author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Stephen Johnson, Defendant-Appellant.
    (No. 59802;
    First District (5th Division)
    October 25, 1974.

      Rehearing denied December 3, 1974.

      Paul Bradley and Margaret Maxwell, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court, as modified upon denial of petition for rehearing:

Defendant was indicted for the offenses of arson (Ill. Rev. Stat. 1967, ch. 38, par. 20 — 1), attempt (arson) (Ill. Rev. Stat. 1967, ch. 38, par. 8 — 4) and possession of explosives (Ill. Rev. Stat. 1967, ch. 38, par. 20 — 2). He was found guilty by a jury on the charges of attempt (arson) and possession of explosives. He was sentenced to terms of not less than 10 nor more than 20 years on the charge of possession of explosives and not less than 10 nor more than 14 years on the charge of attempt (arson), the sentences to run concurrently.

On appeal, defendant contends that (1) the State failed to prove defendants guilt beyond a reasonable doubt in that it did not prove defendant knowingly possessed an explosive or intended to use it in an attempt to commit arson; (2) the trial court erred in denying defendant’s motion to suppress a piece of p'pe found in the trunk of defendant’s car; (3) the trial court erred in denying defendant’s motion to suppress a pipe and fuse allegedly found in defendant’s bedroom; (4) the trial court erred in permitting the State to ask a hypothetical question as to the extent of damage the explosion would cause; (5) the sentencing on both the charge of possession of explosives and attempt (arson) was error in that both arose out of the same course of conduct; and (6) the minimum sentence imposed exceeds that required by the Unified Code of Corrections. The facts are substantially as follows:

At approximately 10 P.M. on July 19, 1968, a night watchman, Surgel Jones, observed three persons running from the vicinity of the storage area of the Hartigan Oil Company, 4856 South Morgan Street, Chicago. Shortly thereafter, Jones observed a small fire directly beneath Hartigan’s 011 tanker No. 93. He noted that the valve on tanker No. 93 was open, and that oil was draining onto the ground. Jones first attempted to douse the flames with water but only succeeded in spreading the fire. He then smothered it with a cushion. A partially burned flare was found in the vicinity. Jones did not report this occurrence to the police or fire department that night.

Early the next morning, Jones showed the area of the fire to a Hartigan official, Felix Ostrowski. The two men discovered beneath the tanker a length of scorched pipe with a fuse protruding from one end. Ostrowski then called the police, who later identified the length of pipe as a bomb.

Also, on the night of the occurrence, at approximately 10:45 P.M., Sergeant Fred Herr of the Chicago Police Department, on routine patrol, was driving a marked squad car south on Aberdeen Avenue near its intersection with 48th Street. A large vacant lot is located on the southeast corner of the intersection which backs up on the Hartigan Oil Co. yard. At that time, Herr observed a 1966 black Buick parked on the south side of 48th Street, facing east. He also observed defendant walking in the vacant lot about 30 feet from the Buick.

Sergeant Herr flashed his light on defendant and saw a hairline reflection from a shiny, cylindrical object which appeared to be 20 to 24 inches in length and approximately 1 inch in diameter. Defendant turned abruptly and walked back to his car. He opened the trunk and placed the object in the trunk and locked it. Herr, whose original observations were made from a distance of approximately 100 feet, was about 12 feet from defendant’s car at this time.

As Herr approached the Buick, he noticed two other individuals inside the car. He made a call for assistance and then got out of his squad car with his service revolver drawn at his sidé. He asked defendant for identification, and defendant produced a trafile citation, in lieu of a drivers license, and a car registration indicating the car to be his mother’s. Assistance arrived, and the two individuals in the car were ordered out, and they and the car were searched. When defendant was asked for the keys to the trunk, he replied that he had given them to Paul Martin, one of the others in the car. Martin then told Herr that he must have dropped them. Minutes later, the officer found the keys in some grass near the passenger’s side of the car. He then opened and searched the trunk and found therein a pipe bomb. Defendant and his companions were taken into custody and formally charged with possession of explosives.

Detective Edward Sheridan testified that 2 days later he and Officer Vernon Baker went to the home of defendant’s parents, with whom defendant resided. They went there in the belief that the Johnsons might have had some information regarding Paul Martin, one of those arrested with defendant. The Johnsons were aware that their son was in custody but were uninformed as to the charges which the officers then explained. Sheridan testified that Mrs. Johnson expressed concern as to the possible existence of a bomb in the house and, according to the officer, asked them to look around. Mrs. Johnson testified that the police asked her if they could look around and that she and her husband agreed to let them search but didn’t specifically ask them to look for bombs.

In any event, Mrs. Johnson accompanied the officers in the search of the house, where Sheridan testified he found in a bedroom used by defendant a piece of pipe and a length of red fuse which was about 8 or 8V2 inches long. Mrs. Johnson testified that no pipe or red fuse was taken from the house but that a short grey firecracker fuse was found in the bedroom. The officers subsequently asked Mrs. Johnson to sign a consent form for the search, which she did voluntarily.

At trial, expert testimony indicated striking similarities between the fuse and the powder found in the pipe bomb under the tanker and the one found in the trunk of defendant’s car. Similarities also existed in the style of construction of the two bombs, and' the fuse allegedly found in defendant’s bedroom was the same type as that used in the two pipe bombs.

Opinion

I.

We will review the search issues first, as the evidence sought to be suppressed constitutes a major portion of the total evidence against defendant. In this regard, we note that the legality of the search of the trunk of this car was ruled upon by this court in the companion case involving Green, Johnson’s alleged accomplice and one of the passengers in Johnson’s car. (See People v. Green, 14 Ill.App.3d 972, 980-981, 304 N.E.2d 32, 39, cert. denied, - U.S. -, 41 L.Ed.2d 1143, 94 S.Ct. 3179 (1974).) Defendant acknowledges that fact but contends that the holding in that case was erroneous. We do not agree and affirm our ruling there that the motion to suppress was properly denied. The trial court expressly found that although the officer could not see the barrel, nonetheless he could reasonably have believed that Johnson had a rifle and that Johnson was apparently concealing a weapon. We agree with the trial court that Officer Herr possessed sufficient probable cause to believe Johnson was committing the crime of Unlawful Use of Weapons. See Green, supra, at 980-981.

II.

Defendant next contends that the evidence found in defendant’s bedroom (the piece of pipe and the red fuse) should have been suppressed where he did not consent to the search and there was no search warrant. It is well settled under the Fourth and Fourteenth Amendments that a search conducted without a warrant issued upon probable cause is “per se unreasonable * * * —subject only to a few specifically established and well-delineated exceptions.” (Schneckloth v. Bustamonte, 412 U.S. 218, 219, 36 L.Ed 2d 854, 93 S.Ct. 2041; Katz v. United States, 389 U.S. 347, 357, 19 L.Ed.2d 576, 88 S.Ct. 507.) One such exception is a search conducted pursuant to consent. (Bustamonte, supra, at 219; Davis v. United States, 328 U.S. 582, 593-594, 90 L.Ed. 1453, 66 S.Ct. 1256.) When the prosecution seeks to justify a warrantless search by proof of voluntary consent, it is not limited to proof that consent was given by defendant, but may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises or effect sought to be inspected. (United States v. Matlock, 415 U.S. 164, 171, 39 L.Ed.2d 242, 249-50, 94 S.Ct. 988, 993.) The authority which justifies the third party consent does not rest upon the law of property, with its attendant historical and legal refinements (see Chapman v. United States, 365 U.S. 610, 5 L.Ed. 2d 828, 81 S.Ct. 776 (landlord could not validly consent to the search of a house he had rented to another); Stoner v. California, 376 U.S. 483, 11 L.Ed.2d 856, 84 S.Ct. 889 (night hotel clerk could not validly consent to search of customer’s room)), but rests rather on the mutual right of use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants could permit the inspection in his or her own right and that the others have assumed the risk that one of their number might permit the common area to be searched. Matlock, supra, at 171.

In People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81, decided prior to Matlock, the Illinois Supreme Court stated a related twofold test of the validity of a search conducted pursuant to a third party’s consent. Nunn holds, in effect, that the party objecting to the search must have an actual expectation of privacy in the area searched and that that expectation must be a reasonable one.

Synthesizing Matlock and Nunn is the Illinois Supreme Court’s recent decision of People v. Stacy, 58 Ill.2d 83, 317 N.E.2d 24. There, the court states at pages 88-89:

“Although Matlock did not adopt the ‘expectation of privacy’ test of Nunn, the results in the two cases are not inconsistent. If one has consented to the mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched,’ these facts would indicate that the co-occupant has likewise surrendered his expectation of privacy in the property.”

Thus, the court recognizes that the Nunn requirement that “the person searched must have an actual expectation of privacy and this expectation must be reasonable” (Nunn, supra, at 348) is merely the converse of the Matlock expression that no right of privacy exists where it is “reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right.” Matlock, supra, at 171.

Nonetheless, the court goes on to deemphasize the subjective “expectation of privacy” test, stating that such is “irrelevant” and that “the validity of the search * # * is to be judged by the more objective ‘common authority’ test of Matlock.” Stacy, supra, at 89.

Applying the “common authority” test to this case indicates the mother had such authority and that her consent to search was sufficient. She and her husband owned the house, and although the son resided there and had his own room, it was freely accessible to the mother at all times. She cleaned it every weekend and changed the linen. Though the son was married, he was not then living with his wife, and there was no evidence that the door was ever locked or that defendant had ever given his mother instructions to stay out of his room, as was the case in Nunn. Thus, we feel that the mother had joint access or control over the room and could consent to the search in her own right. The totahty of circumstances indicate her consent was voluntary and the search was therefore vahd. (Bustamonte, supra.) Whatever that search revealed could properly be admitted and tire question of whether the pipe and fuse were found in the room as the officers testified, or not found there as defendant’s mother testified, was a matter of credibifity only and as such was exclusively within the province of the jury.

