text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Otis Hendrix (Impleaded), Defendant-Appellant.
    (No. 58151;
    First District (3rd Division)
    March 21, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant Otis Hendrix was indicted with Charles Kimbrough for armed robbery. After a bench trial, both Otis Hendrix and Charles Kimbrough were .found guilty as charged. The court granted the motion of Charles Kimbrough for a new trial and Charles Kimbrough was acquitted after an immediate retrial upon stipulated evidence. The motion of Otis Hendrix for a new trial was denied. Otis Hendrix has appealed.

The question presented for review is whether defendant is legally accountable for the armed robbery.

We affirm.

The facts are as follows. At about 10:30 P.M. on January 24, 1970, a Kentucky Fried Chicken store located at 15636 South Dixie Highway in Markham, Illinois, was robbed by two armed men. Bruce Terry, the store manager, armed himself with a pistol and chased the robbers into an alley behind the store. He ordered the robbers to stop but they proceeded to enter a car waiting in the alley. At this time Mr. Terry observed a third man behind the wheel.

Mr. Terry observed the cars wheels spinning in the gravel in the aUey. He shot at the car and chased it to the comer of 157th Street and Dixie Highway where it stopped at a stop sign. After Terry fired the gun again the driver of the car turned around enabling Terry to see his face. At trial Terry identified the driver as the defendant Otis Hendrix. After the car proceeded across the intersection, Terry flagged down a squad car, occupied by Officer Schultz of the Markham, Illinois Police Department. While he was in the squad car Terry observed the defendant on a side street, but only later reafized who it was. The abandoned car, which was used in the robbery, was found in the vicinity. It belonged to Frank Baxter, a brother-in-law of defendant.

Otis Hendrix testified at trial that at about 7 P.M. on January 24, 1970, two acquaintances, Maurice Dean and Charles Kimbrough, visited him at his home. Defendant’s wife earfier had gone to a birthday party at her sister’s house. At about 10 P.M. Kimbrough suggested that defendant borrow a car from defendant’s brother-in-law, Frank Baxter, in order to take Kimbrough and Dean to the house of Kimbrough’s brother (Snooky). Defendant testified that he did not feel like going so he tried to arrange for Frank Baxter to take them. Defendant and the two men walked to the house of defendant’s sister-in-law to make the request of Baxter. However, Baxter’s wife would not allow Baxter to leave the house, so defendant borrowed Baxter’s car in order to drive them himself.

Defendant further testified that Kimbrough suggested that they stop at the Kentucky Fried Chicken store because Kimbrough and Dean were hungry. When they arrived at the store, Kimbrough directed defendant to park the car in the alley behind the store so that they would have “a straight side to Snooky’s house”. Defendant remained in the car while the other two men went into the store. Defendant could not see the store from where he parked in the alley because a fence obstructed his vision. He turned off the engine whüe he was waiting.

When the two men returned to the car they told defendant to take off because they had just robbed the store. Defendant heard a shot come through the rear windshield, started the car, and proceeded in the aHey. After driving a few blocks, defendant drove the car into a snow bank in a vacant lot. The men abandoned the car and walked two blocks to Snooky’s house. From the house defendant telephoned his wife and a taxi company. He took a taxi to the house of his sister-in-law. There he explained to his wife what had happened.

Defendant and a group of people went to the police station. Defendant saw Frank Baxter there. Defendant explained his story about the robbery and gave a description of the other two men to the police. He denied that the two men told him that they intended to rob the store.

On cross-examination, defendant testified that he had known Dean for about 9 months and Kimbrough for about 2 years. He was not expecting Kimbrough and Dean at his house on the evening in question. Defendant knew that they had come from Chicago but was ignorant of the means by which they were transported. The record is unclear as to whether they drove a car to Hendrix’ house and if so, as to whether they parked the car in front. Defendant maintained that he did not see .Kimbrough or Dean with guns after the robbery occurred and did not know that they had guns when they were at his residence.

On redirect examination defendant explained that he did not park in the store parking lot because it had not been plowed of snow. He testified that the alley had been plowed. Bruce Terry, the store manager, and Officer Schultz of the Markham Police Department who investigated the armed robbery, both testified that the parking lot was clear of snow on the night in question.

Officer Hunt of the Markham Police Department testified that he observed defendant come into the police station with Frank Baxter. Hunt stated that defendant told him that he had borrowed Baxter’s car, but that “the car had been stolen from him from a party in Dixmoor”. At trial defendant denied that he said this. At the police station Bruce Terry caught a glimpse of defendant and told Hunt that he was positive that defendant was driving the getaway car. Defendant was then arrested and given his constitutional rights. After his arrest, defendant told Hunt that he had been driving Baxter’s car and that the other two men had committed a robbery. He also told Hunt that he did not know that they were going to commit a robbery. Defendant came to the station voluntarily and at that point was not under arrest.

The trial court found the defendant legally accountable for the armed robbery.

Defendant contends that his involvement in the episode is consistent with his innocence. He argues that his actions were insufficient to render him criminally responsible for the acts of his companions.

In the instant case, as was the case in People v. Richardson, 132 Ill.App.2d 712, 270 N.E.2d 568, cited by the prosecution, there is no dispute that a robbery was committed by defendant’s companions and that the defendant drove the getaway car from the scene. In that case, the court stated: “If he knowingly drove a ‘getaway car’, then he is legally responsible as a principal.” 132 Ill.App.2d 712, 714, 270 N.E.2d 568, 570.

Defendant was tried and convicted on a theory of accountability. (Ill. Rev. Stat. 1969, ch. 38, sec. 5—2(c).) The prosecution has the burden of proving beyond a reasonable doubt that defendant was a knowing participant in the armed robbery. The circumstances of defendant’s involvement in the crime are relevant in determining his state of mind. Mere presence at the scene would not be enough to establish guilt. (People v. Clark, 30 Ill.2d 67, 195 N.E.2d 157.) In the instant case there were other factors bearing on defendant’s guilt. The evidence showed that defendant drove the robbers to the scene of the crime. He parked suspiciously behind a fence in the alley while his companions robbed the adjacent store. He fled with the robbers and did not express any disapproval or opposition to the commission of the crime. These are factors which tend to establish defendant’s knowledge of the armed robbery. See People v. Barnes, 2 Ill.App.3d 461, 276 N.E.2d 509; People v. Bleimehl, 9 Ill.App.3d 273, 292 N.E.2d 60; People v. Sanders, 129 Ill.App.2d 444, 263 N.E.2d 615.

