text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert G. Merkel, Defendant-Appellant.
    (No. 73-216;
    Second District
    November 7, 1974.

      Frank Wesolowski, Jr., Public Defender, of Wheaton (Robert H. Heise, Assistant Public Defender, of counsel), for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendant, Robert G. Merkel, was found guilty by a jury of the murder of his wife and sentenced to the penitentiary for 30-90 years. In this appeal the defendant contends the following:

(1) that he was not proven guilty beyond a reasonable doubt of the offense of murder,

(2) that the court erred in refusing to instruct the jury that they should not find the defendant guilty of murder unless the facts exclude every reasonable theory of innocence,

(3) that the court erred in not suppressing a statement made by him at the hospital,

(4) that the prosecutor’s closing arguments were so prejudicial as to deprive him of a fair trial and,

(5) that the sentence imposed upon him was excessive.

The defendant and his wife, Jesse Merkel, were separated and divorce proceedings were to be heard on November 14,1972. Jesse Merkel and her three children were residing with her sister in Elmhurst. On the morning of November 13 the decedent left her sister’s residence with the three children to drive them to school. She stopped at her home around 9 in the morning, parked her car in the driveway and entered the premises. A scream was heard and the defendant was seen running from the back door. The three children and a neighbor attempted to get into the residence but were unsuccessful. The police were called and they broke the basement door down and entered the premises together with a Mrs. Stevens, the neighbor, and Mrs. Koprowski, decedent’s sister. The body of Jesse Merkel was found in the hallway. There was a pool of blood in the kitchen and blood extended from that point to where the body was found in the hallway. A pair of eyeglasses were recovered in the pool of blood in the kitchen. These were subsequently identified as the defendant’s eyeglasses. The decedent had been shot in the head and died within 48 hours without regaining consciousness,. „ '

The attorney for. the defendant contacted the Elmhurst Police Department shortly thereafter and advised the police that the defendant was being taken to the Forest Hospital in Des Plaines. Police officers went to the hospital where they met the defendant in the parking lot. Sgt. Holder asked the defendant if he knew why they were there and the defendant answered, “Yes.” He was asked if he had a weapon on his person and he replied, “No.” Sgt. Holder then read to. the defendant his Miranda warnings in tire hospital. The defendant replied that he understood the warnings. The defendant was asked where the gun was and he replied that he had thrown it away as he was driving towards Chicago. At this point the defendant terminated questioning until his attorney was present. At the trial the defendant did not testify.

■ .We consider first the contention of the defendant that the State failed to establish his guilt beyond a reasonable doubt. At the outset it is to be noted that Peter Bianco, the attorney for the defendant, on the day of the shooting, called the Elmhurst Police Department, talked to officer Thomas Hanlan and the attorney inquired about Mrs. Merkel’s condition and volunteered the information that the defendant was on his way to the Forest Hospital. The attorney further stated that the police would not have any trouble in apprehending the defendant as he seemed docile. Officer Hanlan had not. mentioned that the police were looking for Mr. Merkel when attorney Bianco called the police department. Christine, one of the three children of the decedent and the defendant, was in the car at the time of the shooting and heard her mother scream. She then saw the defendant running from the back door of their residence. Two other witnesses saw the defendant running from the Merkel residence. Likewise, the glasses of the defendant were found in or next to the pool of blood in the kitchen from which point the body, apparently had been dragged into tire hallway.

In addition to the above, a party stating that he was the defendant called his place of employment and stated that he would not be in to work on the day in question. Likewise, further testimony adduced at the trial indicated that the defendant had inquired about the obtaining of a gun from a fellow worker about a month before the murder. On the day in question the motor vehicle of the defendant was not parked at the residence of the parties, apparently having been parked away from or to the rear of the premises. The estrangement of the parties and the fact that a hearing was set on the divorce proceedings for the day after the killing was presented to the jury.

The defendant contends that there was a reasonable hypothesis arising from the evidence which was consistent with the defendant’s innocence and which would leave a reasonable doubt as to his guilt. In support of this contention he theorizes that the decedent could have brought the gun to the premises; that another possibility would be a third person being present; that in view of their marital problems the death might have been accidental resulting from a scuffle and that the defendant fled in fear. The supreme court in People v. Russell (1959), 17 Ill.2d 328, 331, 161 N.E.2d 309, 311, stated that it was possible, of course, to conjure up hypotheses which might be inconsistent with the defendant’s guilt. The court went on to state:

“But the requirement that the defendant’s guilt be proved beyond a reasonable doubt does not mean that the jury must disregard the inferences that flow normally from the evidence before it. Here all of the inferences from the evidence pointed toward the defendant’s guilt. The jury was not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.”

In People v. Bernette (1964), 30 Ill.2d 359, 367, 197 N.E.2d 436, 441, the supreme court stated:

“However, a conviction may be sustained upon circumstantial evidence as well as direct evidence, (People v. Russell, 17 Ill.2d 328,) it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime.”

The court then concluded that under the facts of that case that they did not see how the jury could have reached any other conclusion than it did.

We find the same situation to prevail here and we adopt the reasoning of People v. Marino (1970), 44 Ill.2d 562, 580, 256 N.E.2d 770, 780, where that court considered a conviction based upon circumstantial evidence as well as direct evidence and the court stated:

“[I]t is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.”

Considering all the evidence herein, and we do not feel it is necessary to determine whether the same is circumstantial or direct, we briefly have the following: the decedent went to the home of the parties, a scream was heard, the defendant was seen running from the premises, the house was locked and within moments the decedent was found with a bullet through her head. No gun was found in the house and the defendant stated that he had thrown a gun away on his way to Chicago. We fail to see how the jury could have found other than the defendant was guilty beyond a reasonable doubt. It is true, of course, as is the situation in the case of many, if not most, homicides, that there was no actual eyewitness to the shooting. That does not mean that guilt of the defendant may not be proved by the facts and circumstances which indicate, beyond a reasonable doubt, that he is the perpetrator of the crime of murder.

The second contention of the defendant is closely allied to the first argument and is based on the fact contended for by the defendant that the proof of guilt herein is entirely circumstantial. Defendant, therefore, contends that the trial court committed reversible error when it refused to give IPI-Criminal Instruction #3.02 in its entirety when all of the evidence was circumstantial. The instruction tendered by the prosecution and given by the court was as follows:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of [the] defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.” (IPI — Criminal #3.02 (1968).)

As in People v. Holt (1972), 7 Ill.App.3d 646, 288 N.E.2d 245, counsel for the defendant objected and contended that the instruction was improper because it did not contain the following additional paragraph:

“You should not find the defendant guilty unless the facts and circumstances proved exclude every reasonable theory of innocence.” (IPI — Criminal #3.02 (1968).)

As in Holt, a lengthy discussion took place herein between counsel for the defendant, counsel for the State and the court. The court refused to give the second part of this instruction. However, counsel for the defendant did not tender the proposed instruction containing the second part of IPI — Criminal #3.02. These identical questions were raised again in People v. Lenker (1972), 6 Ill.App.3d 335, 285 N.E.2d 807. In substance, in both People v. Holt, supra, and People v. Lenker, supra, the two courts came to the same conclusion. That is that the failure of the trial court, if it were error, to give the second part of IPI — Criminal #3.02 does not require reversal unless it appears that justice has been denied or that the verdict resulted from such error. As the court said in People v. Holt (1972), 7 Ill.App.3d 646, 651, 288 N.E.2d 245, 250:

“Circumstantial evidence is legal evidence and a conviction based upon circumstantial evidence may be sustained just as if the conviction were based upon direct evidence.”

In both cases the courts found, as we do here, that the record reveals no reasonable theory of innocence arising from the evidence adduced at this trial. We therefore conclude that the failure of the trial court to give the complete instruction defendant complains of neither denied him justice nor did it in any way influence the jury as to his guilt based upon the evidence before them.

A conviction based upon circumstantial evidence must be based upon facts and circumstances of such conclusive nature as to lead on the whole to one conclusion, and that is to produce a reasonable and moral certainty that the accused and no one else committed the crime in question or, phrasing it differently, it is sufficient if all the evidence taken together satisfies the jury beyond a reasonable doubt as to the guilt of the defendant. In considering a case involving circumstantial evidence of defendant’s guilt similar to the instant case, the court in People v. Fetterman (1973), 14 Ill.App.3d 120, 131, 302 N.E.2d 218, 226, stated:

“A jury’s determination of a defendant’s guilt will not be set aside by a reviewing court unless it is so unsafisfactory as to cause a reasonable doubt of his guilt. (People v. Tribbett (1968), 41 Ill.2d 267, 242 N.E.2d 249.) Fetterman’s conviction was based on circumstantial evidence. There is no distinction in law between direct and circumstantial evidence. Circumstantial evidence is legal evidence and it is accorded the same weight and effect as direct evidence. A conviction based on circumstantial evidence will be sustained when the evidence is of such a convincing character that it satisfied the jury and the reviewing court beyond a reasonable doubt that the defendant committed the crimes of which he is accused.”

Considering all of the evidence previously mentioned herein, we find no reason as to how the jury might entertain a reasonable hypothesis that the defendant did not commit the crime in question.