III.

Defendant next contends that the State did not prove his guilt beyond a reasonable doubt in that it did not prove that he knowingly possessed an explosive or intended to use it in an attempt to commit arson. At trial, defendant testified that he had picked up a brass tube in a field near Hartigan Oil Co. without knowing that the object was a bomb. He denied placing a bomb at the Oil Co. He testified that on the night he was arrested he had stopped to look for a piece of wire to hold down the hood of his car. He saw three or four people in the field run to a car. One of those people threw something into the field as he ran. Defendant testified he then went to his trunk and obtained a flashlight to look for a wire and to see what had been discarded. He saw that the tube was brass but had not yet examined it when Officer Herr placed his light on him. He then picked up the tube, returned to his car and placed it in the trunk. Yet, when asked by the officer what he was doing in the field, defendant merely answered that he was “going to take a leak.”

The crime of arson can rarely be established by direct and positive testimony of witnesses who actually saw the fire set. (People v. Wolf, 334 Ill. 218, 230, 165 N.E. 619.) The inferences of guilt must be drawn from the surrounding circumstances satisfactorily proved. (Wolf, supra, at 230.) A court of review should not disturb the verdict of a jury unless the verdict appears to have been the result of passion or prejudice or unless the evidence is so unsatisfactory as to warrant a reasonable doubt of guilt. (Wolf, supra, at 230.) Where the evidence is merely conflicting, the credibility of the witnesses and the weight to be given their testimony is a question for the jury, and the reviewing court will not substitute its judgment for that of the jury. (People v. Lobb, 17 Ill.2d 287, 294, 161 N.E.2d 325.) Here, the jury had more than ample evidence from which to deduce that defendant had committed the crimes of attempted arson and possession of explosive devices. The second pipe bomb found in the trunk substantially similar to the one found under the tanker provided a sufficient nexus with the crime for the jury’s consideration. They could-properly have considered the p'pe and fuse found in defendant’s room as rebutting defendant’s explanation of his having found the pipe bomb in the field. After an examination of the entire record, we are satisfied that the verdict is supported by the evidence.

IV.

Defendant next objects that the trial court erred in permitting the State to ask a member of the Bomb and Arson Squad a hypothetical question concerning the extent of damage that would have been caused had the bomb gone off. The arson statute (Ill. Rev. Stat. 1973, ch. 38, par. 20 — 1) provides:

“A person commits arson when, by means of fire or explosive, he knowingly:
(a) Damages any real property, or any personal property having a value of $150 or more, of another without his consent; # # #»

As stated in People v. Helm, 9 Ill.App.3d 143, 148, 291 N.E.2d 680, 684:

“The reference to the $150 limitation is clearly stated in the disjunctive and applies not to real property but only to personal property. Nor does the $150 limitation relate to the amount of damage done but rather to the value of the item damaged.”

The arson indictment charged defendant with damage to the real property of the Haitigan Oil Co. The attempted arson indictment merely charged that defendant attempted to damage the property of Hartigan Oil Co. It was thus incumbent upon the State to show that the arson envisaged damage to real property or to personalty having a value in excess of $150. We believe this requirement was met by evidence that the explosion would have damaged the permanent storage tanks in the area, i.e., real property.

Although proof of damage to realty or to personal property having a value in excess of $150 was proper, the extended inquiry into the possible explosion of the fumes in the permanent storage tanks and the ensuing damage that such explosion might have caused was unwarranted. However, objection was properly made and sustained, and we are of the opinion that any error in the prosecutor’s further inquiry as to the extent of damages could only minimally prejudice the defendant, if at all, since his defense denied his commission of the act, claiming that those he allegedly saw in the field must have started the fire under the tanker. He did not attempt to negate the testimony that a large explosion and fire would result nor did it matter to his theory of the case. Thus, we feel that any error was not prejudicial to defendant and certainly was not such error as would require reversal.

V.

Defendant finally contends that the imposition of two concurrent sentences is improper, since the crimes of attempt (arson) and possession of explosives arose out of the same conduct or transaction. We agree with this contention. See People v. Whittington, 46 Ill.2d 405, 265 N.E. 2d 679; People v. Green, 14 Ill.App.3d 972, 304 N.E.2d 32, cert. denied, -- U.S.-, 41 L Ed 2d 1143, 94 S.Ct. 3179 (1974); People v. Garnes, 12 Ill.App.3d 210, 298 N.E 2d 399.

Since possession of explosives is the more serious of the two offenses, 1 to 20 years for the Class 2 felony as opposed to 1 to 10 years for the Class 3 felony of attempt (arson), the judgment of conviction on the indctment for attempt (arson) must be reversed. See People v. Lilly, 56 Ill.2d 493, 309 N.E.2d 1; Green, supra, and Games, supra.

VI.

We note also that on the charge of possession of explosives, defendant was sentenced to not less than 10 nor more than 20 years. Possession of explosives is a Class 2 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 20 — 2(b).) Under the Unified Code of Corrections the permissible maximum sentence for a Class 2 felony shall be any term in excess of 1 but not exceeding 20 years. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(b) (3).) In addition, the minimum sentence is 1 year, unless the court sets a higher term which, in any event, may not exceed one-third of tire maximum. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(3).) The Unified Code of Correct’ons applies to cases pending on appeal. (People v. Chup'ch, 53 Ill.2d 572, 295 N.E.2d 1; People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Therefore, defendant’s minimum sentence here must be reduced to one-third of the maximum. Accordingly, we reduce defendant’s sentence to a term of not less than 6% years nor more than 20 years.

Furthermore, defendant should be accorded credit for time spent in custody as a result of the instant charges. The Unified Code so provides. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—7(b).) Although it would appear that such credit could more conveniently be computed and allowed by the Department of Corrections, it has been the practice of some trial judges to compute and allow this credit and to amend the mittimus accordingly. We believe that it does not matter how it is accomplished, so long as the credit is given as required.

It appears also that after defendant’s arrest, but before his trial on the instant charges, he was tried in Indiana on another charge and served some time in prison there. It is indicated that he was released from his imprisonment there to be tried here. We have not been informed as to whether any portion of his Indiana sentence remains to be served. However, if there is an unexpired sentence in Indiana, the trial court here may, in its discretion, (1) order his sentence here to be concurrent with the prior sentence in Ind'ana; and (2) order that any time served on the unexpired portion of the Indiana sentence, prior to his return to Illinois, be credited on his sentence here (Ill. Rev. Stat. 1973, ch. 38, par. 1005— 8 — 1(f))-

For the reasons given, the judgment is reversed as to the conviction of attempt (arson); as to the conviction of the offense of possession of explosives, the sentence is modified to a term of not less than 6 years 8 months nor more than 20 years and, as modified, the judgment is affirmed; and the cause is remanded to the trial court to provide for sentence credit or credits as set forth herein.

Reversed in part.

Affirmed as modified, in part.

Remanded for consideration of sentence credit.

DRUCKER and LORENZ, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE HALLETT

license: Public Domain

text:
    Tillie Perzovsky, Individually and as Adm’rx of the Estate of Harry Perzovsky, a/k/a Harry Perzov, Plaintiff-Appellee, Cross-Appellant, v. Chicago Transit Authority et al., Defendants-Appellants—(The City of Chicago, Defendant,Cross-Appellee).
    (No. 57908;
    First District (1st Division)
    November 4, 1974.

      James G. O’Donohue, Jerome F. Dixon, and Paul Denver, all of Chicago, for appellants Chicago Transit Authority et al.

    Theodore L. Forsberg, of Chicago, for cross-appellant Perzovsky.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quin-lan and Dennis James Stolfo, Assistant Corporation Counsel, of counsel), for cross-appellee City of Chicago.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

Tillie Perzovsky brought suit below, both in her capacity as administratrix of her deceased husband’s estate and individually, against the Chicago Transit Authority (hereinafter CTA) and the City of Chicago (hereinafter the City). She alleged in her complaint that both defendants had negligently caused the wrongful death of her 65-year-old husband. He had been found lying in the street severely injured, barely conscious, and unable to speak around 6 A.M., February 20, 1987, by a woman about to enter a CTA bus. He was lying between the right front wheel of the bus and a utility pole positioned on the curb. There were no eyewitnesses to the accident. Plaintiff contended below that deceased had been struck by the CTA bus and bounced into the utility pole maintained by the City. The jury found the CTA guilty and the City not guilty. Damages were awarded to plaintiff in the amounts of $75,000 in her capacity as administratrix and $1,440.50 in her capacity individually. The trial court entered judgment on the verdict but reduced her recovery as administratrix to $30,000.00 in accordance with the then existent limitation provision of the Injuries Act (Ill. Rev. Stat. 1967, ch. 70, par. 2).

The CTA has appealed, asking that we either reverse outright the judgment of the Mai court or reverse and remand the cause for a new Mai. Plaintiff, in addition to being the appellee, has cross-appealed against the defendant for procedural reasons. In the event that we should reverse the judgment of the Mai court as to the CTA, she seeks that we also reverse as to the City and remand the cause for a new Mai against both.