Defendant presented evidence showing that a reasonable explanation of his actions existed which was consistent with an innocent state of mind. His case was aimed at negating the inference of guilt which flowed from his actions before, during, and after the holdup. The prosecution presented opposing evidence. The matter became one of credibility, an area in which the trial judge, as trier of fact, was better suited to make a determination than this court, reviewing the record on appeal. (People v. Clark, 30 Ill.2d 67, 195 N.E.2d 157.) On the instant record, the trial court could well have found that the evidence sufficiently established that defendant knowingly participated in the armed robbery and that defendant had not established a reasonable hypothesis which was consistent with innocence. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE McNAMARA

license: Public Domain

text:
    Richard C. Berglund, Plaintiff-Appellee, v. Roosevelt University, Defendant-Appellant.
    (No. 58328;
    First District (3rd Division)
    March 21, 1974.
    Robert J. Gorman, of Chicago, for appellant.
    William Parker Ward, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Richard C. Berglund, filed suit in the circuit court of Cook County seeking damages in the amount of $3,819.75 against defendant, Roosevelt University, for the loss of plaintiff’s photographic equipment stored on defendant’s premises. The action was grounded on two separate legal theories, breach of an implied bailment contract and negligence. After a bench trial, the trial court, apparently relying on the theory of implied bailment, entered judgment for the plaintiff in the amount of $1,789.15, from which defendant appeals. Plaintiff has filed a cross-appeal, contending that the damages awarded were inadequate.

In the fall of 1971, plaintiff was a full-time student at Roosevelt and also served as a photographer and editor of the student newspaper. Besides expending money for plaintiff’s salary and the paper’s printing and operating expenses, defendant furnished the paper with an office and photographic space, including photo developing equipment for the darkroom. The Roosevelt building housed the paper’s editorial office on the fourth floor and the business manager’s office and photo darkroom on the seventh floor. In order to reach the darkroom, one had to enter a door leading from the hall corridor to the business manager’s office, pass through that office, and enter a second door leading into the darkroom. The school had adopted a master-lock system with special keys unable to be duplicated by ordinary locksmiths.

An unlocked, wooden, four-drawer, filing cabinet was in the darkroom. Plaintiff testified that, as had his predecessors on the paper, he used one of the cabinet drawers to store his personal camera equipment. Plaintiff did not request or obtain permission from anyone connected with the defendant’s administration to store his camera equipment in the darkroom or in the cabinet. Although the security director testified that it was normal practice for a student who wished to bring personal property on the premises to obtain permission from the security director’s or comptroller’s office, plaintiff made no such request. Plaintiff testified that he had utilized some of the stored equipment for activities unrelated to his duties as the paper’s photographer and that some of the materials stored were for his own use.

Plaintiff testified that he locked the darkroom door at 10:30 P.M., Friday, October 29, 1971. When he returned to the room on the following Monday morning, he discovered his camera equipment missing.

Testimony was adduced concerning defendant’s security measures used to safeguard its approximately 7,000 students and 130 to 200 rooms. The defendant maintains security guards at the entrances to the building, with one guard patrolling the corridors. Late in the evening the guards lock the street doors and see to it that everyone is sent outside. After the guards leave, the 28-member cleaning staff acts as a security force. No one is ever permitted to remove property from the building without a written pass. Everyone associated with the school carries an identification card. Plaintiff characterized the security force as being composed of obese middle-agers who were rarely observed outside the lobby of the building. Many thefts had occurred in tire building. Plaintiff was aware that a theft had occurred in the business managers office only a few weeks before the instant theft.

At the close of all the testimony the trial court found that a bailment relationship had existed between the plaintiff as bailor and defendant as bailee. In entering judgment for the plaintiff, the court implicitly found that the defendant had been negligent and had breached the bailment contract. The trial judge entered judgment for an amount less than that sought by plaintiff because he believed that not all of the camera equipment stored by plaintiff related to his duties as the school paper’s photographer.

Before considering the issue of whether plaintiff established the existence of a bailment relationship between himself and the defendant, we note that the trial court did not specify whether it perceived the plaintiff as having acted in the capacity of student or employee. Although plaintiff appears to emphasize his status as a student rather than employee, we do not believe that an exact determination of his status is helpful or necessary in deciding the existence of a bailment relationship. Under proper circumstances, such a relationship can be established between a student and school and betweeen an employee and employer. We need only decide whether a bailment relationship was established under the facts and circumstances of the present case.

Bailment is defined as the rightful possession of goods by one who is not an owner. The characteristics common to every bailment are the intent to create a bailment, delivery of possession of the bailed items, and the acceptance of the items by the bailee. (Wall v. Airport Parking Co. (1967), 88 Ill.App.2d 108, 232 N.E.2d 38.) A bailment can be established by express contract or by implication, with the latter designated as implied-in-fact or implied-in-Iaw. (Chesterfield Sewer & Water v. Citizens Insurance Co. (1965), 57 Ill.App.2d 90, 207 N.E.2d 84.) In determining the existence of an implied-in-fact bailment, one must analyze the facts surrounding the transaction, such as the benefits to be received by the parties, their intentions, the kind of property involved, and the opportunity of each to exercise control over the property. Wall v. Airport Parking Co. (1969), 41 Ill.2d 508, 244 N.E.2d 190.

In the present case, plaintiff attempted to show that an implied-in-fact bailment had arisen between the parties. It is clear, however, that the failure of the plaintiff to prove any knowledge on the part of the defendant of the storage of the items doomed this attempt.

Knowledge on the part of the bailee is essential to prove proper delivery and acceptance. Physical control over the property allegedly bailed and an intention to exercise that control are needed to show that one is in possession of the bailed item. (Smith, C. & Boyer, R., Survey of the Law of Property, ch. 29, p. 462 (2d ed., 1971).) And before acceptance can be inferred on the part of the alleged bailee of the goods purportedly bailed, there must be evidence to show notice or knowledge on the part of the bailee that the goods are in fact in his possession. (See T. R. Booth & Co. v. Loy (1968), 100 Ill.App.2d 333, 241 N.E.2d 315; 4 Williston, Contracts § 1038A, pp. 2900-2902 (rev. ed., 1936).) Yet in the present case defendant’s consistent denial of having any knowledge that plaintiff had stored his camera equipment on the premises is supported by plaintiff’s own testimony. Although normal procedure required plaintiff to seek permission of certain agents of defendant to store his property on the premises, plaintiff never bothered to do so. The record also fails to disclose any evidence by which knowledge could be imputed to any of defendant’s agents. Miss Elaine Davis, defendant’s student activities coordinator, had occasional conversations with plaintiff. She also observed him on occasion at school functions while he was performing his photographic duties, and once admired his cameras. Certainly these facts fail to impute the necessary knowledge to Miss Davis or to defendant. Nor does the fact that prior student paper photographers may have similarly stored their equipment in the darkroom, without more, prove knowledge on the part of defendant. The record also reveals that defendant’s security officers never exercised any degree of intentional control over plaintiff’s goods. We conclude that plaintiff’s failure to prove knowledge on the part of defendant of the goods stored resulted in his inability to prove a valid delivery of the camera equipment and a true acceptance of the goods by defendant. The trial court erred in holding to the contrary. Our holding on this issue obviates the necessity of considering whether defendant was negligent in its capacity as bailee.

