty is vested in the board (Ill. Rev. Stat., ch. 122, par. 103 — 42). The Illinois cases in point have not dealt with the provisions of the Public Junior College Act, but without the benefit of language expressly limiting the power to dismiss faculty to the board of education under other sections of chapter 122, they have uniformly held that the board of education must itself exercise its authority not to renew a teacher’s contract. (Elder v. Board of Education, 60 Ill.App.2d 56, 208 N.E.2d 423; Board of Education v. Rockford Education Association, 3 Ill.App.3d 1090, 280 N.E.2d 286; Bessler v. Board of Education, 11 Ill.App.3d 210, 296 N.E.2d 89.) These decisions rest on the sound rationale that where the people have chosen members of the board to exercise discretionary powers, such powers should only be exercised by those in whom they have placed their confidence. (Stroh v. Casner, 201 Ill.App. 281.) Neither the fact that different sections of chapter 122 were involved nor their added notice provisions (see Ill. Rev. Stat., ch. 122, par. 24 — 11) disturbs the logic of the rule. The actions of the dean of instructional service should be considered of no effect.

The majority analyzes appellant’s arguments by examining his right to notice of nonrenewal alternatively assuming the college handbook does apply and does not apply. Although the handbook was not expressly incorporated, the only reasonable and fair construction of the language of section three of the contract is that the handbook was part of the contract as a rule or regulation. Any interpretation of the words excluding it would be illogical and make the language of the section meaningless. Furthermore, given the nature of the regulations contained in the handbook, it is clear that rights and duties were imposed on both parties. Appellant was entitled to notice of nonrenewal before March 15 as a contract right. By the same logic, the appellee Board argued it had the right to suspend the notice requirement. I cannot find any specific basis in the Public Junior College Act or college handbook for this asserted power to unilaterally alter contract rights of employees. Under Ill. Rev. Stat. 1971, ch. 122, par. 103 — 42 the Board has the power “to establish policies governing their employment or dismissal * * but this general grant of authority cannot be construed to support the Board’s unilateral decision to alter an employee’s contract rights. If they were allowed such power, they could redefine any employee’s duties and conditions of work by holding in abeyance any regulation they had promulgated not affirmatively required by statute. The Board has no such authority to arbitrarily tamper with existing contract rights. The Board must meet its contractual obligations like any other agency of the state. Moreover, even assuming the Board had such extraordinary authority, this conclusion would not affect the Board’s duty to take action itself concerning the nonrenewal of appellant’s contract.

The majority raises as a defense that appellant failed to comply with the grievance procedure set out in the handbook. A close examination of the terms of the procedure reveals that it was intended to cover complaints concerning working conditions, not disputes about dismissal or non-compliance with the formal requirements for discharge. If not totally inapplicable, the procedure is so ill-suited to provide the employee with a reasonable chance to defend against the administration’s actions that the Board should not be able to set up the defense of failure to exhaust administrative remedies when the remedies provided are futile.

While the Board wrongfully failed to comply with the procedural requirements for not renewing appellant’s contract, the relief appellant seeks, mandamus, is inappropriate in this case. The majority correctly states the rule that to obtain mandamus relief, the relator must show “not only a clear right to the relief sought to be compelled, but also a corresponding duty on the part of the respondent, the defendant Board of Trustees, to do the act sought to be compelled * * Appellant has failed to demonstrate a clear right to reinstatement or a clear duty on the part of the Board to do so. The injury appellant has suffered though real, does not create a right to such an extraordinary remedy. Similarly, the Board’s omissions cannot be reasonably deemed to create such a great duty. Since appellant received verbal notice shortly after March 15, the appellees’ conduct cannot be considered arbitrary. Appellees’ decision not to renew appellant’s contract due to financial problems was not unreasonable, arbitrary or discriminatory. For these reasons, I concur in the court’s judgment that mandamus is inappropriate.

       The pertinent language of which is:

        “GRIEVANCE PROCEDURE

        Definition. A grievance is a difference of opinion with respect-to thé meamng or application of Board policies as set forth in the College Handbook which relates directly to salaries, fringe benefits, and employment conditions. PROCEDURE. A grievance shall be processed as follows:
      STEP 1: Any faculty member who has a grievance shall submit it in writing to the appropriate Department Chairman or person designated by the Board for this purpose. The grievance shall set forth in detail all relevant facts upon which it is based.
      STEP 2: * * *
      STEP 3: * * *

        Time Limits. No grievance shall be entertained or processed unless it is submitted within ten (10) school days after the event or occurrence given rise to the grievance.
      Adopted: December 1, 1970.”


author: Mr. JUSTICE GUILD

text:
    Brown-Strauss Corporation, Plaintiff-Appellee, v. James D. Larson, Defendant-Appellant. Singer Metal Company, Inc., Plaintiff-Appellee, v. James D. Larson, Defendant-Appellant.
    (Nos. 72-236, 72-238 cons.;
    Second District
    September 30, 1974.