The CTA contends (1) that plaintiff failed to prove that deceased exercised due care for his own safety; (2) that the trial court erred when it admitted testimony by an ambulance attendant respecting what deceased had told him about the accident on the way to the hospital; (3) that plaintiff failed to establish that the CTA was negligent; (4) that plaint'ff failed to show that the CTA drivers violation of a municipal ordinance (Municipal Code of Chicago 1958, ch. 27, par. 276(b) (c)) caused deceased’s injuries or that the ordinance was enacted as a public safety measure; (5) that in any case the ordinance is unconstitutional; and (6) that the jury’s verdict is against the manifest weight of the evidence. We hold otherwise and affirm the judgment of the trial court.

Two CTA bus drivers were involved in the suit below. Testimony at trial established that Orville Murray, the driver of what we shall call Bus A, pulled into the south-bound bus stop on Lincoln Avenue at the corner of Lincoln and Irving Park Road. His route had previously taken him east on Foster (5200 North) to Lincoln where he had turned south. He dropped off a few passengers and waited for the light at the intersection to turn green. When it did, he proceeded across Irving Park and down Lincoln. He stated that at no time did he see the deceased either as a passenger on his bus or walking alongside his bus or lying at the curb.

Constantine Desch, the driver of what we shall call Bus B, testified that his route on Lincoln had begun farther north than the other driver’s route. Specifically, he had picked up some passengers at Lincoln and Berwyn (5300 North — one block north of Foster) and proceeded south on Lincoln. He arrived at Lincoln and Irving Park just behind bus A which was stopped in the bus stop. He pulled up a few feet behind bus A and stopped outside the bus stop. The front end of his bus was angled in toward the curb about 3 feet from it and the back end was approximately 6 feet away from the curb. He opened the doors of the bus. One lady got on. He did not know whether any passengers got off the bus. When the light changed, bus A moved out of the bus stop and he slowly moved his bus forward into the space previously occupied by bus A. He stopped about 3 feet from the curb. There he noticed a woman approaching the bus stop whom he recognized as a regular passenger. He waited for her to board the bus. When she got on, she told him that there was a man lying in the street. He got off the bus and noted that the man was lying between the right front wheel of the bus and the utility pole at the curb. An ambulance was summoned. It arrived in approximately 5 minutes. The man was taken to a hospital where he died within a few hours. The ambulance attendant testified over objection by the CTA that deceased told him he had been struck by a “vehicle.” Deceased did not specify what kind of vehicle struck him.

A pathologist for the Coroner testified that deceased suffered injuries and fractures caused by a compression force and roll.

The driver of bus B originally stated that the first time he saw the deceased that morning was when the woman told him about the man in the street and he got off the bus to check. He added that he had not seen anyone standing or lying in the street as he pulled into the space vacated by bus A. He also stated that he did not hit anyone. Subsequently, however, he admitted that on previous occasions the deceased had been a passenger on his bus and that he had picked up two men at Lincoln and Berwyn that morning one of whom might have been the deceased. He further admitted that he had previously testified at the coroner’s inquest into the death of the deceased that deceased had been a passenger on his bus that morning. In addition, he admitted that deceased had been found that morning to be carrying a transfer from his bus.

Both drivers testified that they saw no snow packed along or on the curb. However, a police officer who investigated the accident testified , that there was snow packed on the curb. Further, a witness for the CTA testified that U. S. Weather Bureau reports for the time of the accident listed that there was some snow still on the ground from a previous snowfall.

The woman who first noticed the deceased lying in the street testified that she saw him lying on the ground before either bus A or bus B arrived. She stated that bus A passed her without stopping and that she :had to wait for bus B to pull up to her before she could tell the driver about the man.

• Police officers testified that they were unable to find any eyewitnesses. . Plaintiff produced a witness who testified that he had known the deceased for about 25 years, that deceased was married, supported his family and was, in his opinion, a very careful man.

Plaintiff’s theory of the case was that her husband had boarded bus B at Lincoln and Berwyn and alighted from the bus when it pulled.up ■behind bus A at Lincoln and Irving Park. She maintained that he was unable to get to the sidewalk without climbing over some snow piled up on the curb which he was unable to do because of his age. As a result, ■he walked in the street ■ alongside the bus toward the corner. He was •struck by the bus and bounced into the utility pole when the bus pulled up to the bus stop at the intersection. She argued that the-driver of bus B -violated his duty of- due care toward the decedent by, neglecting, to provide him with a safe place in which to alight from the bus. She also cited a provision of the Municipal Code which prohibits bus drivers from discharging passengers anywhere except in a designated bus stop where the bus is roughly parallel to the curb with its right front wheel within 18-inches of the curb. She argued that the driver of bus B had violated this provision by his own admission and that in so doing had prima facie negligently placed the deceased in a position of great peril ultimately resulting in his death. Finally, she contended that the defendant City was negligent in that it had placed a utility pole too close to the curb.

The CTA maintained that plaintiffs proof failed to establish that either bus struck the deceased and that, in any case, the deceased was contributorily negligent for being in the street instead of on the sidewalk.

Defendant City contended that they had no notice of the danger of the utility pole and that therefore they were not liable.

The jury found the City and the driver of bus A not guilty. They found the driver of bus B guilty. This appeal followed.

I

Appellant’s first contention is that the deceased was contributorily negligent as a matter of law, thereby barring the plaintiff from any recovery. The law in Illinois is that the question of contributory negligence becomes a question of law only when the evidence is so insufficient to establish plaintiff’s due care that all reasonable minds must necessarily concur that plaintiff was contributorily negligent (Lobravico v. Checker Taxi Inc. (1967), 84 Ill.App.2d 20, 28, 228 N.E.2d 196). We hold that the evidence was insufficient and was a question of fact for the jury.

Appellant maintains that deceased placed himself in a position of peril by being in the street instead of on the sidewalk. However, although there were no eyewitnesses, there is evidence tending to show that appllant may have placed the deceased in that position of peril. First, deceased probably was a passenger on appellant’s bus B as reflected by the driver’s admission that deceased may have been a passenger. There is also evidence that deceased disembarked from the bus when it first stopped behind bus A and opened its doors. Further, there was testimony by a police officer stating that there was snow packed on the curb. There was also testimony, admitted over appellant’s objection, that deceased was a man of careful habits. With all this testimony, it is reasonable to conclude that deceased, a man of 65, may have decided not to risk injury by stepping over the snow and he instead chose to walk alongside the bus toward the corner where he would have had easy and safe access to the sidewalk. In view of this, we conclude that the question of whether deceased exercised due care for his safety was a question of fact, properly left for the jury to consider.

Appellant contends, however, that it was error to admit testimony that deceased was a man of careful habits and that it was error to admit the alleged hearsay testimony of the ambulance attendant that deceased told him he had been struck by a vehicle. We disagree.

First, the ambulance attendant’s testimony shed little, if any, light on how the accident occurred since it did not specify what kind of vehicle struck him. Therefore, it did not prejudice the appellant. It would have been admissible in any case since it was part of the res gestae.

“* * * The term res gestae’ refers to those circumstances which are admissible when illustrative of an act. Whenever it becomes important to show, upon the trial of a cause, the occurrence of any fact or event, it is competent and proper also to show any accompanying act, declaration or exclamation which relates to or is explanatory of such fact or event.’ People v. Mulvaney, 286 Ill. 114, at 117, 121 N.E. 229; O’Donnell v. Travelers Ins. Co., 332 Ill.App. 222, 74 N.E.2d 735. When an out-of-court statement assists in constituting the transaction, the statement is competent because it does not depend for its effect on the credit or credibility of the declarant, but derives its probative force from its close connection with the occurrence which it accompanies and tends to explain, and is admissible as original evidence and not objectionable as hearsay. Dunn v. Dunn, 241 Ill. App. 11. * * (Grebe v. Vacek & Co., Inc. (1968), 103 Ill.App.2d 79, 93, 243 N.E.2d 438).

Here, the deceased was severely injured and in a state of shock, barely able to speak. His statement was closely connected with the accident and tended to explain what occurred.

Second, other than deceased’s said statement, there was no eyewitness testimony concerning the accident. Absent any direct and positive testimony from an eyewitness, it was proper to admit testimony concerning decedent’s careful habits so that the jury might consider it (McElroy v. Force (1967), 38 Ill.2d 528, 534, 232 N.E.2d 708; Turnbull v. Porter (1965), 55 Ill.App.2d 374, 374(o)-374(p), 206 N.E.2d 97; Hardware State Bank v. Cotner (1973), 55 Ill.2d 240, 302 N.E.2d 257). Further, appellant’s contention that the testimony respecting decedent’s habits was not entitled to consideration because no specifics were enumerated to support it is without merit. Appellant relies on McIntruff v. Chicago Title & Trust Co. (1968), 102 Ill.App.2d 39, 243 N.E.2d 657. Such reliance is misplaced. In that case the janitor of a certain building who was entrusted with the maintenance and care of that building fell down some stairs sustaining injuries which resulted in his death. Testimony that he was a man of careful habits was held to have little weight because he was well aware of the dangerous stairway and, in addition, he was found to have been a sick man who conceivably might have blacked out and fallen. The court concluded that evidence of his careful habits could be refuted by less than substantial evidence. The facts in the instant case are vastly different. We therefore hold that testimony concerning his careful habits was admissible as was the ambulance attendant’s testimony and that the issue of deceased’s exercise of due care was properly left to the jury to determine.