The second count of plaintiff’s complaint sounded in tort for negligence, whether or not a bailment relationship existed. However, this count is essentially bottomed upon the first count. Having failed to prove that the defendant had any knowledge of plaintiff’s storage of the camera equipment, plaintiff can point to no duty owed to him by the defendant. The second count cannot support a judgment.

In view of our holding, it is unnecessary to consider plaintiff’s argument that the damages awarded were inadequate.

For the reasons stated, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

DEMPSEY and MEJDA, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Versie Gilmore, Defendant-Appellant.
    (No. 58610;
    First District (3rd Division)
    March 21, 1974.
    MEJDA, J., took no part.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Peter Poltrock, Defendant-Appellant.
    (Nos. 58663-5 cons.;
    First District (3rd Division)
    March 21, 1974.
    William D. Klink and Val R. Klink, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and John Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Michael Poltrock was convicted in a trial without a jury of three charges of battery (Ill. Rev. Stat. 1969, ch. 38, par. 12—3), and was sentenced to serve three concurrent 30-day terms in the House of Correction.

Poltrock contends that the judgment should be reversed because the evidence did not establish his guilt beyond a reasonable doubt, and that his prosecution as an adult pursuant to classification by the Juvenile Court Act then in effect (Ill. Rev. Stat. 1969, ch. 37, par. 702—2), denied his constitutional right to the equal protection of the law. Because of our disposition of his first contention, it is not necessary to address his second.

The battery charges were the outgrowth of an altercation among five youths on August 1, 1971. The complainants, Peter Berg, Robert Rucker and Rick Hansen were on one side, and Poltrock and a friend of his were on the other. The altercation took place about midnight in front of Peter Berg’s home, which was one-half block from Wrightwood Park. Berg, Rucker and Hansen were sitting on the stairs in front of Berg’s house when they heard a scream coming from the park. They went to investigate. As they approached the entrance to the park, they saw a group of young men leaving. They returned to Berg’s house and two of the group, Poltrock and another, followed them. After a long argument, they began to fight.

From this point on the testimony of the three complainants differed markedly. Berg testified that he received the first blow; that Poltrock knocked his head against the porch and he became unconscious. However, 1 week before the trial he said he did not know who hit him. Rucker testified he was struck first, that Poltrock hit him in the face with his fist. He reflexively closed his eyes and reeled back, and when he opened them he saw Berg going down and Hansen backing away. Hansen testified that the fight began with Poltrock slapping him around. Poltrock then hit Berg, and after that he and Rucker “dealt” with Poltrock. At another point in his testimony, Hansen said that Poltrock and his friend came at him and that Poltrock kicked him in the forehead. After this, he attempted to strike Poltrock, but the scuffle ended quickly when Berg’s sister and father came out of the house. He also said that he and Rucker fought with Poltrock, but he could not remember being struck.

Michael Poltrock testified that he and some friends were talking in Wrightwood Park when the complainants drove up in an auto. They got out of the car, took some jacks and wrenches from the trunk, and shouted obscenities at the group in the park. When some members of the group moved toward them, the complainants threw the “weapons” back into the trunk and drove away. Poltrock’s testimony as to. the events in the park was corroborated by Gary Schlapinski who was one of those in the park. He said a car pulled up on the street and the three complainants emerged; they snatched metal objects from the trunk and swore at him and those with him. They did not come into the park so nothing came of the incident. When the group broke up about 12:30 A.M., he accompanied Poltrock as far as the park gate; he went his own way and Poltrock his.

When he left the park, Poltrock and a friend of his named Berk MeGraw walked to Berg’s house. Poltrock lived a block away from Berg. He acknowledged that he did not have to walk past Berg’s house on his way home from the park, but he said he went there to talk to the complainants and that he never got closer to them than was necessary to carry on a conversation. He said he asked them, “What were you doing swearing at us and taking out weapons?” The complainants answered that they believed someone was getting “beat up.” Poltrock replied that no one had been beaten, and continued questioning them. The conversation escalated into an argument. He next observed Berg and McGraw wrestling on the ground and then Rucker and Hansen lunged at him. He denied hitting either of them or Berg, and stated he did not see McGraw strike anyone.

On the subjects of the car, the weapons and going to the park, the complainants again contradicted each other. Rucker’s car was parked in front of Berg’s house. Rucker denied driving around that night, stopping at the park or removing any objects from the trunk. On the other hand, Hansen testified that they had ridden around in Rucker’s car. Berg testified that when Rucker and Hansen walked to the park they carried something in their hands. Hansen admitted that he removed a bumper jack from the car’s trunk, but he said he did this in front of Berg’s home and returned it to the trunk before Poltrock came by. Rucker said the three of them went to the park. Hansen said he remained near Rucker’s car while the others went there. Berg said it was he who did not go, that he stayed near an alley and watched Hansen and Rucker go.

Although the complainants did not know McGraw two of them knew Poltrock, but no complaint was signed against him until July 1, 1972, 11 months after the alleged batteries. When questioned about the delay, Rucker said he went to a police station the night of the fracas and he believed a warrant was issued, but he saw Poltrock in the neighborhood the next day and did not notify the police. Berg testified that he did not know Poltrock’s address, but he admitted seeing him in the neighborhood several times between the night of the fight and the date of his arrest. Hansen said that he talked to the police the same night and that on a later day he aided them in searching for Poltrock.

The trial court ruled that the testimonial discrepancies in the stories told by the complainants did not destroy their credibility. In reviewing a conviction in a non-jury trial, appellate courts attach great weight to the findings made by the trier of fact, including his appraisal of the credibility of witnesses. But his findings are not conclusive, and it is this court’s duty to set aside a conviction where the evidence is so unsatisfactory that it leaves a reasonable doubt of the defendant’s guilt. People v. Charleston (1970), 47 Ill.2d 19, 264 N.E.2d 199.