The defendant admits that he received the proper Miranda warnings; however, he contends that he was incapable of knowingly and intelligently waiving his rights as he was emotionally upset and that his answers were hesitant and unsure. After the Miranda warnings were given to the defendant in the hospital the police officer asked the defendant what had been done with the gun. The defendant replied that he had thrown it from his car while driving on the John F. Kennedy Expressway towards Chicago between Mannheim and California Avenues. At this point the defendant indicated that he did not wish to answer any more questions and no further questions were asked. The issue, therefore, presented is whether or not the statement by the defendant that he threw a gun from the window of the car shortly after the murder was admissible. The defendant contends, as indicated, that he was so emotionally upset that this statement should not have been admitted. The defendant further contends that if there were a waiver by the defendant of his rights that it was involuntary in nature and, lastly, that the questions should not have been asked without the presence of the defendant’s attorney. Examination of the record does not disclose any evidence that the defendant did not understand the nature of the Miranda warnings nor do we find that the defendant’s response as to the disposition of a gun was other than voluntary. While it may well be true that the defendant was, in fact, emotionally upset, that does not in itself create a situation where he may not be queried after he has been given the proper warnings. Defendant further contends that no questions should have been asked the defendant by the police officer if, in fact, the police knew the defendant was represented by counsel. No authority is cited for this proposition nor are we familiar with any. The defendant was given the Miranda warnings and the one question was asked as to where the gun was. The officer stated that he did this so that the gun would not fall into the hands of somebody who might be hurt by the same. We do not consider it trickery or cajolery that would vitiate the voluntariness of the statement. Immediately, when the defendant stated he did not wish to answer any more questions, no more questions were asked of him by the officers. We, therefore, find that the motion to suppress the one statement relative to the gun was properly denied.

The defendant next states that the prosecutor’s closing argument denied the defendant a fair trial. It is to be specifically noted that no objection was made at the trial to the closing argument of the prosecution. We have examined the record carefully and find that the statements made by the prosecution, while in certain instances may not be technically correct, in substance we do not believe that they in any way were a deliberate misstatement of facts. We do not find them to be so prejudicial, even when considered as to their cumulative effect, as to deprive the defendant of a fair trial, nor do. we find that the cases cited in support of this contention by the defendant are in point. The counsel for the defendant has stated that it is a well established rule in Illinois that generally, if an error is not preserved by an objection and a court ruling not made thereon, the defendant may not raise the error on appeal. He states, however, that where the prosecutor’s argument is seriously prejudicial that this court may consider the same even though no objection was interposed in the trial court. (People v. Moore (1956), 9 Ill.2d 224, 137 N.E.2d 246; People v. Fort (1958), 14 Ill.2d 491, 153 N.E. 2d 26.) We do not find that those cases are factually applicable to the prosecutor’s argument complained of herein. Defendant further states there are two tests to determine if the prosecutor’s remarks were so highly prejudicial as to deny the defendant of a fair trial and that the same may be considered even though no objection was made at the trial. In support of this statement the defendant has cited People v. Weinstein (1966), 35 Ill.2d 467, 220 N.E.2d 432. Factually, Weinstein is readily distinguishable from the instant case. In Weinstein 17 objections were made to the prosecutor’s argument to the jury. The court went on to hold that in some instances objections were not made, but the court would consider the improper arguments not objected to where (1) the evidence is evenly balanced, or, (2) where the nature of the argument is such as to deprive the accused of his constitutional rights. In the case before us we do not find that the evidence is evenly balanced; on the contrary, we find the evidence to be overwhelming as to the guilt of the defendant. Likewise, as indicated, examination of the statements of the prosecution are not so prejudicial as to deprive the defendant of his constitutional rights, As a matter of fact, the errors assigned to the arguments of the prosecution are comparatively minor in nature or are substantially corroborated by the evidence, an example being where the prosecution comments on the defendant contacting his attorney prior to the apprehension of the defendant. This was in evidence that the defendant had contacted his attorney and it was in evidence that the attorney had called the police and advised the police where the defendant was, that he was docile and that they would have no problem in apprehending him. Additionally, the defendant’s counsel referred to this in his closing argument, which was then commented upon by the prosecution in rebuttal.

Lastly, the defendant contends his sentence was excessive. As we have indicated numerous times, and as the court has stated, with relation to sentences imposed, this court will not substitute its judgment for that of the trial court where there is no obvious abuse of discretion. People v. Lane (1974), 2nd Dist. Docket No. 72-166; People v. Sprinkle (1974), 56 Ill.2d 257, 264, 307 N.E.2d 161; People v. Allen (1974), 56 Ill.2d 536, 309 N.E.2d 544.

The judgment of the trial court is affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE GUILD

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Ricardo Munoz, Defendant-Appellee.
    (No. 73-102;
    Second District
    November 7, 1974.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Witten-strom, Jr., Assistant State’s Attorney, of counsel), for the People.
    Michael P. Toomin, of Chicago, for appellee.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James R. Kavanaugh, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of this court:

Pursuant to Supreme Court Rule 604(a) (Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)), the State appeals from the dismissal of 13 indictments based upon the bar of the statute of limitations. The issue presented herein is whether or not an indictment which shows that the acts alleged to have been committed occurred beyond the general statute of limitations must allege facts which avoid the bar of the statute.

On January 2, 1973, the Kane County grand jury returned 23 indictments charging Ricardo Munoz with various counts of reckless conduct and involuntary manslaughter. On June 15, 1973, the defendant was found guilty of involuntary manslaughter and reckless conduct as charged in one of the indictments and was sentenced to a term of 1-3 years. The defendant has filed a separate appeal from that conviction.

The 13 indictments involved in this appeal all charged the defendant with the misdemeanor offense of reckless conduct. All 13 charges involved acts which were purportedly committed by the defendant more than 18 months prior to the return of the indictments. The applicable general limitations statute (Ill. Rev. Stat. 1971, ch. 38, par. 3 — 5) provides that a prosecution for a misdemeanor must be commenced within 1 year and 6 months after its commission, unless tire statute describing the offense provides otherwise or the period of limitations is extended by section 3 — 6 (Ill. Rev. Stat. 1971, ch. 38, par. 3 — 6). Thé statute which describes the offense of reckless conduct (Ill. Rev. Stat. 1971, ch. 38, par. 12 — 5) contains no period of limitations. Section 3 — -6 provides in relevant part as follows:

“The period within which a prosecution must be commenced under the provisions of Section 3 — 5 or other applicable státute is extended under the following conditions: # * #
(b) A prosecution for any offense based upon misconduct in office by a public officer or employee may be commenced within one year after discovery of the offense by a person having a legal duty to report such offense, or in the absence of such discovery, within one year after the proper prosecuting officer becomes aware of the offense. However, in' no such case is the period of limitation so extended more than 3 years beyond the expiration of the period otherwise applicable.”

The format utilized by the Staté in each indictment was identical. For purposes of illustration, Indictment #73-CF-157 charged that:

«« e * on or about December 4, 1969 and December 10, 1969, Ricardo Munoz committed the "offense of Reckless Conduct, in violation of Chapter 38, Section 12 — 5,- of the Illinois Revised ■ Statutes, as amended, in that he recklessly prescribed and caused to be administered to Hazel Ellis, certain- drugs namely, -Albumin, Solucortef and Gammablobulim, thereby endangering the bodily safety of thé said Hazel Ellis.”

It is undisputéd that at the time of the acts in question the defendant was a public employee employed by the Elgin State Hospital, Department of Mental Health, State" of Illinois.

On January 25, 1973, the defendant filed motions to dismiss the indictment in each case based upon the bar of the statute of limitations (Ill. Rev. Stat. 1971, ch. 38, par. 3 — 5). None of the subject indictments was amended by the State, nor were any additional pleadings filed with respect to the issue of limitations raised in defendant’s Motions to Dismiss. Following arguments by counsel, the trial court dismissed all 13 indictments involved in this appeal.

On appeal, the State contends that the trial court erred when it failed to extend the statute of limitations and to rule that the 13 charges against defendant for reckless conduct were offenses based upon misconduct in office by a public employee within the meaning of section 3 — 6(b). In our view, we need not consider the State’s contentions because the instant indictments showed that the offenses charged were allegedly committed on dates not within the general limitations period and there was no averment of facts avoiding the bar of the statute of limitations.

It is a fundamental rule of criminal pleading that an indictment which on its face shows that the offense charged is barred by the statute of limitations is wholly insufficient at law. (People v. Rhodes (1923), 308 Ill. 146, 139 N.E. 53; People v. Hallberg (1913), 259 Ill. 502, 102 N.E. 1005.) The indictment, therefore, must reflect that the offense was committed on a date within the period of limitations. People v. Ross (1927), 325 Ill. 417, 156 N.E. 303.

When a statute extends the statute of limitations in certain cases, and the offense is alleged to have been committed on a date not within the general limitation period, the indictment must aver facts avoiding the bar of the limitation statute. (People v. Carman (1943), 385 Ill. 23, 52 N.E.2d 197.) This principle appears to have been first stated in Illinois in Garrison v. People (1877), 87 Ill. 96. There, as in the instant case, the indictment on its face clearly showed that it was not returned within the limitation period prescribed by law. The State’s failure to allege that the accused had been a person fleeing from justice during the period in question — a fact which would have tolled the then applicable statute of limitations — rendered the indictment insufficient at law. The rationale underlying this rule is apparent from the holding of People v. Stajduhar (1929), 335 Ill. 412, 167 N.E. 29. Simply stated, when the State seeks to avoid the bar of limitations, the exception or proviso relied upon becomes a material allegation which the prbs'ecution is bound to allege and prove.