II

Plaintiff’s contention that the appellant was negligent was predicated on two separate theories. First, she maintained that appellant violated its duty of due care toward decedent and proximately caused his death when it neglected to provide him with a safe place to alight from the bus. This would constitute negligence (Katamay v. Chicago Transit Authority (1972), 53 Ill.2d 27, 289 N.E.2d 623). Second, she maintained that appellant violated a municipal ordinance enacted to protect public safety which proximately caused decedent’s death and which constituted a prima facie case of negligence (Gauchas v. Chicago Transit Authority (1965), 57 Ill.App.2d 396, 206 N.E.2d 752). If the proof was successful under either of these theories, then appellant was negligent.

Appellant argues that although their bus driver violated a city ordinance the particular ordinance involved was not enacted as a safety measure and therefore violation of the ordinance did not constitute a prima facie case of negligence. In any case, they maintain that no action of their bus driver proximately caused decedent’s death. These contentions are predicated on appellant’s assumption that deceased stepped off the sidewalk into a moving bus or other vehicle and that if the bus did strike him, there was no way the bus driver could have anticipated decedent’s act and prevented the accident. Whether appellant’s assumption was what in fact occurred was a question properly left for the jury to decide.

We dealt with a similar question involving the same ordinance in Gauchas v. CTA, supra. The ordinance there and in this case is Municipal Code of Chicago 1958, ch. 27, par. 276(c), which states in pertinent parts:

“The driver of a bus shall enter a bus stop or passenger loading zone on a public street in such manner that the bus when stopped to load or unload passengers shall be in a position with the right front wheel of such bus not further than eighteen inches from the curb and the bus approximately parallel to the curb so as not to unduly impede the movement of other vehicular traffic.”

See also Municipal Code of Chicago 1958, ch. 27, par. 276(b), which provides:

“The driver of a bus shall not stop such vehicle upon any street at any place for the purpose of loading or unloading passengers other than at a designated bus stop, bus stand, passenger loading zone, or bus terminal except in case of an emergency.”

In Gauchas we held, at page 403,

“* * * A violation of an ordinance enacted as a public safety measure is prima facie evidence of negligence and creates a cause of action if it is the proximate cause of injury. Kapka v. Urbaszewski, 47 Ill.App.2d 321, 198 N.E.2d 569; Bell v. Willoughby Tower Bldg. Corp., 46 Ill.App.2d 45, 196 N.E.2d 487. The evidence in behalf of the plaintiffs was that the bus driver did not comply with the ordinance in that he opened the door and waved for the plaintiffs to come in while the bus was ten feet or so from the curb. This evidence was sufficient to take the case to the jury. It was for the jury to decide whether the defendant was negligent, whether the ordinance was violated and, if so, whether either the negligence or the violation of the ordinance was the proximate cause of the plaintiff’s injuries.”

In the instant case plaintiff’s position is that decedent was let off the bus while the bus was stopped outside the area prescribed in the ordinance. Appellant does not deny that the bus stopped outside the area. Plaintiff then contended that the presence of snow on the curb prevented decedent from reaching the safety of the sidewalk causing him to walk alongside the bus where he was eventually struck by the bus as it pulled up to the bus stop. Whether this is what in fact occurred, whether it constituted negligence, whether the ordinance was violated, and whether the negligence or violation of the ordinance was the proximate cause of decedent’s death, were all questions properly left to the jury. (Gauchas, supra.)

Ill

Appellant also contends that the city ordinance is unconstitutional in that it attempts to regulate activity which has been pre-empted by the state legislature. Specifically, they contend that the Uniform Act Regulating Traffic on Highways (Ill. Rev. Stat. 1967, ch. 95%, par. 98 et seq.), now superseded by the Illinois Vehicle Code, pre-empted the powers of cities to regulate motor vehicle traffic except in specific instances.

Section 25 of the Act (Ill. Rev. Stat. 1967, ch. 9516, par. 122) provided that,

- “§ 25. Provisions of act uniform throughout state. The provisions of this Act shall be applicable and uniform throughout this State and in all political subdivisions and municipalities therein, and no local authority shall enact or enforce any ordinance rule or regulation in conflict with the provisions of this Act unless expressly authorized herein. Local authorities may, however, adopt additional traffic regulations which are not in conflict with the provisions of this Act, but such regulations shall not be effective until signs giving notice thereof are posted upon or at the entrances to the highway or part thereof affected as may be most appropriate.”

An express exception is section 26(a) (Ill. Rev. Stat. 1967, ch. 95%, par. 123(a) which provides,

“The provisions of this Act shall not be deemed to prevent local authorities with respect to streets and highways under their jurisdiction and within the reasonable exercise of the police power from:
(1) Regulating the standing or parking of vehicles.”

Appellant contends that the ordinance in question governs the loading and unloading of bus passengers and that it does not come within the exception which allows the City to regulate the standing and parking of motor vehicles. Therefore, appellant maintains that the City’s power to enact such an ordinance has been pre-empted by the State and the ordinance, therefore, is unconstitutional. We disagree.

Appellant’s argument was expressly rejected by this court in Watson v. Chicago Transit Authority (1973), 12 Ill.App.3d 684, 299 N.E.2d 58. We held there that the ordinance in question was properly authorized by the State. We said at page 689,

“The State may assume complete control over the regulation of streets and highways, thus depriving municipalities of any power or authority over them. (City of Rockford v. Floyd (1968), 104 Ill.App.2d 161, 243 N.E.2d 837.) However, our legislature has not chosen to do this. In Ill. Rev. Stat. 1965, ch. 24, par. 11 — 80— 2, it is provided that: ‘The corporate authorities of each municipality may regulate the use of the streets and other municipal property.’ Such power includes the right to impose reasonable conditions and restrictions in order to promote the general welfare and prevent accidents. (Yellow Cab Co. v. City of Chicago (1947), 396 Ill. 388, 71 N.E.2d 652.) The City of Chicago used this authority in enacting the ordinance, which has been treated . by this court as a public safety measure. (Gauchas v. Chicago Transit Authority (1965), 57 Ill.App.2d 396, 206 N.E.2d 752.) The provisions of the ordinance are not in conflict with State law and the City did not exceed its authority in adopting them.”

We also held in Watson that the CTA had notice of the ordinance since they had incorporated the portion relating to the distance a bus may stop from the curb into their own rules ■ (Chicago Transit Authority Rule 103(a)). In addition, we held that the posted sign requirement giving notice of an ordinance not enacted by the State posited by section 25 (Ill. Rev. Stat. 1967, ch. 95Y2, par. 122), was satisfied by the bus-stop sign. There is therefore no merit to appellant’s contention.

IV

Appellant’s last contention is that the jury’s verdict is against the manifest weight of the evidence. We disagree.

As we previously noted, the evidence supports the conclusion that deceased was a passenger on bus B and that he alighted from the bus when it stopped behind bus A. Further, the bus driver admitted that he stopped the bus outside the area permitted by the ordinance. There was conflicting evidence that deceased was unable to get to the sidewalk safely because of the existence of snow on the curb. There was additional evidénce that deceased was a man of careful habits. It is the function of the jury to weigh the evidence and determine the facts. They judge the credibility of the witnesses. Their findings in this case are supported by the evidence. We therefore hold that the jury’s verdict is not against the manifest weight of the evidence.

The judgment of the trial court is affirmed.

Since we affirm, we need not consider the plaintiffs cross-appeal.

Affirmed.

BURKE and GOLDBERG, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Carl Weathers, Defendant-Appellant.
    (No. 58493;
    First District (1st Division)
    November 4, 1974.

      Rehearing denied November 28, 1974.

      James J. Doherty, Public Defender, of Chicago (Gail Moreland and James N. Gramenos, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Edna Selan Epstein, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

Defendant was indicted for armed robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 2) and tried before a jury. He was convicted and sentenced to a term of from 3 to 9 years in the Illinois State Penitentiary., He appeals, asking that we reverse his conviction and remand the case for a new trial.

Four issues are presented: (1) whether the defendant was denied due process of law when the trial court denied his motion to suppress identification testimony (2) whether the trial court abused its discretion when it refused to permit the defendant to produce two witnesses at trial who would have testified favorably respecting his reputation in the community for truth and veracity; (3) whether the trial court erred when it issued a limiting instruction to the jury over defendant’s objection concerning testimony at trial respecting his involvement in another crime; and (4) whether the defendant was denied due process of law as the result of comments by the prosecutor in his closing argument to the jury. For reasons which follow, we affirm the conviction.

The victim of the armed robbery testified that the robber approached him on the street at night beneath a high-intensity illumination street lamp. The robber pulled out a gun and instructed the victim to part with the money in his wallet. The victim had ample opportunity to observe the robber closely and he subsequently provided police with the following description of him: male, black, slightly taller than 5 feet 8 inches, about 155 pounds, early twenties, moustache, and dressed in an army fatigue jacket with the hood pulled up around his head. Later that evening, the victim picked the defendant out of a lineup conducted at police headquarters consisting of four black males of approximately the same height, weight, build and age after each man was made to utter these words spoken by the robber: “Give me some bread, man.” In addition, an occurrence witness present near the scene of the crime, testified at trial that the same man who robbed the victim had first approached her on the street as she got out of her car. He brandished a gun and demanded that she give him her money. When she told him she had no •money, he turned and walked across the street toward the eventual victim. She too had ample opportunity to observe the culprit at close range under bright lighting and she too provided police with a detailed description. Further, she identified the defendant as the culprit shortly after the crime. Police had come to her home and requested that she accompany them to police headquarters for the purpose of making an identification. As she walked out to their car, she saw a man seated in the back seat of a nearby parked car. She promptly identified him as the culprit. The car was an unmarked squad car. At the motion to suppress identification testimony, she stated that she identified the man without prompting from police and that she did not see him in handcuffs.