We have such doubts in this case. We do not share the trial court’s confidence in the complainants’ testimony; rather, we believe the cumulative effect of the contradictions within and between their stories raises a reasonable doubt of the defendant’s guilt. We find it unbelievable that Poltrock simultaneously attacked three opponents and struck them in such rapid succession that each one thought he was the first one hit. We also find unbelievable the complainants’ assertions that only Poltrock landed any blows. Their full account of what happened, in a scuffle involving presumably healthy youths of high school age, is highly improbable. Where the evidence of the prosecution is improbable, unconvincing or contrary to human experience, a reviewing court will not hesitate to reverse a judgment of conviction. People v. Stevenson (1962), 25 Ill.2d 361, 185 N.E.2d 199.

In searching the record, the only credible evidence we could find bearing on the intention needed to support the findings of guilt (Ill. Rev. Stat. 1969, ch. 38, par. 12—3) was the undisputed fact that Poltrock went to Berg’s home. But this does not prove that he went there with the intention of committing a battery, nor does it necessarily prove that he was the aggressor. He knew where Berg lived and must have recognized him at the park. He went to inquire why they were bellicose to him and his friends. If he were the aggressor, he was a foolhardy one: he approached and confronted three persons who could have been armed or who, he knew, had weapons available. Outside of the testimony of the complainants, which we cannot accept, there is no evidence that Poltrock was the aggressor or that he inflicted batteries upon them intentionally.

The trial court placed special reliance, when entering the findings of guilt, on the defendant’s own testimony. The testimony was not implausible, and indeed was partially corroborated by another defense witness. Apart from that, the fact that the judge may have disbelieved the defendant’s denials cannot rehabilitate flagrant inconsistencies in the complainants’ testimony. Criminal convictions must rest on the strength of the State’s case and not on the weakness of the defendants’. (People v. Carroll (1970), 119 Ill.App.2d 314, 256 N.E.2d 153.) There are simply too many flaws in the fabric woven by the complainants’ testimony for it to bear the weight of our doubts, and its untrustworthiness cannot be redeemed by pointing to the frailty of the defendant’s case.

Finally, while it is not directly related to the altercation, we find it difficult to understand the slow course of events leading to Poltrock’s arrest. Complaints were not signed until a full 11 months had elapsed after the fight. Although this may have been due in part, as Rucker hypothesized, to slowness of the police to act, nevertheless the complainants’ own inattention to the matter over so long a time cannot help but cast doubt upon their personal confidence in their accusations. Poltrock was no stranger to them. Two of the complainants encountered him after the fracas, one of them the very next day, but neither notified the police, at a time when their indignation over the purported assault would have been at its highest.

The judgment of conviction on all three battery charges will be reversed.

Reversed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Terry Smith, Defendant-Appellant.
    (No. 58822;
    First District (3rd Division)
    March 21, 1974.
    James J. Doherty, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Terry Smith was convicted in a non-jury trial of battery and criminal damage to property and was placed on probation for 1 year on each charge, the periods of probation to run concurrently.

In this appeal his sole contention is that he was not proved guilty of criminal damage to property because of a fatal discrepancy between the complaint and the evidence.

Smith was accused of breaking a window in a restaurant on January 7, 1972. On that date Chris Tambakos was working behind the counter of Dons Grill at 4803 Armitage Avenue, Chicago. Sometime during the day the defendant walked in. A day or two earlier he had been told by Tambakos that he would not be served there again. When Smith entered the grill he picked up a sugar bowl and salt shaker and threw them at Tambakos, striking him on the arm. He then seized another sugar bowl and hurled it through a four by six-foot window.

Two complaints were filed against the defendant, one for battery and the other for criminal damage to property. The latter alleged that Smith,

“* * * intentionally and knowingly damaged property * * * plate glass window of GUS KAPRALES without his consent # # # >>

The State’s proof, however, was that Oscar Perlis owned, the grill at 4803 Armitage Avenue and that the grill’s window was broken without his consent.

In a prosecution of an offense against property, the complaint or indictment must allege the- ownership of the damaged property, and at the trial the allegation must be proved as charged. (People v. Mosby (1962), 25 Ill.2d 400, 185 N.E.2d 152.) Failure to prove the essential element of ownership is fatal and the failure may be raised for the first time on appeal. (People v. Walker (1955), 7 Ill.2d 158, 130 N.E.2d 182. ) This rule springs from the contingency that a defendant may subsequently need to plead former acquittal or conviction in the event of a second prosecution for the same offense. Since the requirement is founded upon the constitutional safeguard against double jeopardy, it is a substantial right and not to be treated as a mere technicality.

The State argues that there was only a variance between the name of the owner in the complaint and his actual identity as proved at trial. In a variance case, the issue becomes one of prejudice; a defendant must show that the difference between the name of the person alleged as owner and the one proved at trial resulted in substantial harm to him. (People v. Nelson (1959), 17 Ill.2d 509, 162 N.E.2d 390.) Moreover, where a variance is involved, failure by the defendant to timely object to the defect in the trial court results in waiver of the right to appeal the point. People v. Gilmore (1968), 101 Ill.App.2d 447, 243 N.E.2d 473.

The inapplicability of the cases cited by the State to the facts of the present case is apparent. People v. Nelson was an armed robbery case in which the indictment named Salvador Verduzco as the victim, while at trial the name was proved as Salvador Verdusco. From the other circumstances, the court found there was no possibility the defendant had been prejudiced or would have to answer for the offense a second time because of the discrepancy. In People v. Gilmore the indictment named August Irby as victim, while the testimony identified him as Artis Irby. Other cases in the same line include: People v. Nesbitt (1961), 21 Ill.2d 487, 173 N.E.2d 447 (tire indictment charged larceny from the person of Christine Cury, but the proof showed the victim to be Christine Oury); People v. Rosario (1972), 4 Ill.App.3d 642, 281 N.E.2d 714, (the defendant was charged with the burglary of Isaac Shermans apartment; the evidence showed the correct name of the complainant to be Isadore Sherman). In each of these cases the difference between allegation and proof was negligible. Hence, the courts could easily conclude that the material averments had been proved and that the slight variance caused no harm or surprise to the defendants. But what we have before us is a gross dissimilarity, a failure of proof. Kaprales, the alleged owner, did not appear at the trial and his name is not mentioned in the record. There is a substantial possibility of confusion if the defendant were indicted again for the same offense.