      Bishop & Crawford, of Chicago, for appellant.
    Samuel A. Diamond, of Looze & Kinne, of McHenry, and John D. Corby, of Macomb, for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The above two cases were consolidated for this appeal, the facts being substantially the same. On February 14, 1972, plaintiff filed its complaint against Water Control Corporation and James D. Larson for material sold in the amount of $8371.37. On February 15 plaintiff filed its second complaint against the same parties for material sold in the sum of $1151.43. Summons in the two suits were issued on the respective dates of filing. Both summons were returnable on March 8, 1972, under the provisions of Supreme Court Rule 101(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 101(b).) Both summons were served upon the defendants on March 4, 1972, but the sheriff did not return the same until March 8, 1972, and the cases were continued to March 15, 1972.

The defendants did not appear and on that date both defendants were defaulted. On March 24, 1972, the attorney for the defendants filed the appearance of both the corporation and James D. Larson in both suits. Nothing further was done by the defendants until May 12, 1972, after the defendants had been served with a citation to discover assets. On May 12 the matter was continued to May 19, and at that time the defendant filed a petition to vacate the judgments under section 72 of the Civil Practice Act. (Ill. Rev. Stat. 1971, ch. 110, par. 72.) On May 19, 1972, the trial court denied the defendant’s petition and this appeal followed.

The contention of the defendant, James D. Larson, in his section 72 petition, is that he individually at no time entered into a contract of purchase for the materials in question with the plaintiff; that the sole obligation for the materials purchased is that of the defendant Water Control Corporation. No allegation of due diligence is contained in the section 72 petition, nor is any freedom from negligence or excusable mistake alleged. And as counsel for the plaintiff points out, no facts are set forth in the petition which could conceivably raise an inference of diligence or excusable mistake.

It was not until 66 days after the default judgments were entered that defendant filed his petition under section 72. Further, this was not done until after a citation to discover assets had been filed.

While the provisions under Supreme Court Rule 101(b), applicable to suits of $15,000 or less, provide for a return date in an unduly short period of time, factually the knowledge of the default judgment certainly was a matter which could have been easily ascertained by defense counsel. Not until 9 days after the judgment had been entered did defense counsel file his appearance and he did nothing further until his clients were served with a citation to discover assets.

Although defendant has proceeded under the provisions of section 72, supra, he contends that the judgments entered herein are void and subject to collateral attack at any time. It is true, of course, that a void judgment may be collaterally attacked at any time because a void judgment is without any legal effect. However, the judgment entered herein is not void. In Baker v. Brown (1939), 372 Ill. 336, 23 N.E.2d 710, the Illinois Supreme Court stated at page 340:

“The general rule is, a judgment rendered by a court having jurisdiction of the parties and the subject matter, * * * is not open to contradiction or impeachment in any collateral action or proceeding, except for fraud in its procurement * * *.”

Justice Smith of the Illinois Appellate Court in Johnson v. Hawkins (1972), 4 Ill.App.3d 29, 33, 280 N.E.2d 291, in considering a case factually similar to the instant case, has stated the law as it applies herein, viz.,

“Laches also bars the right of the plaintiff to reinstate this case. The plaintiff as well as the defendant has the duty and obligation to follow the cases in which he is a litigant. It is, of course, desirable and fundamental to our system of jurisprudence that the litigants be given an opportunity to have their cases decided upon the merits. However, as a corollary to this, it is necessary that there be a prompt and expedient determination of the matters in dispute and a finality to this determination. Relief under Section 72 of the Civil Practice Act is discretionary with the court; it is granted only upon a showing of due diligence and the remedy is not designed to relieve a party from his own neglect. [Citations.]”

In the case before us the defendants were properly served; counsel entered the appearance of both the corporation and defendant Larson; tire court had jurisdiction of the parties and the subject matter; no fraud is alleged. At best, in the facts alleged, the judgment is voidable and not void. It cannot, therefore, be collaterally attacked.

Decisions in Illinois interpreting section 72 are legion in their holdings that not only must the defendant have a meritorious defense, but that due diligence or excusable mistake must be shown as well, as a basis for opening up a default judgment. E.g., Brandes v. Illinois Protestant Children’s Home, Inc. (1962), 33 Ill.App.2d 319, 179 N.E.2d 425 (abstract opinion).