Defendant was found by police a short distance from the scene of the crime within one-half hour after they received the armed robbery report. Defendant matched the description they had been given. They stopped and searched him, finding no money and no weapon.

Defendant took the stand at trial and denied committing the crime. He testified that he had been at the home of a friend when the crime was committed. The State produced the friend’s mother as a rebuttal witness and she denied that defendant was in her home at that time. Defendant was convicted and this appeal followed.

I

The first issue raised by defendant concerns whether the trial court erred when it denied his motion to suppress identification testimony by the victim of the armed robbery. Defendant argues that the testimony at trial should have been suppressed because it resulted from an unnecessarily suggestive lineup. He contends that the lineup was unnecessarily suggestive because he was the only one of the four men exhibited to the victim wearing an army fatigue jacket said to have been worn by the robber. Although we are mindful of the United States Supreme Court’s warning in U. S. v. Wade (1967), 388 U. S. 218, 18 L.Ed.2d 1149, 87 S.Ct. 1926, that there is an inherent danger of suggestibility in a lineup where a suspect is the only person exhibited to an identifying witness in “clothing which the culprit allegedly wore” (at 233), we nevertheless disagree for several reasons with the defendant’s argument.

Defendant has the burden of showing that the lineup was unnecessarily suggestive within the totality of the circumstances (Stovall v. Denno (1967), 388 U. S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; People v. Norfleet (1972), 4 Ill.App.3d 758, 764, 281 N.E.2d 761; People v. Tuttle (1972), 3 Ill.App.3d 326, 330, 278 N.E.2d 458) so as to give rise to a substantial likelihood of irreparable mistaken identification (People v. Johnson (1970), 45 Ill.2d 38, 45, 257 N.E 2d 3; People v. Jackson (1973), 12 Ill.App.3d 789, 793, 299 N.E.2d 142), and, in the event defendant should succeed in establishing that the lineup was invalid, then the identification in court may still be admissible provided that the State can show by clear and convincing evidence that the identification is based on an observation independent of the tainted lineup (People v. Fox (1971), 48 Ill.2d 239, 245, 269 N.E.2d 720; People v. Griffin (1973), 12 Ill.App.3d 193, 199, 297 N.E.2d 770). Of course, the nature of a lineup presupposes that there will be some differences in the persons exhibited to identifying witnesses. The crucial question so far as due process is concerned is where to draw the line between differences that are unnecessarily suggestive and those that are not. In the present case .the lineup consisted of' four, black males of approximately the. same height, weight, build and age. All were dressed in winter coats except that defendant’s was of the fatigue jacket variety. A similar argument to defendant’s was rejected by this court in People v. Wicks (1969), 115 Ill.App 2d 19, 24-25, 252 N.E.2d 698, where defendant was the only person exhibited wearing a black trenchcoat of the sort the culprit had been said to have worn (see also People v. Keane (1970), 127 Ill.App.2d 383, 390, 262 N.E.2d 364; and People v. Shaw (1972), 6 Ill.App.3d 366, 368-369, 286 N.E.2d 3). In Wicks the court concluded that the lineup was not unnecessarily suggestive. They added that they were “reinforced” (at 24) in reaching their decision because the identifying witness had denied that the trenchcoat formed the basis of his identification of the defendant. He had stated that his identification was based on a recognition of defendant’s voice. We are similarly reinforced in reaching our decision here that the lineup was not unnecessarily suggestive because of the identifying witness’ testimony that he identified defendant as the culprit after defendant uttered words at the lineup allegedly spoken by the culprit at the time of the armed robbery. Since identification by voice is a permissible means of identification (People v. Nelson (1970), 127 Ill.App.2d 238, 245, 262 N.E.2d 225), we conclude that the lineup identification was valid.

Second, we believe that the State met its burden of proving by clear and convincing evidence that the in-court identification was based on a source independent of the lineup. Indeed, the record shows that the identifying witness observed the culprit at close range for several minutes beneath a high-intensity street lamp. His description of tire culprit to police was unwavering in detail and his identification of the accused was positive. Therefore, we hold that the trial court properly denied defendant’s motion to suppress.

II

Defendant next contends that the trial court ■ abused its discretion when it refused to permit him to produce two witnesses at trial who would have testified favorably respecting his reputation for truth and veracity in the community. We disagree.

Evidence of a defendant’s reputation for truth and veracity is generally admissible in a criminal prosecution. To be admissible, however, such evidence must bear on some issue involved in the crime charged (People v. Jinkins (1967), 82 Ill.App.2d 150, 157, 225 N.E.2d 657). In a prosecution for armed robbery, evidence of a defendant’s reputation for truth and veracity is not relevant to the issue of guilt; therefore, it is not admissible (People v. Kendall (1934), 357 Ill. 448, 456-457, 192 N.E. 378; People v. Celmars (1928), 332 Ill. 113, 163 N.E. 421; People v. Redola (1921), 300 Ill. 392, 133 N.E. 292). We conclude that' the trial court properly refused to permit the testimony.

Defendant further contends, however, that the prosecutor reflected in liis closing argument to the jury that there was no basis for , their believing that the defendant was a leader in his community. Defendant contends that such commentary was improper since, he was not permitted to introduce evidence of his reputation. But defendant overlooks one rather significant point which, in our view, utterly destroys his argument. That point is that his own counsel told the jury in closing argument that defendant enjoyed a reputation as a leader in the community. In light of this point, the prosecutor’s comments were proper since he was merely commenting on defense counsel’s unsubstantiated remarks. Defendant cannot claim error when he induces it (People v. Stock (1974), 56 Ill.2d 461, 472, 309 N.E.2d 19; People v. George (1971), 49 Ill.2d 372, 379, 274 N.E.2d 26). We therefore "hold that there is no merit to this argument.

Ill

The third issue raised by defendant pertains to whether the trial court erred when it issued a limiting .instruction to the jury over defendant’s objection concerning testimony at trial respecting his involvement in another crime. Specifically, a witness testified that defendant had first' attempted to rob her, and, when she told him that she had no money, he walked away and approached the eventual victim of the crime. The following instruction was given to the jury concerning her testimony:

“Evidence has been received that the defendant has been involved in offense [sic] other than that charged in the indictment. This evidence has been received solely on the issue of' the defendant’s identification, presence, intent, motive and design. This evidence is to be considered by you only for the limited purpose for which "it was received.” (Emphasis ours.)

Defendant objected to this instruction arguing that the word “motive” should have been deleted from the second sentence. IPI— Criminal 3.14, from which this instruction was derived; suggests that each of the words “identification, presence, intent, motive, design and knowledge” appearing in the second sentence may be kept or deleted from the instruction given at trial depending on the issues in a given case'. Under the circumstances of this case, we think that “intent, motive, design and knowledge” should have been deleted because they are riot relevant to the issue at trial;' namely, whether' the defendant took property from another by threatening the use of force while aimed with a dangerous weapon (see Ill. Rev. Stat. 1971, ch. 38, pars. 18 — 1 and 18-— 2.) The words “identification” and “presence” are relevant (see People v. Jackson (1961), 22 Ill.2d 382, 390-391, 176 N.E.2d 803). Therefore, the trial court should have sustained the defendant’s objection. However, we do not believe that defendant was substantially prejudiced by the retention of the words since proof of the defendant’s guilt was overwhelmingly established beyond a reasonable doubt by the two eyewitnesses who identified him and by the refutation of his alibi. We cannot say that retention of the words prejudicially influenced the outcome of the trial or that the jury’s verdict could have been different had the words been deleted (People v. Clark (1972), 52 Ill.2d 374, 390, 288 N.E.2d 363; People v. Koshiol (1970), 45 Ill.2d 573, 580, 262 N.E.2d 446). We therefore decline to reverse on this ground.

IV

Defendant’s final contention is that he was denied due process of law by Assistant State’s Attorney Anthony Corsentino’s closing argument to the jury. The State agrees that the prosecutor’s argument was improper — they characterize his remarks as “infelicitous.” However, they maintain, and we agree, that reversal would be improper here because the defendant was not substantially prejudiced by the remarks (People v. Clark (1972), 52 Ill.2d 374, 390, 288 N.E.2d 363; People v. Nilsson (1970), 44 Ill.2d 244, 248, 255 N.E.2d 432, cert. denied, 398 U.S. 954, 90 S.Ct. 1881, 26 L.Ed.2d 296; People v. Arnold (1973), 12 Ill.App.3d 826, 832, 299 N.E.2d 446) since, as we previously indicated, proof of his guilt was overwhelmingly established beyond a reasonable doubt and it is extremely unlikely that the verdict could have been otherwise if the remarks had not been said (People v. Koshiol (1970), 45 Ill.2d 573, 580, 262 N.E.2d 446; People v. Nicholls (1969), 42 Ill.2d 91, 100, 245 N.E.2d 771; People v. Naujokas (1962), 25 Ill.2d 32, 38, 182 N.E.2d 700; People v. Ewell (1972), 5 Ill.App.3d 443, 449, 283 N.E.2d 497). Unlike People v. Weinstein (1966), 35 Ill.2d 467, 220 N.E.2d 432, relied on by defendant, where the court reversed the defendant’s conviction because the prosecutor repeatedly told the jury that defendant must establish her innocence beyond a reasonable doubt, this case is not a close one built on circumstantial evidence. Although the remarks were not substantially prejudicial, thereby preventing us from reversing and remanding this case for a new trial, we believe that they were in extremely bad taste and merit further discussion in light of recent developments of the law by our Supreme Court.