The State failed to prove a material part of its case, and the defendant’s conviction on the criminal damage to property charge is reversed.

Reversed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. R. J. Johnson, Defendant-Appellant.
    (No. 59201;
    First District (3rd Division)
    March 21, 1974.
    MEJDA, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
   PER CURIAM.

Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Thomas A. Manet, and Timothy John Lee, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jay William Shutter, Defendant-Appellant.
    (No. 59011;
    First District (5th Division)
    March 22, 1974.

      BARRETT, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Ira Churgin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Brown, Defendant-Appellant.
    (No. 59178;
    First District (5th Division)
    March 22, 1974.
    BARRETT, J., took no part.
    James J. Doherty, Public Defender, of Chicago (William Lebovitz, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wesley Washington, Defendant-Appellant.
    (No. 59434;
    First District (5th Division)
    March 22, 1974.

      BARRETT, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Richard Kharas, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dennis J. Smith, Defendant-Appellant.
    (No. 57114;
    First District (2nd Division)
    March 26, 1974.

      James J. Cutrone, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Patricia Campbell Bobb, and Stephen J. Broussard, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court.

Defendant, Dennis Smith, was charged with attempt armed robbery and aggravated battery. After a jury trial he was found guilty of both offenses and was sentenced to concurrent terms of 4 to 11 years in the penitentiary. Defendant appeals and urges reversal of his convictions on the grounds that:

1. The victim’s in-court identification of defendant was tainted by suggestive show-up and lineup procedures and defendant’s motion to suppress the in-court identification was erroneously denied;
2. Impermissible hearsay testimony regarding the victim’s out-of-court identification of defendant was allowed into evidence;
3. Defendant’s right to cross-examine his accuser was unduly restricted;
4. Evidence of a gun and cartridges was erroneously introduced into evidence when no connection between the evidence and the offenses was shown; and
5. The evidence was insufficient to prove defendant guilty beyond a reasonable doubt.

On March 25, 1971, at approximately 6 P.M., Bertha Adams was walking east on 61st Street in Chicago. She noticed three boys walking behind her, and as she turned to enter a courtyard of a building at 705 East 61st Street, the three boys passed her. She observed the shortest of the three follow her into the courtyard, and heard a voice behind her say “Give me your purse or I will shoot you.” Mrs. Adams turned to her left and looked directly at the offender. He repeated his statement and Mrs. Adams then screamed and began to run. The offender shot her in the hip and she fell. Neighbors called police who arrived on the scene and transported the victim to Billings Hospital.

At trial Mrs. Adams identified defendant as the man who approached her, asked for her purse and shot her. She also testified that she identified defendant by his face and his voice when he was brought into her hospital room. On cross-examination she testified that she had never seen defendant prior to the incident, and that she could not describe the other two boys at the scene. She stated that she did not know how long she observed the offender’s face, and denied stating in previous testimony that she observed the offender for no more than 10 seconds. She also recalled that she described the offender to police as a Negro wearing a black leather jacket. She did not tell police that the jacket was waist-length or that the offender was a Negro with a dark complexion. She did not describe his face or hair style, and she did not see the gun held by him. In the hospital the officers told her that they had a man for her to took at, and then they brought in defendant. She recognized defendant’s face.

Detective Lawrence Copeland testified that he arrived at Billings Hospital to investigate the crimes at approximately 7 or 8 P.M. on March 25, 1971. The victim was lying on a bed and a lineup was conducted in the hospital emergency room. Two Negro policemen were placed in the lineup with defendant, and the victim identified defendant. Two or three days after the incident, Detective Copeland returned to the hospital to retrieve the bullet removed from Mrs. Adams’ body, but he was informed by hospital personnel that the bullet had been tost.

Detective Robert Krueger, Officer Copeland’s partner, testified regarding the lineup at the hospital. His testimony was substantially identical to Copeland’s. He added that the gun dropped by defendant prior to his arrest was shown to Mrs. Adams who could not identify it as the gun wielded by her attacker.

Officer Richard Hutchings, who responded to the call regarding the shooting and who also arrested defendant, testified that the victim described the offender as a “male Negro, dark-skinned, approximately 18, wearing a black, waist-length leather jacket.” He and his partner began a search of the area, and after patrolling for approximately Vz hour, he observed defendant in an alley. He observed defendant step behind a post or telephone pole and drop a white object. The officer left his car and defendant moved toward 63rd Street. The officer proceeded to the post and found a small, .22-caliber revolver with one expended cartridge. He chased defendant who had begun to run, and he apprehended defendant in another alley. The officer told defendant that he fit the description of a man involved in an attempt armed robbery and aggravated battery, and defendant denied any involvement in the crimes. The officer proceeded to Billings Hospital with defendant and inquired as to the victim’s condition. He then brought defendant into the victim’s room whereupon the victim stated, “That is the man.” On cross-examination Officer Hutchings stated that he had stopped two or three persons fitting the offender’s description prior to his observation of defendant. He also recalled that defendant denied dropping a gun, and that he stated that he had been with friends between 5 P.M. and 7 P.M. that evening.

After introducing into evidence the gun, one expended cartridge and three unexpended cartridges, the State rested.

Defendant testified in his behalf that he was with friends at 884 East 64th Street from 5:30 P.M. to approximately 7:40 P.M. on the evening in question. He stated that he did not drop a gmi in the alley, and that he was not running away from police when he was arrested. At the time of his arrest, at approximately 7:40 P.M., the officers did not mention the gun. He was taken to the hospital and brought into a room where Officer Hutchings asked Mrs. Adams if he was the person who had shot her. She did not speak, but shook her head. He was taken from the room and two detectives entered the room with the victim. They later exited and placed defendant in a lineup with two policemen. They were all told to say “Give me your purse or I will shoot you.” The victim then identified defendant.

Tyrone Smith and Flossie Smith were called as alibi witnesses. They both testified that defendant arrived at their apartment between 3 P.M. and 4 P.M. and remained until after 8 P.M. on March 25, 1971.

In rebuttal the State recalled Officers Hutchings and Krueger. Officer Hutchings testified that he arrested defendant between 7:30 and 7:45 P.M. Officer Krueger testified that he first observed defendant at the hospital at approximatly 7:40 P.M.

The jury found defendant guilty as charged.

Defendant first contends that his motion to suppress the identification testimony of Bertha Adams should have been granted. He argues that her in-court identification was based upon suggestive pretrial identification procedures, and that therefore, he was denied due process of law.