The State’s failure to properly plead the exception relied upon could well prejudice the defendant in this case. Examination of section 3 — 6(b), supra, reveals that in order to invoke the statute, the People must allege that the prosecution was commenced within one year after die discovery of the offense by a person having a legal duty to report it, or in die absence of such, discovery, within 1 year after the proper prosecuting officer becomes aware of it. The condition upon which invocation of the statute is based — prosecution witiiin one year after such person discovered the offense — must be alleged in die indictment. (People v. McGreal (1972), 4 Ill.App.3d 312, 278 N.E.2d 504.) Absent any averment as to the requisite element of discovery, it is impossible for die defendant to ascertain whether the statute has been validly invoiced. To withstand constitutional attack, an indictment must apprise the defendant of the crime charged with sufficient certainty and definiteness so that he may * * intelligentiy prepare his defense and plead die judgment in bar of a subsequent prosecution for the same offense.” (People v. Johnson (1966), 34 Ill.2d 202, 204, 215 N.E.2d 204, 205.) Since the instant indictments failed ■ to indicate the facts upon which the State sought to invoke the extension of the general statute of limitations, the prejudice to the defendant in the intelligent preparation of his defense is apparent. Accordingly, we hold that where an indictment clearly shows that, the acts allegedly committed occurred on a date not within the' general limitations period and there is no averment of facts avoiding the bar of die statute of limitations, the indictment is defective and properly subject to a motion to dismiss.

The judgment below dismissing the subject indictments is, for the foregoing reasons, affirmed.

Affirmed.

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


author: Mr. JUSTICE LEWIS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Virgil Baylor, Defendant-Appellant.
    (No. 73-231;
    Second District
    November 8, 1974.

      George Pease, Public Defender, of Waukegan (Michael J. Boyd, Assistant Public Defender, of counsel), for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz, of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE LEWIS

delivered the opinion of the court:

The defendant on September 26, 1972, after being convicted by a jury of the offense of forgery, was sentenced to 5 years probation with his residence to be the Half-Way House. One of the conditions of the. defendant’s probation was that he would abide by the rules' and regulations of the Half-Way House.

On October 7, 1972, the defendant drank alcholic liquor in his room at the Half-Way House in contradiction of the rules and regulations. A petition to revoke the defendant’s probation was filed on October 11, 1972. The defendant on October 16, 1972, after being turned down, after á job interview^ went to a tavern and drank alcoholic liquor for about 2Vz hours, which he later advised a counselor of his drinking. That same day the defendant flew to Louisville, Kentucky, to live with his sister and brother-in-law. On October 23, 1972, a supplemental petition for revocation of defendant’s probation was filed. The defendant subsequently was arrested, waived extradition and was returned, to Illinois. •

On March 16, 1973, the defendant’s probation was revoked and he was sentenced to a term of 3% years’ to 10 years’ imprisonment.

The defendant makes the novel argument that the trial court abused its discretion in revoking the defendant’s probation even though it is conceded that the defendant violated some of the terms of probation on several occasions. The defendant reasons that once the trial court recognized that the defendant had a problem with alcohol and prescribed a program for treatment, then the trial court must allow time to receive benefits from the program. In this case the defendant’s first violation occurred prior to receiving any counseling for alcoholism and his second violation occurred shortly after the program commenced.

The Unified Code of Corrections grants broad discretionary powers to the trial court in dealing with offenders. The Code provides in section 5 — 6—4(e) that, “If the court finds that the offender has violated a condition * 9 9 it may continue him on the existing sentence, with or without modifying or enlarging the conditions, or may impose any other sentence that was available under Section 5 — 5—3 at the time of initial sentencing.” (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 6—4(e).) The courts have also granted the trial court a great amount of discretion in dealing with violators of probation. People v. Crowell, 1 Ill.App.3d 868, 870, 276 N.E.2d 508 (1971).

The defendant does not have a constitutional right to probation. (People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300 (1973); People v. Molz, 415 Ill. 183, 188, 113 N.E.2d 314 (1953).) Nor does this court find that the defendant has any statutory right or vested interest in probation merely because the trial court established a program to treat the defendant’s alcoholism.

The trial court repeatedly warned the defendant of the conduct required of him on probation. The defendant admits that he violated the terms of his probation. Thus, clearly the trial court did not abuse its discretion in revoking the defendant’s probation and sentencing him to the penitentiary. People ex rel. Ward v. Moran, 54 Ill.2d 552, 301 N.E.2d 300 (1973).

The Defendant next contends that the sentence of from 3Vs years’ to 10 years’ imprisonment for the offense of forgery was excessive. He contends that forgery is a nonviolent crime and that the defendant is an alcoholic, who could best be rehabilitated by the parole authorities. The defendant admits that the sentence is within the statutory limits under the Unified Code of Corrections. Ill. Rev. Stat. 1973, ch. 38, pars. 17 — 3, 1005 — 8—1.

A reviewing court will not alter sentence imposed by a trial court in the absence of a manifest abuse of discretion. (People v. Bonner, 37 Ill.2d 553; 229 N.E.2d 527; People v. Bennett, 9 Ill.App.3d 1021, 293 N.E.2d 687.) The defendant, according to the record, had been convicted of robbery in 1968, escape in 1970, and now forgery. He had spent time as a child in state institutions primarily due to his illegal and antisocial conduct. He, of course, could not abide by the rules of the Half-Way House for even 1 month. The trial court did not abuse its discretion in imposing a minimum sentence of 3Ys years. People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673, 677; People v. Burbank, 53 Ill.2d 261, 291 N.E.2d 161, 169.

Judgment affirmed.

DIXON and A. SCOTT, JJ., concur.


author: Mr. JUSTICE ALLOY

text:
    Mildred Voss, Plaintiff-Appellant, v. Delbert Voss, Defendant-Appellee.
    (No. 74-128;
    Third District
    November 12, 1974.

      William M. Walker, of Coryn and Walker, of Rock Island, for appellant.
    Robert W. Brinn, of Brinn and Bailey, of Rock Island, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

This is an appeal from an order of the Circuit Court of Rock Island County entered in a proceeding initiated by petition for rule to show cause why defendant Delbert Voss should not be held in contempt for failure to make payments of child support as provided by a decree entered in a divorce proceeding between the parties.

The parties to this cause, Mildred Voss and Delbert Voss, were divorced on May 11, 1964. The decree provided at that time that Mildred Voss was to have custody of the children and that Delbert Voss was to pay to Mildred, for the support of the minor children, the sum of $75 per week. The decree also provided that the child-support payments should not be automatically reduced when any of the children attained legal age but rather that the reduction should occur only after a consideration and determination of the needs of the children and the income of defendant Delbert. The support decree was later modified to reduce the amount of payments to $50 weekly. Thereafter, on June 28, 1972, Mildred Voss, who had since remarried, moved to Detroit, Michigan, with her new husband, who was transferred in an occupational relocation. One child, a 17-year-old son, went to Michigan with Mildred Voss, and the other, a 19-year-old son, remained in Illinois where he lived alone and was largely self-supporting. No permission of the court, as provided by section 13 of “An Act ® * * in relation to divorce” (Ill. Rev. Stat. 1971, ch. 40, par. 14), was obtained when tire younger child was taken from Illinois to another jurisdiction.

' Defendant Delbert Voss made his last child-support payment on July 18, 1972. On September 7, 1973, plaintiff Mildred Voss filed a petition for rule to show cause why the defendant should not be held in contempt for a failure to make the 60 past-due payments as required by the modified decree. On September 13, 1973, defendant filed a cross-petition for a rule to show cause why plaintiff should not be held in contempt for failure to obtain court permission, as required by statute, before taking the minor child out of the jurisdiction. On the same date, defendant also filed a petition to modify the divorce decree whereby he sought to have the child remaining in Illinois declared emancipated and, also, to have the court reconsider the amount of support to which plaintiff was entitled. Also, on the same date, plaintiff Mildred Voss sought judicial permission to remove the minor from the jurisdiction in Illinois and maintain him in Michigan.

The plaintiff and defendant were the only witnesses at the trial. The judge, sitting without a jury, found the plaintiff in contempt of court; found the older child emancipated; reduced future child-support payments from $50 to $25 weekly, and further stated that the defendant was under no legal obligation to pay any of the $3,000 past-due support payments which accrued unpaid through the date when defendant filed for reconsideration of the support amount. The final decree, however, provided for a payment of $1,500. Plaintiff appeals from all orders entered by the court.

As noted, the case involves two distinct sets of support payments. One set includes those payments which became due prior to the filing on September 13, 1973, of the petition to reconsider the amount of payments. The other set involves those payments which came due and will continue in the future to become due from September 13, 1973, until terminated by law.