Five instances of error occurred. In the first, Mr. Corsentino stated to the jury that defendant was not required by law to present a defense because the State had the burden of proving him guilty beyond a reasonable doubt. There is nothing wrong with this statement, but he then proceeded to say that, since defendant did take the stand in his own behalf, he must have done so only because he and his attorneys knew that the State had successfully proven him guilty beyond a reasonable doubt. This was tantamount to telling the jury that defendants in criminal trials take the stand only because they know they will be found guilty by a jury if they do not. Such a statement places a defendant in the untenable position of being “damned if he does and damned if he doesn’t" take the stand since the statement implies that once a defendant takes the stand he has acknowledged that the State has proven its case and now he must overcome a presumption of guilt and prove his innocence. This is manifestly unfair to a defendant. It has long been the rule in Illinois,

“that a defendant is entitled to the benefit of the presumption of innocence through all steps of his trial, including the period during which the jury is considering all the evidence after receiving instructions by the court, and until the jurors determine from such evidence that guilt has been established * * *. (Flynn v. People, 222 Ill. 303; People v. Ambach, 247 Ill. 451; People v. Israel, 269 Ill. 284; People v. Bermingham, 301 Ill. 513.)” (People v. Long (1950), 407 Ill. 210, 213, 95 N.E.2d 461).

Therefore, the prosecutor’s comment was improper.

Second, Mr. Corsentino stated that defendant had lied in his testimony. This was improper since it was merely an expression of his opinion. The rule is that it is improper for the prosecutor to state his opinion respecting a defendant’s guilt unless he states, or it is apparent, that his opinion is based solely on the evidence (People v. Jackson (1966), 35 Ill.2d 162, 171, 220 N E.2d 229. c't'ng wihh approval People v. Williams (1962), 26 Ill.2d 190, 193, 186 N.E .2d 353). Such was not the case here.

In the third instance, Mr. Corsentino stated to the jury that defense counsel had lied to them and that counsel had tried to create a reasonable doubt in their minds respecting defendant’s guilt “by confusion, indecision, and misrepresentation.” These comments were improper. The rule in Illinois is that it is improper to argue to the jury that defense counsel resorted to trickery to free his client (People v. Savage (1934), 358 Ill. 518, 522, 193 N.E. 470; People v. Freedman (1954), 4 Ill.8d 414, 422, 123 N.E.2d 317; People v. Stewart (1973), 12 Ill.App.3d 226, 231, 297 N.E.2d 391). Such commentary serves only to arouse the passions of the jury against a defendant and his counsel. It does not serve the interests of justice.

Fourth, Mr. Corsentino stated that even the trial judge knew that the defendant was guilty. We note that there was prompt objection which was sustained by the trial court and the jury was ordered to disregard the comment. This remark by Mr. Corsentino was grossly improper.

In the fifth instance, Mr. Corsentino stated to the jury that; while defendant had no prior criminal record, this was only because he was a “pretty smart cookie” who never got caught before. This too was improper since the comment suggested that defendant was an habitual criminal. It is improper for a prosecutor to comment on prior unrelated convictions of an accused (People v. Scott (1968), 100 Ill.App.2d 473, 478-479, 241 N.E.2d 579). We think it is even more improper to suggest to the jury that a defendant is an habitual criminal where there is no evidence to support such a suggestion. Indeed, it is improper for the prosecutor to make statements to the jury concerning facts totally unsupported by the record (People v. Rothe (1934), 358 Ill. 52, 56, 192 N.E. 777; People v. Bitakis (1972), 8 Ill.App.3d 103, 108, 289 N.E.2d 256). Such statements serve only to arouse and inflame the jury’s passions against the defendant.

Each of the five remarks was grossly improper. We condemn them. Mr. Corsentino far exceeded the boundaries of permissible commentary. He would be well advised to remember that every defendant, regardless of the nature of the proof against him, is entitled to a fair trial (People v. Stock (1974), 56 Ill.2d 461, 472, 309 N.E.2d 19; People v. Savage (1934), 358 Ill. 518, 522, 193 N.E. 470). It is one thing for a prosecutor to get caught up in the heat of battle and make a mistake. It is quite another to repeatedly transgress the bounds of decency and fair play. The law expects more and indeed demands more from one who is trained in the law and who represents the People in a criminal prosecution. In People v. Butler (1974), 58 Ill.2d 45, 51-52, our supreme court has recently said:

“While we do not reverse the judgment in this case because of the erroneous cross-examination earlier discussed, we are seriously concerned with the frequently of similar conduct by both prosecution and defense counsel appearing in the transcripts of trial proceedings. While we are aware that there are many evi-dentiary questions of relevancy and propriety that are not clear-cut and that mistakes by counsel are inevitable, it would appear that the prosecution in this case deliberately engaged in improper questioning in regard to defendant’s living arrangements with women to whom he was not wed, the only apparent purpose of which was to establish, by impermissible methods, defendant’s bad moral character. Similar but perhaps more reprehensible conduct has appeared in other cases in which questions implying unfavorable conduct by a witness are asked by counsel who apparently have not a shred of evidence to suggest such conduct has actually occurred, but who inquire of the witness regarding it seemingly in the hope that the witness will be damaged in the eyes of the jurors. Such tactics have no place in the search for truth which is the objective of cross-examination and of the trial itself. While we are reluctant to reverse judgments where such improprieties seem not to have affected the verdicts, our prior criticisms seem to have had little effect so long as the judgments are not reversed. Consequently, we have concluded that disciplinary action against offending counsel may be the only effective deterrent. So that counsel may be forewarned, we here announce our intention, in reviewing future trials, to refer to the Disciplinary Commission for appropriate action those members of the bar responsible for conduct of the type herein referred to.” (Emphasis ours.)

Affirmed.

EGAN, P. J., and GOLDBERG, J., concur.


author: Mr. PRESIDING JUSTICE EGAN

text:
    Michael Mis, Plaintiff-Appellee, Cross-Appellant, v. Jean Mindykowski, Defendant-Appellant, Cross-Appellee.
    (No. 58642;
    First District (1st Division)
    November, 4, 1974.

      Rehearing denied December 17, 1974.

      Raymond I. Suekoff and Martin L. Silverman, both of Chicago (Sue-koff and Silverman, of counsel), for appellant.
    John C. Ambrose and Philip J. Schmidt, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiff, Michael Mis, filed a four-count complaint against the defendant, Jean Mindykowski. After a trial in which only the plaintiff and the defendant testified, the Court entered judgment for the defendant on Counts I and III and for the plaintiff on Count IV and fixed damages at $6500. The Court had previously struck Count II, which the plaintiff contends pleaded a resulting trust, at the close of the plaintiff’s case. The defendant appeals from the judgment in favor of the plaintiff on Count IV and the plaintiff appeals from the judgment in favor of the defendant on Counts I and III and the order striking Count II.

The plaintiff was a member of the Polish Army in exile and fought with the Allied Army in Belgium in World War II. In 1948, he was in a camp in England. Marie Zawada and her daughter, the defendant, were members of the Polish Womens Alliance. One of the objectives of the Alliance was to assist anti-Communist soldiers in the Polish Army to avoid repatriation to Poland. One method developed to achieve that objective was to arrange marriages between the soldiers and American widows. The plaintiff had corresponded with Marie Zawada since 1940, and they had discussed marriage. According to the defendant’s testimony, the widows were concerned about the effect of their marriage on their property rights and were assured by the Alliance that the men would have no claim on their property; this was part of the Alliance’s policy. Marie Zawada wrote to the plaintiff that he did not have to work and that she had a home; she sent him $50 a week from her savings. He was earning lVz shillings (30 cents) a day at the time. She came to England in 1948, and they were married in November. At the time of her marriage, she held title in her own name to a rooming house at 1910 North Sawyer in Chicago. She was making a living and saving money by operating the rooming house and buying and selling real estate. She also received Social Security.

When the plaintiff entered the United States, he did not work for the first 3 months. Shortly afterwards, he purchased an automobile for $2550. The plaintiff testified that his wife did not provide all of the money for him to buy the car and that he saved money in the army. He worked for one company for 4Vz years making $1.60 per hour. He went to work for another company, again making $1.60 per hour and worked for it for 20 years. At the time of trial he was still working for it. The record does not reflect how much he was receiving at the time of trial. He turned over all his paychecks to his wife, and she gave him an allowance for bus fare. His wife provided food and clothing and “all facilities of the house.”

In July, 1952, his wife purchased a residence at 2718 North Merrimac for $15,000. She used $10,000 that she took from her bank savings. The remaining $5000 was supplied by a mortgage which was signed by the plaintiff and his wife and the defendant and her husband. All of them were present at the closing, and the property was conveyed by the sellers to the defendant and her mother as joint tenants.

The plaintiff and his wife did not move into the Merrimac property until 2 or 3 years after its purchase. During that period of time the house was rented to the defendant’s daughter, and the plaintiff and his wife continued to reside at the Sawyer Avenue address. Later, the Sawyer Avenue property was sold, and the plaintiff and his wife lived in the Merrimac property for about 15 years until her death. The plaintiff did not give his wife any money for the purchase of the property. She paid all taxes. The final payment on the property was made in 1960, and the mortgage was released.

His wife died on November 12, 1968. The plaintiff vacated the Mer-rimac residence upon receipt of a notice to pay rent from the defendant’s lawyer. On February 27, 1969, the defendant conveyed the property to a land trust at Parkway Bank & Trust Company. This suit was filed in June, 1969.

The plaintiff advances three theories to support a finding that he should be declared owner of all or part of the property at 2718 North Merriamic: actual fraud, constructive fraud, and a resulting trust; and quasi contract or money had and received to support the judgment of $6500 in his favor.