At the hearing on the motion to suppress, defendant testified that at the show-up the victim stated “No, Sir” in response to a question whether defendant was the offender. Then three other persons were placed in the lineup with him. One of the men was black, two were white and all three were taller than defendant.

Officer Hutchings testified that he brought defendant into the emergency room, and when the victim saw him she said “This is the man.” When this identification was made defendant was standing in the doorway to the room, 3 or 4 feet from the victim.

Bertha Adams testified at the hearing that she identified defendant when he was brought into her room and stood next to her bed. Later defendant repeated the words spoken during the attempt robbery and she told police that she recognized defendant by his face and voice.

The trial court then denied defendant’s motion to suppress the identification testimony.

Defendant cites the case of Stovall v. Denno, 388 U.S. 293, in support of his argument. In Stovall the Supreme Court stated that “the practice of showing suspects singly to persons for the purpose of identification and not as part of a lineup, has been widely condemned.” 338 U.S. 293, 302. The Court held, however, that the test to determine a violation of due process in the conduct of a confrontation depends upon the totality of circumstances surrounding that confrontation. Where a defendant proves that the identification procedure was so suggestive as to give rise to a substantial likelihood of irreparable misidentification, a deprivation of due process is established and the identification testimony must be suppressed. (Neil v. Biggers, 409 U.S. 188; People v. Johnson, 45 Ill.2d 38, 257 N.E.2d 3.) Hospital show-ups per se cannot be considered to be so suggestive as to give rise to a substantial likelihood of misidentification. Hospital show-ups have been upheld where the physical condition of either the victim or the accused renders such a confrontation imperative (Stovall v. Denno, supra; People v. Young, 6 Ill.App.3d 119, 285 N.E.2d 159), or where the victim’s excellent opportunity to view the defendant during the commission of the crime negates the likelihood of misidentification. People v. McCorry, 51 Ill.2d 343, 282 N.E.2d 425.

In the instant case defendant argues that the hospital show-up was unnecessary in that the victim was not in critical condition. When defendant was brought to the hospital the police officers were informed that the victim was to undergo surgery for removal of the bullet. In view of these circumstances, the officers reasonably believed that an immediate identification prior to surgery was the only feasible procedure for identification. We cannot now say that the officers’ determination was unreasonable.

Moreover, even if we were to determine that the show-up was unnecessary, we are of the opinion that defendant was not denied due process of law. The victim was positive in her identification of defendant, and upon seeing defendant, within approximately hours of the commission of the crimes, immediately identified him as her assailant. Based upon the fact that she turned and looked directly into the offender’s face, she testified that she was certain that defendant was the offender.

Defendant relies upon three factors to establish that the victim’s opportunity to observe her assailant at the time of the crimes was inadequate, and that therefore, her identification of defendant necessarily was based upon the suggestive identification procedures at the hospital: (1) the record is silent as to lighting conditions at the time of the crimes; (2) the victim failed to describe the offender’s facial characteristics or hair-style; and 3) the victim merely had an opportunity to briefly glance at the offender.

First, the record reflects that the victim testified that it was “not dark” on the evening in question. Secondly, the failure to describe to police the facial characteristics of the offender does not affect the victim’s ability to make a positive identification, but merely affects the credibility of her identification. (People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378.) Defense counsel has indicated no features of defendant which would warrant obvious mention. Lastly, the victim did testify at the hearing on the motion to suppress that she did not look at the offender’s face more than 10 seconds “because I started running.” Under the circumstances and facts of this case, we cannot say that the length of time to observe the offender was insufficient, especially in view of the convincing testimony of the victim. Cf. People v. Hudson, 46 Ill.2d 177, 263 N.E.2d 473.

The victim had an opportunity to view defendant face-to-face for an adequate length of time, and there apparently was no variance between her description of defendant and his actual appearance. Therefore, in view of the adequate opportunity of the witness to view her assailant and the immediacy of the hospital confrontation, we do not believe that the hospital show-up led to a substantial likelihood of misidentification of defendant. Because the show-up did not result in a denial of due process, the lineup is not significant. (People v. Triplett, 46 Ill.2d 109, 263 N.E.2d 24, cert. denied, 401 U.S. 955.) Defendant’s motion to suppress was properly denied.

Defendant’s second assignment of error is the admission into evidence of hearsay testimony by the police officers concerning the victim’s identification of defendant at the hospital. Officer Hutchings testified that the victim identified defendant when he was shown singly to the victim, and Officers Krueger and Copeland testified that the victim picked defendant from the lineup.

Although no objection was made to this testimony at trial, and this error may be considered waived (People v. Jones, 2 Ill.App.3d 575, 277 N.E.2d 144), hearsay identification testimony constitutes “plain error” (Ill. Rev. Stat. 1971, ch. 110A, par. 615(a)) and requires reversal when such testimony is utilized as a substitute for courtroom identification, or when it is utilized to strengthen a weak identification. (People v. Rice, 5 Ill.App.3d 18, 282 N.E.2d 526; People v. Coleman, 17 Ill.App.3d 421. We are greatly concerned by the State’s continual use of this identification testimony, however, in view of the evidence in this case, this testimony constituted harmless error. People v. Canale, 52 Ill.2d 107, 285 N.E.2d 133.

Defendant’s third contention is that he was denied his constitutional right to cross-examine his accuser. Specifically defendant argues that he was denied the opportunity to cross-examine the victim of the crimes as to her ability to view her assailant. On cross-examination the following colloquy ensued:

“Defense Counsel: Mrs. Adams, do you wear glasses, Ma’am?
Witness: Yes, I do.
Defense Counsel: Do you have your glasses with you today?
Witness: Yes, I do.
Defense Counsel: May I see them, please?
Prosecutor: Objection, there is no relevancy in this, Judge, # # #
The Court: Well, I’m not certain. For the moment I will overrule your objection. If counsel does not tie it up in some way I will strike it. * * *
Defense Counsel: These glasses that you have shown me you also owned them on the 25th of March?
Witness: Yes, I own them.
Defense Counsel: And, they’re bi-focals, are they?
Witness: Bi-focals.
Defense Counsel: And do you use them for anything other than reading?
Witness: No.
Defense Counsel: And you did not have them at the time of the alleged robbery?
Witness: No, I didn’t. I don’t wear them in the street.
Prosecutor: At this time, Judge, we are asldng that the question and answer in respect to the glasses be stricken from the record.
The Court: The jury will be instructed to disregard all questions and answers with respect to eye-glasses.”