The decree providing for support of minor children is a continuing one. (Wilson v. Wilson, 122 Ill.App.2d 142 (1973).) A party who is to provide support payments is to continue to do so until the child reaches the age of majority (Rife v. Rife, 272 Ill.App. 404), or until a court of competent jurisdiction orders the payment or amount thereof terminated or reduced. A party directed to pay, cannot modify support payments unilaterally and it is not for him to determine when or for what reasons he shah stop payments. (Trimble v. Trimble, 16 Ill.App .2d 408, 413.) Additionally, past-due payments for child support are a vested right and the court has no authority to modify such payments either as to amount or the time of payment. (See Wilson v. Wilson, 122 Ill.App.2d 142; Hurt v. Hurt, 351 Ill.App. 427, 115 N.E.2d 638.) As the courts have indicated, where a parent, who is required to pay for child support, feels he is required to pay more than he should pay due to emancipation of one of the children so supported, he may reduce the amount only upon an order of court.

It is thus apparent that any payments which accrued prior to the filing of the petition to reconsider the amount of support payments are vested in the parent who has custody of the child or children, and, normally, cannot be divested retroactively by order of court. Payments, however, which accrue after the date of the filing of the petition to reconsider are not vested. On the basis of the precedents referred to, the plaintiff is entitled, therefore, to a weekly payment of $50 until September 13, 1973, the date upon which the petition to reconsider was filed. That amount was an admitted sum of $3,000. The trial court, apparently acting on a suggestion of a sum to be agreed upon by the parties, stated that the amount of $1,500 for the child remaining in Illinois was no* longer necessary in view of his emancipation. The trial court also observed that it would not require the defendant to pay anything for the child in Michigan, since that child was taken from the jurisdiction without prior court approval. While it is not clear from the record or the ' briefs why the final order provides for the payment of $1,500, or even to which child it applies, we must observe that the reduction of the $3,000 arrearage, in any amount, was not proper since that amount was vested. Insofar as the question of payment for the child taken from the jurisdiction- without permission of the court is concerned, residence in another state is not to be considered as to past-due support payments. (See Hurt v. Hurt, 351 Ill.App. 427, 115 N.E.2d 638 (1953).) In the Hurt case, as is true in the cause before us, the child was taken from the State without court approval and with the apparent knowledge of the father. The court held that such action did not affect the obligation of the father to provide support. The court in that case reasoned that the duty of support comes from the blood relationship between father and child, and, as such, should remain unaffected by the improper actions of either parent.

As to support payments accruing after September 13, 1973, a different situation exists. As we have stated, such payments are not vested. Under section 18 of “An Act 0 * * in relation to divorce” (Ill. Rev. Stat. 1973, ch. 40, par. 19), the party directed to pay in the decree should petition the court to reduce the amount of payments. Normally, such payments cease when the child attains his or her majority. In order to prevent automatic termination of payments, the divorce decree in the instant case was phrased in a manner which indicated that the support was for the children as a whole and not necessarily to be shared pro rata. The decree provided specifically that the payments were not to terminate automatically when a child comes of age, but were to be reduced after the court weighed the needs of the children as against the income of the defendant. Plaintiff seeks to construe this provision to apply to reductions due to emancipation, rather than age alone. Even if this were so, the failure of defendant to provide detailed evidence as to the needs of the child as justifying the decrease does not require a reversal on this issue. It should "be noted that' the plaintiff 'does not challenge the-finding of emancipation and apparently agrees that emancipation obviates the duty of the parent to provide further support. Plaintiff claims, rather, that the order is in error for its failure to meet the requirements for support payment reductions as provided in the divorce decree. To the extent that the contention involved the failure to provide detailed evidence as to the needs of the children, it is clear that the error is harmless since the trial judge could hardly be unaware of the rising costs of providing support for a family. In considering the income of defendant, the fact that one child was no longer in need of support, and in view of the subsequent remarriage of plaintiff, we cannot now say that the reduction of the future support payments was in error or against the manifest weight of the evidence. Smith v. Smith, 36 Ill.App.2d 55.

Plaintiff also challenges the propriety of the contempt citation against her. While this issue may be moot in view of the fact that no sanction was imposed, we agree that tire finding of contempt was improper in this case. Before a person could be held in contempt for conduct such as involved in the cause before us, the action of that party must have clearly arisen from an attempt to show willful defiance of a rule of law. (Hughson v. People, 91 Ill.App. 396.) Plaintiff testified at the hearing that she was unaware of the statutory requirement or the procedure for obtaining consent when taking the minor from the State. Nothing was specifically provided in the decree as to this contingency. We conclude, therefore, that to find plaintiff in contempt for an unintentional violation of the statute would seem to be contrary to the purpose of this procedure which was designed to punish for a willful defiance of a rule of law or provisions of a decree known to the party charged. While normally the matter of contempt is left to the discretion of the trial court, we do not believe the citation in the present case was justified under the record before us. The trial court also made no express finding on plaintiff’s petition for a rule to show cause why defendant should not be held in contempt for withholding support payments. The court may have rejected this request. If so, we would affirm such rejection. The record, however, shows no action on it, nor does it show any action on the request for payment of costs and attorney’s fees as requested by appellant.

For the reasons stated, we have concluded that the portion of the order reducing the support payments for the period following September 13, 1973, as ordered by the trial court, should be affirmed. . We have also concluded that the order of the trial court finding , plaintiff in contempt should be reversed and that also any portion of the order entered in this cause reducing the obligation as to support payments which accrued prior ■ to September 13, 1973, should likewise be reversed. The. order of the Circuit Court of Rock Island County is, therefore, affirmed as to the portion of the order reducing support payments accruing after September 13, 1973, but that portion of the order finding plaintiff in contempt is reversed as well as the portion of the order entered in this cause reducing the obligation as to support payments which accrued prior to September 13, 1973. This cause is, therefore, remanded to the trial court with directions to enter orders consistent with the views expressed in this opinion.

Affirmed in part and reversed in part and remanded.

STOUDER and DIXON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jack Austin Reynolds, Defendant-Appellant.
    (No. 74-21;
    Third District
    November 12, 1974.

      Robert Agostinelli and James Geis, both of State Appellate Defenders 'Office, of Ottawa, for appellant.
    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant, Jack Austin Reynolds, appeals to this court from a sentence of murder of his wife by reason of which he was sentenced to a term of not less than 30 years nor more than 50 years. The only issue raised on appeal is that the sentence was excessive.

From the record it appears that the deceased wife had an apparent well-deserved reputation for infidelity of which defendant was aware. There was indication of a pregnancy by someone other than defendant, a subsequent abortion, and a demand upon defendant to finance the operation. During the evening on which the murder occurred, deceased and the defendant were in a group at a local tavern. The deceased and the defendant were engaged in an argument at the tavern, when defendant struck the deceased about the head and neck region of her body. Upon their return to their home, deceased retired to her bedroom. Defendant remained in the kitchen where he began to pace the floor and thought of an apparent threat of the deceased to take their children from him. Defendant was a chronic alcoholic who, nevertheless, had been able to maintain steady employment. He kicked open the door to the bedroom and commenced arguing with his wife over the custody of the children. Defendant then left the room and re-entered, carrying a hammer which he obtained from the kitchen. After defendant demanded to know whether his wife would permit him to have the children, she said she intended to have sole custody of the children, and defendant then repeatedly and violently struck the deceased about the head with the hammer. Thereafter, without determining whether his wife was alive, and without summoning medical aid, defendant left the house for another local tavern. Defendant had returned to the house after going to the tavern for a drink and found his wife still bloody, but “trying to talk,” and left her there to die from her wound. He went from tavern to tavern in Kankakee and then to a tavern in Joliet where he was arrested.

The State had recommended a sentence with a minimum of 14 years and with a maximum of 21 years. The trial judge indicated clearly that he would not be bound by any recommendation in the case and this was understood by all the parties before defendant pleaded guilty to the charge of murder.

During the hearing in aggravation and mitigation, two psychiatric reports were made which concluded that defendant was' in á state of chronic depression. It was indicated that the defendant’s brutal behavior was the product of a sudden, intense passion generated by his wifes provocation. While the trial judge agreed to a degree, he stated that the crime was not a planned murder but was done on the spur of the moment and was motivated by passion and anger. The trial court indicated that if the murder had been purposely planned, the sentence would have been death. The court stated that a lesser sentence was imposed because of the element of passion in the crime.

Under the provisions of section 5 — 8—1(c) (1) of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(1)), the minimum term for murder is 14 years. The section permits a more severe minimum upon consideration of the offense and the history and character of defendant. The nature and length of the sentence is reserved to the sound discretion of the trial judge ordinarily. (People v. Hart, 132 Ill.App.2d 558.) It is observed by the State that all statutory procedures have been complied with and that there was no abuse of discretion. Defendant contends that the sentence was excessive.

The mandate of both the Illinois Constitution and the Criminal Code is that a judicially imposed criminal sanction be proportionate to the offense and be designed to return the offender to useful citizenship (Ill. Constitution (1970), art. I, sec. 11; Ill. Rev. Stat. 1973, ch. 38, par. 1 — 2(c)). The sentence should be fair and could also consider the need of society to be protected from persons convicted of and capable of committing criminal offenses. Necessarily, it is required that the sentence also be fair to the defendant for whom rehabilitation and return to useful citizenship is sought. Thus, the sentence cannot be arbitrary, unreasonable, or oppressive. Principally, the nature of the acts which constitute the crime, the history of defendant so far as behavior is concerned, the criminal predisposition of defendant, as well as the circumstances surrounding the crime, are all factors to be considered in the imposition of a sentence.