Defendant has failed to make any allegation in his petition under section 72 of the Civil Practice Act, in his briefs or arguments as to due diligence or mistake on his part, which is a condition precedent to the opening of the judgment after 30 days from the entry thereof. The judgment of the trial court is affirmed.

Affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Edward Kelly, Defendant-Appellant.
    (No. 72-197;
    Second District
    September 30, 1974.

      Ralph Ruebner and Adam Lutynski, both of State Appellate Defender’s Office, of Elgin, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford (James W. Jerz and Edward Morris, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant was jointly indicted with one Claude Jackson, a/k/a Mickey Charles Me Connell, for armed robbery and kidnapping. The defendant was tried separately before a jury, was found guilty of both offenses and was sentenced to 5-15 years for the armed robbery and 3-5 years for the kidnapping.

Two issues are raised by the defendant. The first contention is that reversible error was committed when the prosecutor attempted to, or did, impeach a defense witness. The second contention is that the sentence is excessive.

On the night of April 15, 1971, two Negroes entered the Albert Pick Motel in Rockford, Illinois. They inquired about a room and then at gunpoint they obtained money from two women in the office of the motel. The women were unable to open the safe, and one woman was then bound and placed on the floor. Then one of the defendants took the other woman upstairs in the motel at gunpoint and forced the hotel proprietor and his wife to come down to the office and open the safe. Finally, the men taped up all four of the people, robbed them, and left.

The two men were in a rented car and apparently drove to the Union Hall Department store parking lot in Rockford, Illinois. Paula Bird was getting into her car when two men came up to it and she locked the doors. One of the men pounded on the window with a gun and she immediately started honking her horn. The men then left her car and accosted one John Hooley who was approaching the rear of the Union Hall. As Mr. Hooley came into the parking lot the men came up to his car, opened the door, and under gun point forced Mr. Hooley to drive them to Madison, Wisconsin. This trip took approximately 2 hours. There, Hooley was put out of his car and the car was subsequently recovered by the Madison police department.

The defendant was arrested in Gary, Indiana, and was brought to Rockford where he was identified “in a police line-up” by all four of the people who had been robbed in the motel. He was also identified by John Hooley.

The defendant presented an alibi defense in which he contended that on the night of the robbery and the kidnaping he had attended a party in Gary, Indiana. Five of his friends, as well as the defendant, testified to this effect. Anthony Reed, called by the defense on direct examination, testified that the defendant was at the party in question on the night of April 15. On cross examination the State attempted to impeach Reed’s testimony and queried him as to a purported statement that he had made to the police wherein Reed told the Rockford police that the defendant had “admitted that he robbed the Albert Pick Motel with a guy by the name of Mickey.” Reed denied that he had ever related the defendant’s conversation to the police. The court, out of the presence of the jury, stated that the evidence adduced in this regard was for the impeachment of Mr. Reed only. The court further stated that the statement was not substantive proof of the offense charged and could only be used for the purpose of “impeaching or the testing of the credibility of the witness Reed.”

A police officer was called who testified that he had previously heard defense witness Reed make a statement that the defendant- had been “involved in a stick-up here in Rockford” with a man by the name of Mickey. The police officer further testified that Reed gave them a description of the defendant and the area in Gary where the defendant lived.

The court instructed the jury in this regard (People’s Instruction #1):

“Any evidence which was received for a limited purpose should not be considered by you for any other purpose.”

and (People’s Instruction #9):

“Evidence that on some former occasion a witness made a statement inconsistent with his testimony in this case may be considered by you only in deciding the weight to be given to the testimony of that witness.”

In closing argument the prosecutor in referring to Reed’s testimony stated:

“I don’t present this evidence of what the defendant said to Anthony Reed as direct proof of the defendant’s guilt here, and I don’t want you to consider it that way. I do present it, however, concerning the credibility of Mr. Reed when he says one thing in court and he says another thing when he talked to the police officer, and I think you have a right to consider that.”

In the case before us the witness Reed was called as an alibi witness by defense and not by the State. He had made a prior oral statement inconsistent with his testimony and as indicated, an attempt to impeach him was made by the State. In the statement made by Reed to the police officers Reed purportedly stated that defendant told him that he was “involved in a stick-up here in Rockford.” We do not believe that, in view of all the testimony in this case, that this statement had any effect on the jury, particularly in view of the above statement of the State’s attorney and the court instructions thereto.