Defendant correctly states the general proposition of law that where the principal issue concerns the identification of the accused, defense counsel should be given wide latitude to cross-examine the identifying witness as to his intelligence, powers of discernment and capacity to form a correct judgment in order that the jury may determine the value of his testimony. (People v. Morris, 30 Ill.2d 406, 197 N.E.2d 433.) An inquiry directed to determine if the witness suffers any ocular impairment is an appropriate area of cross-examination, and the trial court erred in striking this testimony and instructing the jury to disregard it. However, from the colloquy set forth above, we are convinced that this error does not require reversal.

Defendant next assigns as error the introduction into evidence of the gun and cartridges dropped by defendant prior to his arrest. Defendant relies upon the testimony of the victim that she did not see the gun used by her assailant and was unable to describe it to police. Defendant concludes that the State’s failure to connect the gun and the cartridges to the crime precludes their use as evidence.

The general rule is that physical evidence may be introduced into evidence where there is proof to connect the evidence to defendant and the crime. (People v. Miller, 40 Ill.2d 154, 238 N.E.2d 407, cert. denied, 393 U.S. 961; People v. Gonzales, 40 Ill.2d 233, 239 N.E.2d 783.) Moreover, where there is evidence indicating that an accused possessed a weapon at the time of the offense, a similar weapon found in his possession at the time of his arrest may be admitted against him, even though not identified as the actual weapon used by him in the commission of the crime. (People v. Johnson, 35 Ill.2d 516, 221 N.E.2d 497.) In the instant case the arresting officer observed defendant drop the revolver. The officer recovered the revolver, three unexpended shells, and one spent shell. It is not disputed that this evidence was sufficient to connect the gun and cartridges to defendant. The victim was shot once, and identified defendant as her assailant. Therefore, a sufficient nexus between the gun and cartridges and defendant and crimes was established. The trial court did not err in permitting the jury to consider this circumstantial evidence.

Finally, defendant urges reversal of his convictions on the ground that he was not proven guilty beyond a reasonable doubt. Defendant again maintains that the victim’s identification was weak and was based upon the suggestive pretrial identification procedures. Defendant asserts that his convictions cannot stand when his alibi evidence is weighed against the limited opportunity of the victim to observe the offender.

The rule in Illinois is that identification testimony of one witness is sufficient to sustain a verdict of guilty if the witness’ testimony is positive and credible, and he had an adequate opportunity to observe the accused. (People v. Solomon, 24 Ill.2d 586, 182 N.E.2d 736; People v. Camp, 9 Ill.App.3d 445, 292 N.E.2d 242.) The jury in this case found that the victim was close enough to defendant for a sufficient length of time, under adequate lighting conditions, to positively identify defendant. Inconsistencies in the testimony of the victim and the police officers were placed before the jury, and the jury found the State’s witnesses to be credible, and chose not to believe defendant’s alibi evidence. We cannot say that these determinations were palpably erroneous. We note that the testimony of his two alibi witnesses was inconsistent with defendant’s own testimony. Finally, the identification testimony of the victim was not the sole incriminating evidence against defendant. The victim’s testimony was corroborated by evidence of the gun and the spent cartridge disposed of by defendant prior to his arrest. Upon our review of the total record, we are convinced that the evidence was not so unsatisfactory as to raise a reasonable doubt of defendant’s guilt.

Accordingly, the judgment of the trial court is affirmed.

Affirmed.

HAYES, P. J., and DOWNING, J., concur.

       Ill. Rev. Stat. 1971, ch. 38, par. 8—4.

       Ill. Rev. Stat. 1971, ch. 38, par. 12—4(b)(1).


text:
    Johnnie Mae Isabell, Plaintiff-Appellant, v. The Department of Public Aid et al., Defendants-Appellees.
    (No. 57306;
    First District (2nd Division)
    March 26, 1974.

      Mark Spiegel, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This appeal arises from a decision of the Circuit Court of Cook County affirming an administrative decision of the Illinois Department of Public Aid (IDPA). The IDPA dismissed plaintiff’s administrative appeal on the grounds that it lacked jurisdiction over plaintiff’s claim for failure to file the appeal within the required time limits.

On appeal, plaintiff contends that under the applicable statute (Ill. Rev. Stat. 1969, ch. 23, par. II—8) and IDPA regulations, the 60-day limitation period on the right to appeal does not begin to run until the recipient is served with written notice of the adverse decison; and that a denial of a hearing on grounds of the running of the statutory period, violates both the Federal Social Security Act and due process when notice is not given.

In September of 1969, plaintiff applied for aid to families with dependent children (the county branch of the IDPA, hereafter referred to as AFDC), and informed the department that she and two of her children, William and Eddie, receive medical care. Mrs. Isabell and William have stomach ulcers; Eddie has a heart condition, being born with a hole in his heart. Based on these medical needs, plaintiff requested the county department to include in her public aid grant both a telephone allowance and food allowances for a special diet. Plaintiff testified that the intake officer informed her that the special allowances would be included in the budget.

In November of 1969, plaintiff was declared eligible for AFDC and received monthly payments from January 1970 until April 1971. At no time during the period under appeal, January 1970 through September 1970, were the special allowances included in her grant. Plaintiff testified that the county department never informed her that the special allowances were being denied; nor was she informed of the various component parts that made up her assistance grant.

During the period in question, plaintiff's monthly grants did not remain constant, but varied as follows: January and February 1970— $163.84; March 1970 through June 1970—$169.06; July 1970 through September 1970—$173.48; October 1970 to February 1971—$100.58. In the March through June 1970 period, 5 dollars a month was deducted from plaintiff’s grant because of an alleged earlier overpayment. There is no indication in the record that plaintiff was informed of these deductions.

On January 25, 1971, after consulting the Legal Aid Bureau, plaintiff filed a notice of appeal with the IDPA challenging the county department’s alleged inaction on her request for the special allowances and the 5 dollar monthly deductions for the period of March 1970 through June 1970. A hearing was held on March 19, 1971, in which neither of the parties raised the jurisdictional issue. The decision of the IDPA, rendered on June 24, 1971, denied the appeal on the ground that it lacked jurisdiction over the subject matter since the appeal was not filed within the required statutory period. Pursuant to the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.), an action for judicial review was brought in the Circuit Court of Cook County. Plaintiff appeals the circuit court’s affirmance of the IDPA decision.