In the cause before us, it is apparent that the crime was an extremely brutal one. While, apparently, it was not a crime which was planned, and it is clear that defendant acted with extreme violence upon an unjustified impulse and was also under the influence of alcohol, the trial court gave consideration to all of these factors and stated specifically that if the trial court had not taken such matters into consideration, the sentence would have been death in the electric chair. The sentence imposed was within the range of the minimum and maximum fixed by statute specifically for the offense of murder. The trial court was not restricted as to the ratio of minimum and maximum but only was required to apply reasonable discretion in imposing such sentence. On the basis of the record before us, we do not believe we would be justified in modifying the sentence in this cause. The court obviously regarded the nature and circumstances of the offense and the history and- character of defendant in setting the higher minimum term in excess of 14 years. As indicated in the case of People v. Stovall, 19 Ill.App.3d 639, 640-641, while a court of review should act to modify and reduce a sentence to give greater opportunity to the parole authorities in developing potential rehabilitation of a defendant, power to reduce punishment by modification of the judgment of the trial court should not ordinarily be employed unless it clearly appears that the sentence constitutes a great departure from the fundamental law and spirit. We do not believe that the sentence constitutes such great departure from the fundamental law and its spirit in the instant case and accordingly do not believe we would be justified in modifying such sentence.

• The judgment of the circuit court of Kankakee County and the sentence imposed upon defendant in this cause are, therefore, affirmed.

Affirmed.

STOUDER and DIXON, JJ., concur.


author: Mr. JUSTICE STOUDER

text:
    Mary Bader Firestone, Ex'r of the Estate of Clinton D. Firestone, Jr., Deceased, et al., Plaintiffs-Appellees, v. R. H. Lincoln, Inc., et al., Defendants-Appellants.
    (No. 73-314;
    Third District
    November 12, 1974.

      William Brandt, of Bloomington, for appellant Union Oil Co.
    Michael J. Costello, of Springfield, for appellant R. H. Lincoln, Inc.
    James B. Lewis, of Peoria, for appellant Northern Illinois Gas Co.
    John Naylor, of Bloomington, for appellees Voss and Wichmann.
    John Morel, of Bloomington, for appellee Norman Bisel.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This was an action by plaintiffs-appellees Mary Bader Firestone, executor of the estate of Clinton D. Firestone, Jr., Wilbert Voss, Donald Wich-mann and Norman Bisel against R. H. Lincoln, Inc., Union Oil Company of California and Northern Illinois Gas Company to recover damages resulting from the negligence of defendants in maintaining and operating a boiler and natural gas fuel line. Plaintiffs were injured on May 18,1970. AH were employees of Bloomington Auto/Truck Plaza, Inc. which operated a garage, service station and tire sales business from the building. The premises and building were also occupied in part by R. H. Lincoln, Inc., which dealt in heating and air conditioning. R. H. Lincoln was 50% owner of the Bloomington Auto/Truck Plaza. The building was originaHy built by Five Star Truck Stop in about 1956. It was later sold to Pure Off Company which merged with the defendant, Union Oil Company of California. Union leased the building and premises to R. H. Lincoln by lease dated September 24, 1968, and on December 17, 1969, while R. H. Lincoln was still a tenant under the lease, Union sold the premises to R. H. Lincoln by a contract for deed. The building was first served by an LP gas boiler and was later converted to natural gas which was sold and distributed to the premises by the defendant Northern Illinois Gas Company. On the morning of May 18, 1970, plaintiff Voss, as gas station manager for Bloomington Auto/Truck Plaza, called William Maitland, employee of R. H. Lincoln, to the premises to work on the hot water system of the building, which was not functioning. Maitland had shut down the boiler 10 to 14 days before by turning off the switch for the electrical system of the boiler. The turning off of the electricity allowed a solenoid controlled valve to close, thus shutting off gas supply to the burners. This did not shut off the gas supply to the pilot lights which remained lighted. About 3 P.M. on May 18, 1970, Clinton D. Firestone and plaintiffs Voss and Bisel searched for an odor described as “heat” or “wet btuning rags.” They eventually arrived at the boiler room. Firestone asked plaintiff Wichmann to come from the garage and help. AH four went into the boffer room and were there about five minutes before an explosion occurred which seriously injured them. The jury returned verdicts in favor of the plaintiffs Voss, Wichmann and Bisel against Union Oil and Northern Illinois Gas Company in the amounts of $130,000, $75,000 and $50,000 respectively. The jury also found in favor of defendant R. H. Lincoln against plaintiffs. Judgment was entered on the verdicts and all post-trial motions were denied. The executor of the estate of Clinton D. Firestone, Jr., having reached a settlement, is not a party to this appeal. Defendants Union Oil and Northern Illinois Gas appeal the judgments against them and plaintiffs cross-appeal the judgments in favor of R. H. Lincoln in the event one or both of the judgments against Union Oil and/or Northern Illinois Gas are reversed on this appeal.

We shaH first discuss the contentions of defendant-appellant Northern Illinois Gas Company. These contentions relate to the Gas Company’s position that the evidence is insufficient to show that it violated any duty or that its conduct proximately caused the explosion and consequent injuries.

The defendant contends that in accord with the rule in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504, the evidence when considered in its aspect most favorable to the plaintiffs so overwhelmingly favors the Gas Company that a contrary verdict based on this evidence should not be allowed to stand. Four experts testified, one for the plaintiffs, two for Union Oil and one for R. H. Lincoln. The testimony of the experts was extensive and was based in part upon the examination and inspection of physical evidence as it existed after the explosion as well as a description of such facts presented by other witnesses. The hypothetical questions also included the circumstances and conduct existing prior and subsequent to the explosion. The experts were extensively cross-examined by counsel for each of the parties, since in view of the multiple defendants the issue of causation necessarily involved conflicting interests, not only between the plaintiffs and the defendants, but between or among the defendants themselves.

So far as the theory of the plaintiffs against the Northern Illinois Gas Company is concerned, it finds its basis in evidence that some 5 months before the explosion a complaint was made to the Gas Company regarding the odor of gas. An employee of the Gas Company inspected the boiler system but could find no leak. Even though he inspected the boiler system including the fuel supply line the inspector gave no warning that the gas supply line contained an improper galvanized pipe fitting. There was evidence that the threads of the pipe which fitted into the galvanized fitting were rusted and deteriorated and that there was debris in the line as a result of such deterioration. According to the testimony such conditions could have been the consequence of using the improper galvanized fitting. It also appeared that in accord with the usual practice and custom of the Gas Company that such a fitting should have been discovered by the inspector and, if so discovered, the owner of the premises should have been warned that the fitting was unsuitable so that repairs could have been made. Sometime later, after the inspection, R. H. Lincoln also complained to the Gas Company about its high gas bill, from which it could have been inferred there was a gas leak on the premises.

It was plaintiffs’ theory, based on the evidence of the experts, that combustible gases exploded or gas leaking from the defective fitting ignited at the pilot light, thereby causing a sufficient force to rupture the boiler either directly or by supplying fuel from the site of the leak to the fire box which over-pressurized the boiler.

In opposing plaintiffs’ theory of liability as being unsupported by sufficient evidence, the defendant claims such theory is based solely on circumstantial evidence which is equally susceptible of contrary inferences.

In effect defendant is saying that the only evidence here is circumstantial evidence and expert testimony which is susceptible of inconsistent inferences. It contends that the law is that to establish a theory by circumstantial evidence, it is necessary that the facts are of such a nature so that it is the only conclusion that could be reasonably drawn. Plaintiffs, on the other hand, contend that it is the function of the jury to draw the final conclusions as to the facts, and the fact that contrary inferences would be supported by evidence is not sufficient to show unreasonableness of the verdict, and such proof may be by either direct or circumstantial evidence. It is the jury’s function to weigh the contradictory evidence, judge the credibility of the witnesses and draw the ultimate conclusion as to the facts. (Oliver v. Peoples Gas Light & Coke Co., 5 Ill.App.3d 1093, 284 N.E.2d 432; Finley v. New York Central R.R. Co., 19 Ill.2d 428, 167 N.E.2d 212.) In accordance with the foregoing rule, it cannot be held here that the existence of two possible contradictory theories as to the cause of the explosion (natural gas and/or boiler), both of which find support in the evidence, must necessarily lead to the conclusion that the verdict was erroneous. Not only do we believe there is sufficient evidence from which it may be inferred the explosion was the result of a gas leak, we also believe that the failure of the Gas Company to discover and warm of the consequences of the defective fitting constituted sufficient evidence of the Company’s failure to exercise due care. We therefore believe these issues, based as they are upon conflicting evidence, were properly resolved by the jury in favor of the plaintiffs.

Next we consider the objections of appellant Union Oil Company tó the judgments entered against it. Since, prior to the explosion, Union Oil had initially leased the premises and then sold them, different questions arise concerning the theory of recovery than those discussed in connection with tire case against the Gas Company.