The plaintiff testified through an interpreter that he signed the mortgage on the Merrimac property but did not remember where he signed it. He did remember going to the Northwestern Savings & Loan Association after he signed the document. When he signed it. no one talked to him about it; “they” told him to sign it, but “they” didn’t explain it. Either his wife or tire defendant told him to sign but didn’t tell him why he was to sign. He saw the defendant and her husband sign it, but he never talked to the defendant about the property. On cross-examination he testified that his wife told him to sign it; and when he signed it, she said, “It’s ours.”

The defendant testified that at the closing she was told by the real estate manager, the lawyer and her mother to tell the plaintiff in Polish the reason they needed his signature. Her mother had previously told her to ask Mr. Lambert, the real estate manager, why the plaintiff had to sign. Lambert told her that the plaintiff’s signature was required because an application for a mortgage was to be made. Her mother said, “Explain to him [the plaintiff] because he is going to think he owns this property.” The defendant then “just did the explaining as for the signature, why the signature was there.”

This testimony of the plaintiff and the defendant represents all the evidence pertinent to the question of actual fraud and, as is apparent, is completely devoid of proof of misrepresentation made to the plaintiff.

As to constructive fraud, the plaintiff did not plead it. In Count I the plaintiff maintained that “he was assured that a new home was jointly purchased with his wife, Mary”; “that the defendant well knew that plaintiff relied on representations that he was a co-owner of this residence with his wife, Mary” (emphasis added); that a confidential relationship existed between the defendant and her mother and “through her control of her mother the defendant, Jean Mindykowski, procured the conveyance of this residence as joint tenant with intent to defraud plaintiff.” Count III alleges that the defendant conspired with the plaintiff’s wife to defraud and deprive the plaintiff of his interest in the property.

Proof without pleadings is as defective as pleadings without proof (Burke v. Burke, 12 Ill.2d 483, 487, 147 N.E.2d 373); and although the plaintiff argued constructive fraud in the trial court, the record does not show any waiver by the conduct of the defendant. (Cf. Hemingway v. Skinner Engineering Co., 117 Ill.App.2d 452, 254 N.E.2d 133.) Moreover, we judge that the trial court concluded that the evidence failed to support a finding of constructive fraud of the marital rights of the defendant. We see no reason to conclude otherwise. The evidence fails to establish a fiduciary relationship between the defendant and her mother or between the defendant and the plaintiff, a breach of any fiduciary relationship, that anyone “assured” the plaintiff that a new home was jointly purchased for him and his wife, or that his wife and the defendant conspired to defraud him. The cases cited by the plaintiff are factually in-apposite:' Montgomery v. Michaels, 54 Ill.2d 532, 301 N.E.2d 465; Stoxen v. Stoxen, 6 Ill.App.3d 445, 285 N.E.2d 198; Wennerholm v. Wennerholm, 382 Ill. 254, 46 N.E.2d 939; Smith v. Northern Trust Co., 322 Ill.App. 168, 54 N.E.2d 75.

A resulting trust comes into existence when one person furnishes the consideration for the purchase of property while the conveyance is taken in the name of another person. (Janes v. First Federal Saving & Loan Ass’n, 11 Ill.App.3d 631, 638, 297 N.E.2d 255.) It is created by operation of law the instant legal title is taken, based upon a presumed intent of the parties. (Kane v. Johnson, 397 Ill. 112, 73 N.E.2d 321.) The burden of proof is upon the party seeking to establish the trust, and the evidence must be clear and convincing (Scanlon v. Scanlon, 6 Ill.2d 224, 127 N.E.2d 435). The record clearly shows that the $10,000 down payment was made from the funds of the plaintiff’s wife. Subsequently, his wife made the payments of $52 per month. She was of some financial substance at the time of their marriage. She bought him a car (or, at least, contributed the major portion of the purchase price) for $2550 shortly after he arrived in this country. She bought and sold property and operated a rooming house. The defendant testified that her mother was able to live off her interest. She was able to buy the Merrimac property while retaining the property on Sawyer, which belonged to her alone at the time of the marriage. Some years later she moved into the Merrimac property and sold the Sawyer property. The proceeds of that sale clearly belonged to her alone since she owned the property in fee simple long before her marriage. It is not unreasonable to assume that if she was able to make, payments of $50 a week to the plaintiff while he was in England, she was also able to make payments of $52 per month out of her own funds. The plaintiff in no way has proved that his money was used to pay off the mortgage.

Where a parent purchases property in the name of a child, there exists a presumption that the property was transferred to the child as a gift. (Moore v. Moore, 9 Ill.2d 556, 138 N.E.2d 562.) No evidence has been introduced to rebut that presumption. That being so, the plaintiff’s wife had an absolute right to dispose of her property during her lifetime, and the deprivation of any expectation on the part of the plaintiff by a gift to the defendant is not vulnerable to attack unless the transaction is a sham, colorable or illusory and tantamount to fraud. (Johnson v. Johnson, 11 Ill.App.3d 681, 684, 297 N.E.2d 285.) As previously noted, there is no evidence of fraud. We conclude, therefore, that the plaintiff has failed to provide any evidence to support a finding of a resulting trust.

Count IV, which apparently was the basis of the trial court’s judgment of $6500 in favor of the plaintiff, alleged that since the marriage the plaintiff had been the only person employed in the family; that all funds earned by him were turned over to his wife to be used and managed for the mutual benefit of the parties; that the plaintiff and his wife “lived frugally, intending to save substantial portions of his earnings to insure worry-free life after retirement”; that after the death of his wife the plaint'ff found that “the funds that he was turning over to his wife throughout their life together were either deposited in joint bank accounts established by his wife for others, or were dissipated by conditional gifts or pseudo-loans”; that the plaintiff on information and belief stated that one of the persons who had received plaintiff’s funds was the defendant; and that the making of the loans, the giving of gifts and the establishment of the joint bank accounts was a fraud on the rights of the plaintiff.

Count IV, as is apparent, is also based on fraud, and the fraud as alleged could only have been committed by the plaintiff’s wife. There is no evidence .to support such a finding, nor, for that matter, fraud on anyone’s part. Assuming, however, for the sake of argument that the defendant had properly pleaded an action for money had and received, we would still be required to hold that he had not proved it. The nature of the action has been described by the case cited by the plaintiff, Beatrice Foods Co. v. Gallagher, 47 Ill.App.2d 9, 25-26, 197 N.E.2d 274:

“The liability in quasi contract exists from an implication of law that arises from the facts and circumstances independent of agreement or presumed intention. In implied contracts the agreement defines the duty. In quasi contracts the duty defines the contract. At common law an action of assumpsit, under the common counts for money had and received, is an appropriate remedy to enforce the equitable obligation arising from the receipt of money by one person which belongs to another and which in equity and justice should be returned. The action is in form ex contractu. The right to recover is governed by principles of equity although the action is at law. It is maintainable in all cases where one person has received money or its equivalent under such circumstances that in equity and good conscience he ought not to retain it and which ex aequo et bono belongs to another.” (Emphasis added.)

The plaintiff, then, had the burden of proving that the defendant was retaining money which properly belonged to the plaintiff. If the plaintiff’s position is correct, then his wife retained money which belonged to him. Could the plaintiff have maintained an action against his wife to recover the money he turned over to her? Obviously not. He never established how much he paid. He was subject to the obligation to provide for his wife. There is no proof that his wife had any surplus left from the amount he paid after paying normal household bills. For that matter, there is no showing that the amount he paid was sufficient to pay all household bills. That she had a substantial sum of money before her marriage and income, including Social Security payments, cannot be ignored. The defendant and her mother had a joint account with $20,000 in it; and the account had been in existence from 1943, 5 years before the marriage. There was another joint account in the name of the plaintiff’s wife and the defendant’s daughter. The amount in that account was never established. There is absolutely no evidence to support the allegation of the complaint that “the funds that [the plaintiff] was turning over to his wife throughout their life together were either deposited in joint bank accounts established by his wife for others or were dissipated by conditional gifts or pseudo-loans.” In short, the plaintiff has failed to establish any right to recover for monies had and received.

For these reasons the judgments in favor of the defendant on Counts I, II, and III are affirmed; and the judgment in favor of the plaintiff and against the defendant on Count IV is reversed.

Judgment affirmed in part and reversed in part.

BURKE and GOLDBERG, JJ., concur.


author: Mr. JUSTICE BURKE

text:
      In re Application of County Collector of Cook County, for Judgment and Order of Sale Against Certain Real Estate-(Daniel Goldman, Lawrence Fischer, and M. I. G. Corporation, Defendants-Appellants).
    (Nos. 58709, 58710 cons.;
    First District (1st Division)
    November 4, 1974.

      Rehearing denied November 26, 1974.

      Melvin L. Klafter, of Nathan & Klafter, and Anna R. Lavin, both of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner and Henry A. Hauser, Assistant State’s Attorneys, of counsel), for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

Applications were made by the county collector of Cook County (hereinafter “County”) for judgments fixing the correct amount of real estate tax for the year 1970 which had been paid under protest by the defendants, Daniel Goldman and Lawrence Fischer, in one case and the M. I. G. Corporation in another case. These two cases were consolidated for purposes of appeal. The defendants (hereinafter “objectors”), Goldman and Fischer, filed Objection Number 4, and M. I. G. Corporation filed Objection Number 5. In both cases the court, sitting without a jury, found that the County’s assessment of the value of the properties was so excessive that it constituted constructive fraud. However, the court also found in both cases that the objectors had only protested 6 percent of the tax at the time of payment and were therefore limited to a recovery of only 6 percent of the total, regardless of the amount of actual over-assessment. The objectors appeal the portion of the final judgment which limits their recovery to 6 percent of all taxes paid.