The defendant in support of his contention that this cross-examination of Reed constitutes reversible error has cited People v. Ferguson (1973), 11 Ill.App.3d 914, 297 N.E.2d 658. This case is readily distinguishable from the factual situation before us. In Ferguson, a State’s witness had testified in a prior trial. In the subsequent trial he was again called as a State’s witness and testified contrary to his prior testimony in the other trial. The State then moved to have the court call the witness as: tire court’s witness and the State’s attorney then read to the jury the transcript of the testimony of this witness from the prior trial. The court in Ferguson stated that the testimony was not competent as evidence but “ordinarily would have been admissible only for the purposes of impeachment, but in the instant case the material contained in the transcript was so highly prejudicial to the accused it should not have been presented to the jury for any reason.” 11 Ill.App.3d at 915, 297 N.E.2d at 660.

The defendant also cited People v. McKee (1968), 39 Ill.2d 265, 235 N.E.2d 625. In McKee an alleged accomplice was called by the State. The accomplice on the stand protested his innocence and that of the defendant McKee and stated that any prior statement he had made was a he. The accomplice was called as the court’s witness and on the theory of “impeachment” the State was permitted to confront him on a question and answer basis with every item that he had made in his prior statement to the police. In McKee the basic testimony against the defendant was the prior statements of the accomplice, purportedly introduced for impeachment of his credibility.

In People v. Tate (1964), 30 Ill. 2d 400, the supreme court stated:

“* * * we have held that the admission of a confession or statement made outside the presence of a defendant is not competent, even for the purpose of impeachment, where such statement or confession bears directly upon a defendant’s guilt or innocence of the crime, and is likely to have a prejudicial influence on the minds of the jury. [Citations.]” (30 Ill.2d at 403.)

In Tate a co-defendant had made a prior statement in which he stated that the defendant, Emmett Tate, stabbed the victim. The co-defendant had been convicted upon a plea of guilty. He was brought back from the penitentiary to testify as a witness for the defense and testified that he alone committed the murder and that the two Tates had not participated. The prosecutor then read to the jury a series of questions and answers from a statement in which the co-defendant had stated that both Marshall and Emmett Tate had fought with the victim and that Emmett had stabbed him. This statement was further brought to the jury’s attention by a stipulation in which the parties stipulated that the court reporter would testify that he took a statement from the co-defendants in question and answer form. The court went on to say that the “[i]mpeachment of a witness by a prior contradictory statement is of course an accepted technique.” (30 Ill.2d at 403.) The court then considered its opinion in People v. Tunstall (1959), 17 Ill.2d 160, and pointed out that “[i]nasmuch as the jury was neither informed nor instructed that the statement could be considered only for the limited purpose of determining * * * credibility, * * * its introduction into evidence left the jury free to look upon it as further evidence of the defendant’s guilt # (30 Ill.2d at 404.) The court found in Tate, as in Tunstall, that the jury was not adequately instructed as to the limited purpose for which the impeaching evidence could be used.

In a factually similar case, People v. Montgomery (1972), 51 Ill.2d 198, a co-defendant called as a witness by the defendant, testified that he did not know the defendant on the date of the crime but had met him for. the first time 2 months later in the Cook County Jail. On cross-examination,. ostensibly for the purpose of impeaching his credibility, a prior inconsistent statement in question and answer form was read to him before the jury in which he had described the crime in detail involving both himself and the defendant. The court recognized the principle that a prior inconsistent statement was admissible to impeach testimony of a witness at trial and that the purpose of so doing is not to prove the facts stated by the witness but to cast doubt on his testimony. However, the court found that “examination of the record persuades us that the trial court permitted the cross-examination to go far beyond the limits of a proper foundation for impeachment and permitted the witness to testify to statements which could only have served to confuse and prejudice the jury.”

We do not find the facts in Tate and Montgomery to be applicable to the situation before us in the instant case. As the appellate court stated in People v. Yocca (1967), 84 Ill.App.2d 423, 228 N.E.2d 599, in discussing both People v. Tunstall and People v. Tate:

“In People v. Tate, 30 Ill.2d 400, 197 N.E.2d 26 (1964), the defendant relied upon the Tunstall decision. * * * The prosecutor was permitted to read from a statement made by him after his arrest, not in Tate’s presence, in which he said that Tate had stabbed the deceased. The Supreme Court held that this was prejudicial error and reversed Tate’s conviction. The court observed, however, that impeachment of a witness by a prior contradictory statement is an accepted practice and stated that it would not adhere to the broad statements in the Tunstall opinion. It pointed out that in Tunstall, as in the Tate case, the jury was not adequately instructed about the limited purpose for which the impeaching evidence could be used. The Tate opinion makes it clear that a prior inconsistent statement of a codefendant, made outside the presence of the accused, is admissible to impeach his credibility but that the jury must be instructed that the evidence is for this purpose only and must not be taken as proof of the truth of the matters asserted in the statement.” 84 Ill.App.2d at 427.