The general rule regarding the liability of a vendor of real estate for injuries sustained on the real estate is the vendor is not liable for such injuries which are sustained subsequent to his transfer of possession and control. (Anderson v. Cosmopolitan National Bank of Chicago, 54 Ill.2d 504, 301 N.E.2d 296; Conway v. Epstein, 49 Ill.App.2d 290, 200 N.E.2d 16.) The exception to the rule which also is stated in the Anderson case is “*. * * when the vendor actively conceals or fails to reveal a dangerous condition to the vendee. In this situation the liability of the vendor continues until the vendee discovers the defective condition and has an opportunity to remedy it.” (54 Ill.2d 504, 507.) Both the plaintiffs and defendant Union Oil concede the existence of the general rule and its exception, although there is disagreement about how such rule and exception should be applied to the facts of this case.

In general the assignments of error urged by Union Oil which we believe it necessary to consider on this appeal relate to its claims that the amended complaint did not state a cause of action and that the issues instruction embodying the theory of the amended complaint was improper because contrary to legal rales as applied to the evidence. More particularly, Union Oil argues that it had sold the premises, had delivered possession thereof and had no liability under the exception to the general rule heretofore discussed. Both the allegations of the complaint and of the issues instruction with one exception are, according to defendant, based on alleged violations of duties incident to possession of the premises. Furthermore, according to defendant, the charge not based on a duty arising as a consequence of possession is insufficient to establish defendant’s liability as a vendor not in possession of the premises.

To understand the arguments of the parties it will only be necessary to set forth the issues instruction since it embodies the negligence charged in the amended complaint. Plaintiff’s instruction No. 4 as given to the jury is based on IPI 2d--Civil No. 20.01 and states, “That the Plaintiffs each claim that the Plaintiffs * * * were injured * * * and that the Defendant, Union Oil Company, was negligent in one or more of the following respects: (a) Negligently permitted operation of a boiler without a valid State inspection certificate; (b) Negligently maintained the boiler while it was under their control; (c) Negligently sold the boiler while it was in a defective condition; (d) Negligently concealed a latent defect in property and failed to notify the purchaser of said defect; (e) Negligently installed and maintained defective gas fuel lines * *

The principal case discussed by the parties with regard to the liability of both Union and Lincoln, Union’s lessee and later its contract purchaser, is Anderson v. Cosmopolitan National Bank, 54 Ill.2d 504, 301 N.E.2d 296. In that case plaintiff, 3 years old at the time of the incident, was injured while playing in a second floor hallway of his building when he fell through a railing from which some slats were missing. The appeal in that case was from the granting of summary judgment in favor of the vendors. About 3 weeks prior to plaintiff’s injuries the vendors had entered into an installment contract for the sale of the property to two other parties. The vendors would not be divested of title until all the installment payments were made, and vendors retained the right to make repairs on the property if the purchaser did not do so. The buyers took possession about 3 weeks prior to plaintiff’s injury. Plaintiff’s mother’s affidavit stated that she had rented the second floor apartment about 2 months prior to the incident and stair railings were missing at that time, and she had told the lady she rented from (the installment buyer) about the railings but they were never fixed. Plaintiff’s theory was that the defect existed prior to the date of the installment contract sale and that the vendors knew or should have known of it and were therefore negligent in failing to keep the property in repair. The supreme court cited the general rule as stated earlier in this opinion, namely, that a vendor of real estate is not liable for injuries sustained after transfer of possession of the premises. It further discussed the exception relating to the vendor’s liability continuing until the vendee discovers the defective condition and has an opportunity to remedy it. The court stated that the exception was created in a New York case concerning the absence of an automatic sprinkler system which would take 90 days to install and where the vendee had been in possession less than 90 days. The court declared that the New York position does not appear to have found acceptance elsewhere and should not be applied generally to exonerate a vendee from liability for a defective condition of which he is aware. The court also held that even if the exception were applicable to the case at hand, the amount of time between the buyers’ taking possession and plaintiff’s injury was adequate for the repairs there involved. The court went on to reject plaintiff’s contention that those who sell real estate on installment contracts should be subjected to a different and more stringent liability than is imposed upon other vendors.

In analyzing the Anderson case we believe it is important to observe that the exception to the general rule is described in terms similar to those sometimes used in defining a latent defective condition, i..e, a dangerous condition which is either concealed by the seller or one which the seller either knew of or should have known of and did not disclose. If to such description were added the phrase that it was one that could not be discovered by a reasonable inspection of the premises, we would have generally the distinction between a dangerous condition described as “latent” or “patent.” The dissent in Anderson recognizes that the distinctions do raise a difficulty but in reliance on a rule apparently announced in a New York case decides that the fact that a defective condition was known to the buyer was relevant only on the question whether he exercised reasonable efforts to remedy the situation. The New York case would seem to be somewhat lacking in persuasion, since it does not discuss those aspects of liability of a vendor, and indeed where a fireman is killed as a consequence of violations of fire regulations, different considerations may be involved.

So far as the instant case is concerned the Anderson case is significant because, one, it reiterates the general rule that once possession has been transferred the vendor is not liable for injuries thereafter sustained as a consequence of conditions of the premises and two, the liability of a vendor not in possession within the exception depends not on the conduct or circumstances existing while he was in possession but rather on his concealment or failure to disclose dangerous conditions which resulted in injuries before the buyer could have been reasonably expected to discover the condition and repair it.

As indicated earlier, Union Oil argues that the complaint does not state a cause of action, but in the view we have taken of this case we believe it is unnecessary to decide this issue. Rather we believe that all but one of the issues of negligence described both in the complaint and instruction depend on the theory that Union Oil was in possession of the premises at the time of the explosion, and, consequently, if there is insufficient evidence supporting the claim that Union Oil was in possession of the premises the jury’s verdict cannot be sustained by these allegations of negligence.

In considering the allegations of negligence contained in the issues instruction it appears that sub-paragraphs A, B, C, and E all relate to and depend upon Union Oil being in possession of the premises at the time of the explosion. Since admittedly the sale of the premises took place many months before the explosion it is our conclusion that the evidence is insufficient to support the contrary conclusion that Union was in possession of the premises. The only evidence called to our attention by the plaintiffs in any way suggesting that Union Oil had not parted with possession and control of the premises is that Union sold to Lincoln the boiler involved here 1 month after the explosion, pleaded guilty to the Boiler Act violations and exerted dominion over various items on the premises immediately after the explosion. In June, 1970, Union delivered a bill of sale to Lincoln in which they warranted that they owned the items recited on the bill of sale which included the boiler. We believe that all of the foregoing evidence is consistent with Union Oil’s position as record owner of the premises retained as security for the unpaid balance. Such evidence does not support any inferences that Union Oil was in actual or constructive possession of any part of the premises at the time of the explosion or that it exercised any dominion or control over the premises or had the right to do so.

Accordingly, it is our conclusion that there is insufficient evidence to sustain any of the allegations in the issues instruction depending upon possession or control of the premises, and, consequently, these issues do not support the jury’s verdict.

This brings us to a consideration of the issue embodied in sub-paragraph (d) of the issues instruction quoted above as it related to the complaint, theory of the plaintiffs and the evidence. This issue and theory of recovery is based on the exception described in the Anderson case and according to plaintiffs embodies the theory of a vendor’s continuing liability after transfer of possession of the premises.

As an initial observation sub-paragraph (d) of the issues instruction is somewhat vague, referring generally to a latent defect without either suggesting what a latent defect is or, as applied to the facts of this case, what latent defect is alleged to have existed based on the evidence. Defendant Union Oil suggests that if a vendor is to be charged with liability of consequences occurring after his transfer of possession that issue and proof must include: (a) that the vendee did not know or have reason to know of the conditions alleged or the risk involved; (b) that vendor knew or had reason to know of the condition and realized the risk involved and has reason to believe the vendee would not discover the condition or realize the risk; and (c) that vendee did not have a reasonable opportunity to discover the condition.

Defendant contends that the above allegations and evidence are required to support plaintiffs’ theory of recovery where a sale has taken place and cites Sparling v. Peabody Coal Co., 16 Ill.App.3d 301, 306 N.E.2d 79 (1973), and Restatement (Second) of Torts, § 353(l)b, comments at 236-238 (Undisclosed Dangerous Conditions Known to Vendor) (1965).

Sparling was an action by vendee’s daughter against the company which assumed the assets and liabilities the vendor for injuries sustained when she fell into a burning pile of slack or coal dust. The court held that the complaint failed to allege a cause of action against defendant-vendor. It stated that the question of the sufficiency of the complaint to state a cause of action will only be considered on appeal when the complaint wholly fails to state a cause of action and not when the complaint merely states a cause of action' imperfectly. In Sparling it was held that the liability of a vendor in such cases as that is not derived from negligent conduct. “The duty derives from a condition upon the land * * * known to the vendor, and is predicated upon the existence of other conditions and for the time limitations as described in the Restatement rule. If there is a breach of the legal obligation, liability may attach irrespective of whether the vendor was negligent with regard to the creation of the condition or his conduct with regard to the vendee or others on the land.” In Sparling the court stated that although the complaint alleges the existence of a condition which involves unreasonable risk to persons on the land (the burning pile of slack) it failed to allege, even in substance, that the vendee did not know or have reason to know of the. condition or the risk involved. Nor did it allege that the vendor knew or had reason to know of the burning pile of slack and realized the risk involved and had reason to believe that since the 1947 deed the vendee did not have a reasonable opportunity to discover the burning pile of slack and take precautions. Accordingly, the liability of defendant for injuries from the burning pile of slack continued. “The absence from the complaint of these elements of the defendant’s liability leave a proper cause of action unstated; without them the cause of action is incomplete and the liability of the defendant will not attach.”