When a county makes an application to the circuit court to fix the correct amount of real estate taxes paid, the interested taxpayers in question may raise defenses or objections to the county’s determination. However, section 235 of the Revenue Act of 1939 (Ill. Rev. Stat. 1969, ch. 120, par. 716) specifies that these objections may only be raised as to amounts which were paid under protest pursuant to the provisions of section 194 of the Revenue Act of 1939. (Ill. Rev. Stat. 1969, ch. 120, par. 675.) Proof of compliance with section 194, concerning payment of taxes under protest, is a mandatory prerequisite to entering an objection to the amount of real estate taxes in a section 235 proceeding. People ex rel. Darr v. Alton R.R. Co., 380 Ill. 380, 43 N.E.2d 964; People ex rel. Anderson v. Chicago & E. I. R.R. Co., 399 Ill. 520, 78 N.E.2d 265; People ex rel. Baird & Warner, Inc. v. Lindheimer, 370 Ill. 424, 19 N.E.2d 336.

Section 194 provides that if a person desires to object pursuant to section 235 to all or any part of his real property taxes he must pay the taxes due and accompany the payment “by a writing substantially in the following form:

Payment under protest.
Vol. No.........Item No.........
(as the same appear on the General Tax Bill).
Original amount of tax $.......Amount of payment $..........
This payment shall be applied to the taxes of all taxing bodies ratably, subject to refund of .... % of the tax, which is objected to on the ground (here set forth ground of objection) and is, accordingly, made under protest.” Ill. Rev. Stat. 1969, ch. 120, par. 675.

Both objectors contend that in the notices of protest they submitted they had protested the entire amount of the assessed value and not merely 6 percent as the lower court found. The objectors argue, therefore, they should have been entitled to a refund of the entire amount of overassessment and should not be limited to only six percent of the total. The sole issue in this case is whether the-protest forms submitted, by the objectors did effectively protest the entire amount of assessed" value in accordance, with section 194. The relevant wording of the protest forms of both of the objectors is identical and therefore we set forth only one of the forms below:

“PAYMENT OF 1970 REAL ESTATE TAXES UNDER PROTEST
Pursuant to Section 194 of the Revenue Act of 1939, as amended, payment is herewith made under protest of the amount indicated below on the 1970 general taxes extended against the real estate described in the schedule of Volume and property numbers of property cards for the year 1970 appearing below or attached hereto and made a part hereof.
This payment shall be applied to the taxes of all taxing bodies ratably subject to a refund of 6% of the entire tax which is objected to on the ground of the illegality of the multiplier in determining the equalized valuation and that the taxes of the various taxing bodies making up the 1970 assessment are excessive, illegal, fraudulent and void (expressed in terms of dollars on each $100.00
of full valuation) as follows:
County of Cook..................................$0.04
Forest Preserve District of Cook County............. 0.02
Sanitary District of Chicago....................... 0.03
City of Chicago.................................. 0.04
Board of Education of the City of Chicago........... 0.04
Chicago Park District............................. 0.02
This payment is accordingly made under protest and subject to a refund as to illegal, excessive and fraudulent rates and assessed value.”

The second paragraph of the objectors’ protest form is set forth in a manner substantially similar to the format provided in section 194 heretofore quoted. The only amount protested in this paragraph is 6 percent of the entire tax objected to. on the ground that the multiplier used by the County was illegal. The court below held that this was the only amount protested. The third paragraph, however, said “This payment is accordingly made under protest and subject to a refund as to. illegal, excessive and fraudulent rates and assessed value.” (Emphasis added.) This paragraph, the objectors contend, was intended to protest the entire assessed value.

Section 194 does not require that the notice of protest be in the exact form which the statute delineates. The statute uses the words “in substantially the following form.” This allows the objector to vary this form as long as his notice of protest contains all the essential requirements of the section 194 form. (People ex rel. Darr v. Alton R.R. Co., 380 Ill. 380, 43 N.E.2d 964.) The court in the Darr case held that not stating the volume number and item number shown on the general tax biH and merely using the words “excessive, Hlegal and void” as the taxpayer’s grounds of objection were not fatal to the taxpayer’s protest. The court held that the grounds for an objection could be stated in general terms and the notice of protest was in substantial compliance with the statute. A notice of protest which enables the coHector to ascertain the amount and origin of the protested tax and the grounds for that protest complies with section 194. See People ex rel. Wisdom v. Chicago, B. & Q. R.R. Co., 32 Ill.2d 434, 206 N.E.2d 702.

In the present case, the objectors stated the volume numbers, item numbers and amounts paid on each item protested in a list below the paragraphs we have quoted. The third paragraph set forth that the payment of those taxes was paid under protest and subject to refund as to their “illegal, excessive and fraudulent rates and assessed value.” (Emphasis added.) This paragraph clearly raised an objection to the values at which the properties were assessed. The exact amount the properties were overassessed is not stated. Absent any statement of the exact amount of overassessment, one can only interpret this paragraph to be an objection to the entire amount of the assessed value. This is precisely what the objectors contend. Although the taxpayers could have been more specific in their protest, we feel there was sufficient information in the notice of protest to enable the coHector to ascertain the grounds and amount and origin of the tax protested.

The County contends that People ex rel. Kohorst v. Gulf M. & O. R.R. Co., 22 Ill.2d 104, 174 N.E.2d 182, and People ex rel. Hillison v. Chicago, B. & Q. R.R. Co., 22 Ill.2d 88, 174 N.E.2d 175, require a different decision. It is true that Kohorst and Hillison stand for the proposition that the taxpayers’ recoveries are limited by the amount of taxes they protest. Nowhere in these cases, however, is it decided that a specific percentage of the taxes must be set forth or that objecting to “excessive assessed value” does not effectively place the entire assessment under protest.

The County furthermore contends that to hold that the objectors in this case are in substantial compliance with section 194 would make it impossible for the county collector to carry out his duties. They note that section 194 provides that the coHector “may withhold from distribution the amounts paid under protest of 1% of the total taxes collected, whichever is less.” The County argues that the coHector, therefore, must have a way of ascertaining the exact amount of taxes protested in order to determine whether the total amount of taxes protested is less than 1 percent of the total taxes collected. The County contends that taxpayers who merely say that the assessed value was excessive without specifying the exact amount the properties were overassessed would defeat this purpose.

We are of the opinion that there is nothing in section 194 which prohibits a taxpayer from protesting the entire amount of the tax or the entire assessed value. The one percent holdback provision of section 194 is not mandatory but merely optional as the word “may” implies. Furthermore, it has been held that section 194 was not an attempt by the General Assembly to insure that there would be sufficient funds on hand to pay all the refunds. (People ex rel. Brenza v. Edwards, 413 Ill. 514, 109 N.E.2d 754.) The rationale for the strict interpretation of section 194 put forward by tire County is further negated by the practices actually followed in Cook County. In a letter addressed to the lower court by the county treasurer of Cook County, the county treasurer stated that he was not “concerned with, nor does he take cognizance of, any percentage limitation set forth in any protest’ made of tax rates or assessed valuations paid under protest.” The letter said the treasurer automatically set aside one percent of all taxes collected each year as a reserve fund regardless of the amount of taxes protested in that year.

The County contends this letter may not be taken into consideration by this court because it was never offered in evidence at the trial level and hence is not part of the record.

The treasurer’s letter was attached to the objectors’ motions to modify the trial comt’s decisions. The motions recite that this letter was not offered by the objectors until that stage of the trial court proceedings because the issue concerning whether the notices of protest conformed to section 194 had not arisen until the trial court’s judgment was handed down. The County’s answer to the objectors’ motions, which recognized the letter’s existence, did not attack the letter’s veracity nor object to the trial court’s consideration of it. The County’s answer only contended the letter was irrelevant. The trial court’s order, denying the objectors’ motions to modify the judgment, not only said that the court had taken all exhibits attached to the objectors’ motions into consideration, but also stated it was incorporating all of those documents into its order by reference.

It is true that on appeal a reviewing court is limited to the record of the trial court. (People ex rel. Coats v. Sain, 24 Ill.2d 248, 181 N.E.2d 179; Atkins v. Atkins, 393 Ill. 202, 65 N.E.2d 801.) However, Supreme Court Rule 321 states that the trial court record includes not only the report of the proceedings below, but also “every other document filed and judgment and order entered in the cause.” (Ill. Rev. Stat. 1973, ch. 110A, par. 321.) The letter in question had been attached to a motion filed in this case and incorporated by the trial court in its judgment order. Furthermore, motions or affidavits which a trial court has specifically said were before the court and considered by that court in a ruling it made are part of the record. (Bellinger v. Barnes, 223 Ill. 121, 79 N.E. 11; Gore v. National Association of Certified Public Accountants, 231 Ill.App. 38.) Although the letter is not essential to our decision in this case, we feel it is proper to consider it.

We are of the opinion that the objectors have substantially complied with section 194 in protesting the entire assessed values of the properties in question. It is therefore not proper to limit their recovery to 6 percent of the taxes paid. The trial court should have allowed a refund of that portion of the objectors’ 1970 real estate taxes which was the result of the overassessed value of the properties.

The judgment is reversed and the cause remanded with directions to recompute the amounts of refund on the basis of the corrected assessed valuations without regard to any 6-percent limitation.

Judgment reversed and cause remanded with directions.

GOLDBERG and HALLETT, JJ., concur.