The defendant further contends that the decision in People v. Hannah (1973), 11 Ill.App.3d 232, 296 N.E.2d 387, is applicable to the instant case. In Hannah the trial judge in a bench trial, considered a statement made by defendant’s mother which was ostensibly admitted for impeachment. The trial judge stated that the statement was evidence of the guilt of the defendant. The appellate court found that the trial court treated the statement as substantive evidence of the defendant’s guilt and reversed and remanded. That is not the situation at all in the case before us.

While the cases concerning the admissability of a prior inconsistent out of court statement of a witness, or co-defendant, for the purpose of impeachment of the witness, when such statement also incriminates the defendant, may appear to be confusing, there appears to be a line of demarcation based upon the facts in each case. In determining the appropriateness of the admission in evidence of such prior inconsistent statements, the courts have uniformly considered several factors: First, whether the prior inconsistent statement is admitted as substantive evidence or solely for the purpose of impeachment, even though the statement may contain an admission of guilt by the defendant. Obviously such statement may not be admitted under the guise of impeachment. Second, the cases reveal that the statement should not be read to the jury in detail, such as in question and answer form. Finally, it is essential that the jury should be properly instructed that such statement was not admitted for the purpose of showing the evidence of the guilt of the defendant, or, as substantive evidence, but merely for the purpose of impeaching the credibility of the witness.

In People v. Collins (1971), 49 Ill.2d 179, the supreme court considered a portion of this question in detail. In that case the supreme court was asked to reverse the existing rule and find that a prior inconsistent statement of a witness could be considered by the trier of fact as substantive evidence. This the supreme court refused to do. But, that opinion in no way held that a prior inconsistent statement could not be used, under proper cautionary instructions, to impeach the credibility of the witness.

As just indicated, factually, Montgomery, McKee and Ferguson are distinguishable from the case before us. In the instant case, the only evidence adduced from the defense witness Reed was that he had previously stated to the police that the defendant had told him that defendant had committed the robbery of tire Albert Pick Motel. The testimony elicited on cross-examination of the defense witness and the rebuttal testimony of the police officer, together with the cautionary instructions relative to impeachment and the statement by the State’s attorney that the impeachment of the defense witness was not to be considered by the jury as to the guilt of the defendant, is entirely different from that of the cases cited by the defendant. Those cases pertained to prior statements of witnesses, or the defendant, describing in detail the offenses charged against the defendant, admitted for the alleged purpose of impeaching the credibility' of the respective witness.

In the case of People v. Moses (1957), 11 Ill.2d 84, 87, 142 N.E.2d 1, the supreme court considered almost the identical situation presented to us in the instant case. In Moses a witness who had pleaded guilty and was serving his sentence testified in a co-defendant’s trial that Moses did not take part in the crime and had no knowledge of it. On cross-examination the witness was asked whether he had not made a statement to the prosecutors in the presence of the penitentiary guards that Moses had participated in the crime. The supreme court, in holding that such cross-examination was proper, stated:

“Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. (People v. Smith, 391 Ill. 172, 176.) Such evidence is not admitted as proof of the truth of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency, and an instruction to that effect should be given upon request. (McCormick, Evidence, 73; 3 Wigmore on Evidence, sec. 1018.) It is therefore not hearsay.” (Reversed on other grounds.) (Emphasis added.)

In the case before us the testimony of the defense witness Reed was not introduced as substantive evidence of the defendant’s guilt. The evidence of defendant’s guilt was overwhelming. We cannot conceive that the testimony of the defense witness Reed in any way confused the jury. Nor do we find that the conviction was in any way based upon the prior statement of the defense witness Reed to the police implicating the defendant. Five witnesses positively identified tire defendant; the first four of which were with the defendant for a considerable time while they were being robbed, and the fifth witness was in the car with the defendant who rode in tire front seat for a period of 2 hours while the co-defendant held a gun at the back of the witness’ head. There is no question, nor is the contention made, that the identification of the defendant by these five witnesses was an error.

Defendant further contends that the sentence imposed was excessive. As pointed out by the State, the defendant has “impressive criminal credentials.” The defendant had been convicted of three offenses and at the time of this trial: an attempted burglary and bond jumping which was pending in Cook County, an attempted grand larceny which was pending in the State of Washington, and a weapon’s violation which was pending in the State of Ohio. The sentences imposed for the offenses committed herein are well within the permissible standards in view of the background of tire defendant and the severity of the offenses committed.

Judgment affirmed.

T. MORAN, P. J., and SEIDENFELD, J., concur.