In reviewing the allegations, issues instruction and evidence, it is our conclusion the plaintiffs have failed to present a proper basis supporting its theory of liability. Wholly lacking are any references to the vendee’s conduct or knowledge which are essential factors in the vendor’s liability. If the vendee knew of whatever latent defect is complained of or could have discovered such latent defect within a reasonable time and could have reasonably been expected to remedy such defect before the incident occurred, then the vendor is not liable. In response to these deficiencies the plaintiffs argue that they are not required to elect between conflicting theories of recovery and consequently they argue that these factors or elements need not be alleged or the jury instructed about them. We do not agree with this argument, since it is our conclusion that the instruction incorrectly and inadequately states the law applicable and would permit a jury to hold a vendor not in possession liable where, as in the instant case, the vendee’s knowledge and conduct might well have precluded vendor’s liability. We therefore believe the judgment against Union Oil Company cannot stand.

We have earlier referred generally to the cross-appeal filed by plaintiffs against R. H. Lincoln and have indicated that such cross-appeal by specific declaration and its nature is contingent upon our rulings regarding the appeals of Northern Illinois Gas Company and Union Oil Company. Since we have sustained the judgment against Northern Illinois Gas Company, it is our belief that no useful purpose would be served the plaintiffs by considering such cross-appeal and, further, we assume tire plaintiffs would have no interest in this court considering the crossr appeal.

For the foregoing reasons, the judgments of the circuit court of Peoria County in favor of the plaintiffs against Northern Illinois Gas Company are affirmed, the judgments against the plaintiffs and in favor of R. H. Lincoln Company are affirmed, and the judgments in favor of the plaintiffs against Union Oil Company are reversed.

Judgments affirmed in part, reversed in part.

SCOTT, P. J., and DIXON, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert L. Brady, Defendant-Appellant.
    (No. 12564;
    Fourth District
    October 31, 1974.
    B. H. Huschen of Roanoke, for appellant.
    Richard W. Leiken, State’s Attorney, of Eureka (Kai A. Wallis, of Circuit Attorney Project, of counsel), for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant appeals from his conviction following a bench trial of the offense of reckless driving and from a sentence imposed of 7 days’ imprisonment in the county jail. The primary issue before this court is whether defendant was proven guilty beyond a reasonable doubt.

There is no verbatim report of the trial court proceedings. Defendant’s report of the proceeding is as follows: Larry B. Routley, a Washburn, Illinois, police officer, testified that he observed defendant in the early morning hours of October 20, 1973, driving down Main Street in Wash-bum crossing from one side of the road to the other. He estimated that defendant was travelling approximately 50 m.p.h., and stated that he followed defendant until the blacktop road became gravel at which time he lost sight of defendant. He further stated that he was about a block away from defendant when he made his observations, and that there was no squealing of tires. On cross-examination he stated that the offense occurred on State, not Main Street, that there was no center line in the street, that there were no other cars, people or children present in this sparsely populated residential area, that defendant drove on the right but at times crossed to the left, and that he did not turn on the red light or siren. Defendant testified that he was following a friends truck on the evening in question, that he was driving at approximately 35 m.p.h., and that he stayed on the right-hand side of the road. The State’s report of proceedings adds the following: Routley stated that his speedometer read 50 m.p.h. and that he was not able to catch defendant at that speed. Furthermore, he stated that he reduced his speed when the defendant’s car reached the gravel road because of the heavy dust generated by defendant’s car.

We believe that the record shows that defendant was guilty of the offense beyond a reasonable doubt. Authority is not necessary for the proposition that the question of credibility is for the trier of fact to decide. In the present case Officer Routley testified that defendant was travelling over 50 m.p.h., was driving in a residential district of the village, and was crossing from the right to the left side of the road and back. Such testimony, if believed, clearly constitutes recklessness within the meaning of the statute.

Defendant also raises various other issues in his brief but does not argue these issues nor does he cite any authority in support thereof. Supreme Court Rule 341(e)(7) (Ill. Rev. Stat. 1973, ch. 110A, par. 341 (e) (7)) states:

“(7) Argument, which shall contain the contentions of the appellant and the reasons therefor, with citation of the authorities and the pages of the record relied on. * * * Points not argued are waived * *

Likewise, we deem these issues waived. Our review of the record indicates that justice is not denied by such a disposition.

Accordingly, for the reasons stated above the judgment of the circuit court of Woodford county is hereby affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


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    The People of the State of Illinois, Plaintiff-Appellee, v. Douglas Hardwick, Defendant-Appellant.
    (No. 12539;
    Fourth District
    October 31, 1974.
    Phillip D. Moore, of Jerseyville, for appellant.
    No appearance for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendant appeals from an order of the circuit court of Jersey County revoking his probation and transferring him to the custody of the Illinois Department of Corrections, Juvenile Division. Defendant raises the' following issues: (1) Whether the trial court erred in continuing the hearing on probation revocation without giving proper notice, (2) Whether the trial court erred in permitting the State to amend the probation revocation petition without giving defendant proper notice or proper time to prepare a defense, (3) Whether additional probation-revocation charges can be placed against defendant after the initial petition to revoke is filed, (4) Whether the court erred in allowing the State to present its case at the probation-revocation hearing piecemeal and not in proper sequence, and (5) Whether the court erred in allowing the introduction of evidence regarding an illegal search and seizure.

The State’s Attorney in this case has neither filed a brief nor argued the cause in this court. Therefore, review of the merits of the issues raised by defendant would necessitate this court assuming the position of being an advocate for one party contrary to well established principles of judicial review. People v. Dossett, 7 Ill.App.3d 696, 288 N.E.2d 518 (4th Dist.); People v. Holland, 11 Ill.App.3d 416, 298 N.E.2d 864; People v. French, 9 Ill.App.3d 797, 293 N.E.2d 136; and People v. Spinelli, 83 Ill.App.2d 391, 227 N.E.2d 779.

Accordingly, the order of the circuit court of Jersey county revoking defendant’s probation is reversed pro forma, and the cause is remanded for a new probation-revocation hearing.

Reversed and remanded.

SMITH, P. J., and TRAPP, J., concur.


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      In re Clear Creek Special Drainage District of Cass County—(David Carls et al., Commissioners of the Clear Creek Special Drainage District of Cass County, Petitioners-Appellees, v. Mede Anderson et al., Respondents (Louise Lord et al., Objectors-Appellants).)
    (No. 12441;
    Fourth District
    October 31, 1974.

      Rehearing denied December 10, 1974.

      Samuel S. Blane, of Petersburg, for appellants Ralph and Louise Lord.
    Howard S. White, of Havana, for appellants Rudy Korte et al.

    Milton McClure of McClure, McClure & Brannan, of Beardstown, for appellees.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

The Commissioners of Clear Creek Special Drainage District filed a petition, in the circuit court of Cass County, to annex lands to the district. Objections were filed by appellants, the owners of lands sought to be annexed. After extensive hearings, the trial judge found that the lands would be benefited, by the proposed improvements and allowed the petition to annex and the percentage of assessment attributed to the improvement.

Appellants urge that (1) the findings of the trial judge are contrary to the manifest weight of the evidence (both as to benefits, and as to one tract, the percentage of assessment attributed), and (2) that the district was without authority to annex. We affirm.

For a period of several years prior to December 1969, the Soil Conservation Service, an agency of the United States Department of Agriculture, carried out a study of the problems existing in areas bordering the Illinois River Waterway. One of the areas studied was the Clear Creek watershed which encompasses an area of some 26,000 acres in Cass County, Illinois, and within which lies the Clear Creek Special Drainage District as well as the lands sought to be annexed. A comprehensive plan was developed by the Soil Conservation Service which the Drainage District proposed to implement by annexing the subject lands and expending approximately $172,000 for acquisition of land rights, this expenditure to be funded by a small interest loan from the Farm Home Administration. The balance of the costs, mainly for structural purposes, in the amount of $1,130,740 is to be borne by the Soil Conservation Service.

The easterly portion of the Clear Creek watershed is part of the Illinois heartland prairie, which is flat, subject to sheet erosion and is becoming subject to gully erosion. Adjoining the prairie area on the west is a transitional area descending from the prairie area to the Illinois River peneplain which extends westerly to the Illinois River. The peneplain is flat and fertile but, petitioners allege, is suffering damages from flooding and sedimentation which originates in the upper portions of the watershed. The difference in elevation between the higher prairie lands and the peneplain is about 200 feet. Normal rain water runoff falls about 33 feet per mile as it passes through the transitional area and acquires a high velocity and heavy sedimentation. The runoff from the prairie and transitional areas is discharged onto the peneplain, in the area sought to be annexed, by three ditches or creeks, the Vette Ditch, Clear Creek and Meyers Branch. The proposed plan of improvements provides, in essence, for a series of structures which would, in periods of heavy rainfall, collect and contain the water, and subsequently release them at a controlled steady rate of flow, thus preventing or reducing flooding and sedimentation in the peneplain area. Structures would also be placed, for flood control purposes, in Clear Creek and Meyers Branch. A series of tributary drainage ditches would be constructed in the lands annexed, and existing ditches would be taken over and maintained by the District.

We find no merit in the contention that the judgment of the trial court is against the manifest weight of the evidence. The “Work Plan” for the Clear Creek watershed, prepared pursuant to the detailed study made of the area in question by the Soil Conservation Service was received in evidence. It describes in minute detail the problems of flooding, erosion, and the resulting annual damages to roads and crops, as well as the problems caused by sedimentation. The petitioners also offered the testimony of one Harrison Phillips, a hydraulic engineer with a background of experience and knowledge in farm drainage problems. Phillips was familiar with the area, and also had the benefit of the details of the “Work Plan.” The testimony was in conflict; the objectors claiming no flooding or sedimentation problems and seeing no benefit to be gained by the proposed control measures. The appellants insist that the trial judge placed too much reliance on Phillips’ testimony. Phillips’ direct testimony and cross-examination consume in excess of 300 pages of the record. He testified in detail as to each tract sought to be annexed and to the benefits occurring to each tract as a result of the improvements. That the trial judge is charged with the task of deteimining the credibility of the witnesses and the weight to be given their testimony is a principle too well established to require citation. The judgment of the trial court is not against the manifest weight of the evidence in any particular.

Section 8 — 3 (Ill. Rev. Stat. 1971, ch. 42, par. 8 — 3) of the Illinois Drainage Code provides that “[w]hen any land lying outside of a district * * * has been or will be benefited or protected by any district work done or ordered to be done, the commissioners may petition the court to annex such land to the district.” It was under this provision that the proceedings in this case were instituted in the trial court. The parties agree that the crux of this case is whether or not the various tracts in question will be benefited by the work above described. We have indicated that the trial judge’s affirmative answer to that question is not against the manifest weight of the evidence.

Appellants urge, however, that the above-quoted provision of the statute was not intended to permit enlargement of a drainage district “* 6 * beyond what would be required for purposes of the district as originally constituted * * *” and that the trial judge lacked both jurisdiction and authority to enter the order in question. In support of this argument appellants cite three cases: People ex rel. King v. North Fork Outlet Drainage District, 331 Ill. 68, 162 N.E. 184; People ex rel. Clifton v. Swearingen, 273 Ill. 630,113 N.E. 166; and Westerhold v. Hale, 397 Ill. 567, 75 N.E.2d 27. These cases were decided under the provisions of section 58 of the Levee Act which contained essentially the same language as that above quoted from section 8 — 3 of the Illinois Drainage Code.

In Westerhold, supra, the Federal government, acting through the War Department undertook to construct flood control improvements. The Wood River Drainage and Levee District (as in the instant case) was required to purchase rights of way and maintain the structures after the work was completed. The lands annexed involved some 6500 owners. The supreme court affirmed the order of the county court which ordered the lands annexed. In its opinion the court, at page 574, stated:

“The court’s power to act in a proceeding under section 58 is limited to the purposes specified in the act. It provides a means whereby lands that are not within a drainage district but which will receive benefits from the work of the district may be annexed to and made a part of it. It is purely an annexation proceeding, and, as was held in People ex rel. King v. North Fork Outlet Drainage Dist. 331 Ill. 68, it cannot be construed as authorizing action which ivould enlarge the district and extend its work beyond what would be required to carry out the purposes of the district as originally constituted.” (Emphasis added.)

The emphasized portion of the quoted portion of the Westerhold opinion, it is argued, prohibited the entry of the order appealed from. We first note that the factual circumstances in Westerhold are very similar to those present here. People ex rel. King v. North Fork Outlet Drainage District, 331 Ill. 68, 162 N.E. 184, involved an attempt by the Commissioner to greatly enlarge the district just 5 years after its formation. The supreme court held that section 58 of the Levee Act did not permit a drainage district to construct a more extensive system of drains than necessary “* * * to properly drain the lands of the district as organized, with a view later to annex other territory * s *” and “* * * in anticipation of the annexation of other land to the district.” 331 Ill. 68, 74, 75.

In People ex rel. Clifton v. Swearingen, 273 Ill. 630, 113 N.E. 166, 22 land owners petitioned to organize a drainage district encompassing 3020 acres of land. An order allowing the petition was entered December 11, 1909. Within a period of approximately 2 years the Commissioners filed successive petitions to annex land which would have enlarged the district to an area in excess of 30,000 acres. The court, in holding that the additional lands could not be annexed, found that the original district had been formed “* * * with a view to organize a much larger district * * and that the proceedings “* * * show an attempt to organize the district by first organizing a small body of land as a nucleus, in the form of a district, and then, by adding other lands on complaint of the commissioners and against the will and protest of the added landowners, and after abandoning the first system of drainage, to expand the district to its intended dimensions, with suitable and sufficient drainage for the entire district.” 273 Ill. 630, 638, 639.

This record discloses no effort to circumvent the statute. The precise date of the organization of the Clear Creek Special Drainage District is not established. The parties agree, however, that it has been in existence for many years; it was apparently established between 50 and 70 years ago. It was clearly not organized as a “nucleus” around which to organize a larger district, nor was it formed “with a view later to annex other territory.”

The annexation in question is within the purview of the statute. The trial judge found that the lands sought to be annexed will be benefited by the work of the district. The judgment is affirmed.

Judgment affirmed.

SMITH, P. J., and TRAPP, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Lawson, Defendant-Appellant.
    (No. 12366;
    Fourth District
    November 14, 1974.
    John F. McNichols, J. Daniel Stewart, and Daniel D. Yuhas, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Arthur A. Jones, State’s Attorney, of Paris, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

On November 23, -1963, defendant James Lawson, entered a plea of guilty to an indictment charging him with five counts of murder and was sentenced to a term of imprisonment of 60 to 100 years. No direct appeal was taken from this conviction. On May 7, 1973, a petition for post-conviction relief was filed in the Edgar county circuit court. On May 29, 1973, a hearing on the petition was held, and on June 14, 1973, the trial judge denied defendant’s petition for post-conviction relief. Defendant appeals from that denial. Two issues are presented to this court: (1) Whether the trial court erred in finding that defendant’s confession was not coerced and voluntary; and (2) Whether defendant’s plea of guilty entered after a coerced confession is inherently involuntary.

At the post-conviction hearing defendant testified that he was arrested in the late afternoon of September 1, 1963, and that he was questioned until 4 o’clock on the morning of September 2, 1963. Defendant stated that nothing was stated to him concerning his rights, that he was not told he could have a lawyer present, that he couldn’t make a phone call, that he couldn’t write letters, and that he couldn’t have any visitors. Defendant further stated that during this period of time he was not fed and was not allowed to sleep. Ralph Pearman testified that at the time of the offense in question he was State’s Attorney, that on September 1, 1963, he saw defendant at 7:30 in the evening at the county jail, and that he talked with defendant for less than an hour. He stated that later in the evening he also talked to defendant, and at that time defendant’s oral confession was transcribed. The transcript of the statement was then showed to Pearman who noted that the questions therein were a correct reflection of tihe questions asked defendant. He further stated that “* * * I talked to him I asked him if he wanted to eat something or if he wanted cigarettes or coffee or things of that nature.” He also stated that defendant was given the opportunity to make phone calls. On cross-examination he stated that the statement was taken from defendant at approximately 1:30 in the morning, and that when he was with defendant no threats were made. He also stated that defendant was advised that he did not have to make a statement and that if he did, it could be used against him. He further stated that defendant was asked if he had an attorney or if he wanted one. Carl Lund, defendant’s attorney at trial, testified that a motion to suppress the confession was not made at the trial (although the statement was objected to when introduced) and “[a]t that time our main interest on the confessions were, were they forced, done under coercion or on a threat and as I remember now, I remember specifically at this time that the objection was made because the statement was taken so late at night and as to the threats, they didn’t exist. This fellow [defendant] sat down there in the basement of the jail, this investigator and they had a nice little time visiting, during which they brought out all the damning testimony, what did you do and he was sympathetic with him. I objected to it, the admissibility on the theory that it happened so late at night that there had to be some coercion and that’s pretty thing [sic].”

Defendant’s statement taken at 1:45 on the evening of September 2, 1963, indicates that defendant stated that he had only been questioned for several hours, that he at all times had been allowed to smoke, eat or drink coffee, that he had not been mistreated or threatened, that he had the opportunity to make phone calls, that he made the statement freely and voluntarily, and that he understood that the statement could be used against him in court.

Defendant contends that the trial court erred in not finding that defendant’s confession was involuntary. We do not agree. We find nothing in the record to indicate that defendant’s confession was involuntary or coerced. The only testimony in this regard was that of defendant at his post-conviction hearing. This testimony, however, was contradicted in every respect by the trial record, the State’s witnesses at the post-conviction hearing, including defendant’s trial counsel, and defendant’s statement itself.

Accordingly, for these reasons the trial judge properly denied defendant’s post-conviction petition, and we therefore affirm.

Affirmed.

SMITH, P. J., and TRAPP, J., concur.