The decision of the IDPA rests upon Ill. Rev. Stat. 1969, ch. 23, par. 11—8, which provides inter alia:

“Applicants or recipients of aid may, at any time within 60 days after the decision of the County Department or local govemmental unit, as tihe case may be, appeal a decision denying or terminating aid, or granting aid in an amount which is deemed inadequate, or changing, cancelling, revolting or suspending grants as provided in Section 11—16, or determining to make a protective payment under the provisions of Sections 3—5a or 4—9. An appeal shall also lie when an application is not acted upon within 30 days after the filing of the application, or within a different time period as provided by rule of the Illinois Department, if an adjustment is necessary to conform with Federal requirements.
If an appeal is not made, the action of the County Department or local governmental unit shall be final.”

Defendants argue that the facts of this case indicate that the special allowances requested by Mrs. Isabell were either denied by the local department or never acted upon. Inasmuch as the hearing officer made no finding that these requests were expressly denied or simply not acted upon, we do not vigorously question defendant’s ambivalent characterization. However, the record strongly suggests that plaintiff’s requests were never acted upon. Defendants further argue that section 11—8 operates as an absolute bar in either case notwithstanding the absence of notice; or alternatively, that plaintiff was placed on constructive notice by the fluctuating amounts of her monthly grants. We disagree.

AFDC is one of the joint Federal-State public assistance programs authorized by the Social Security Act (42 U.S.C. par. 601 et seq.) and administered by the United States Department of Health, Education and Welfare (HEW). As a condition for receiving federal financial assistance, the appropriate state agency is required to comply with the following relevant provision of the Social Security Act:

42 U.S.C. par. 602(2) (4):

“A State plan for aid and services to needy families with children must * * * provide for granting an opportunity for a fair hearing before the State agency to any individual whose claim for aid to families with dependent children is denied or is not acted upon with reasonable promptness * *

Not unmindful of the federally imposed obligation to “provide for granting an opportunity for a fair hearing”, tire state statutes and regulation in question evidence a clear intent to provide meaningful access to administrative appellate remedies. Defendant’s contention that Ill. Rev. Stat. 1969, ch. 23, par. 11—8, operates as an absolute bar to administrative remedies notwithstanding any notification to the applicant or recipient, not only fails to appreciate the statutory context of that section, but wholly disregards its own regulation which provides:

“An applicant or recipient must exercise his right of appeal within 60 days after the decision of the County Department. The date of the written notifications to the applicant of the County decisions on an application is the date from which an appeal may be made within 60 days. When there is a reduction in or termination of assistance, 60 days start with the date of the written notification to the recipient of the change. When the applicant or recipient appeals because of being aggrieved by other action of the County Department, the cause of such grievance shall have been present within 60 days of the appeal.” (Illinois Department of Public Aid’s Categorical Assistance Manual, section 6001.02.)

Looking to the statutory context of Ill. Rev. Stat. 1969, ch. 23, par. 11—8, we initially note that section 11—8 specifies that within 60 days after the decision of the county department an applicant or recipient may appeal that decision to the Illinois department. Although section 11—8 does not specify any notice requirement, section 11—6 provides that when a decision has been reached regarding an application, the applicant shall be given notice within 10 days. The interrelationship of these sections is significant. In People ex rel Barrett v. Barrett, 31 Ill.2d 360, 364, 365, 201 N.E.2d 849, the supreme court stated:

“It is a cardinal rule of statutory construction that significance and effect should, if possible, without destroying the sense or effect of the law, be accorded every paragraph, sentence, phrase and word. * * * A statute should be so construed, if possible, that no word, clause or sentence is rendered meaningless or superfluous. [Citations.]”

The import of sections 11—6 and 11—8 indicate that the “decision” referred to in section 11-8 is one where the State has taken some action and the applicant has been informed of it. Any other construction would not only raise serious questions under Federal law, but would emasculate an applicant’s right to notice under section 11—6 merely through the imposition of the 60-day bar.

Nor is this result altered in cases of inaction, as defendants suggest, by that part of section 11—8 which provides:

“An appeal shall also lie when an application is not acted upon within 30 days after the filing of the application * *

Defendants argue that if an application, either in its entirety or in part, is not acted upon within 30 days, a right to appeal accrues and triggers the running of the 60-day limitation period. We are of the opinion that the 30-day period is intended to enable the applicant to expedite his claim when the Department of Public Aid has not acted upon the application, but does not, in any instance, operate to begin the tolling of the 60-day statute of limitations. Under defendants’ interpretation, in instances where the county department has made a “decision” on a portion of the application but has done nothing in respect to another portion, some rather inconsistent results are obtained. For example, if plaintiff’s caseworker does nothing to process her request for special allowances, the defendants argue that her claim is barred 60 days after she receives her first grant—March 2, 1970. But if the caseworker processes that particular claim at a later date and a “decision” is reached on September 1, 1970, then plaintiff’s statutory right to appeal is not barred until November 1, 1970. Defendants’ interpretation would lead to the conclusion that an applicant’s right to appeal may be lost and resurrected by arbitrary criteria over which the applicant has no control. Such construction is discordant with the Federal requirement of a “fair hearing” and is contradictory to the statutory and regulatory scheme. We therefore decline to foUow defendants’ interpretation and conclude that the 60-day statutory period of limiations does not begin to run until a decision had been made by the county department and the applicant or recipient receives notification of that decision.

Defendants alternatively contend that plaintiff was on constructive notice of the “decision” because her aid check fluctuated from month to month. Defendants’ contention is not persuasive. Defendants’ argue that plaintiff’s right to appeal expired on March 2, 1970; yet the record indicates that the first variance in the amount of the grant occurred in March. We fail to perceive how plaintiff had “ample time” to file her appeal, nor do we see the need for determining whether plaintiff was placed on constructive notice at some time subsequent. The statutory scheme and defendants’ own regulation require actual notice; improper payment itself is not such notice within the purview of the rule.

For the foregoing reasons, the order of the trial court is reversed and the cause remanded for proceedings not inconsistent with the views expressed herein.

Reversed and remanded.

LEIGHTON and DOWNING, JJ., concur.

       “Within 10 days after a decision is reached on an application, the applicant shall be notified in writing of the decision. If the applicant is determined to be eligible, the notice shall include a statement of the amount of financial aid to be provided. If the application is denied, the notice shall include a statement defining the applicant’s right to appeal the decision.” (Ill. Rev. Stat. 1969, ch. 23, par. 11—6.)


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Griffin, Defendant-Appellant.
    (No. 56631;
    First District (4th Division)
    March 27, 1974.

      Edward M. Genson, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr. and Fran Baumgart, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court;

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was indicted for unlawful possession of heroin. At a bench trial, he was convicted and sentenced to 60 months probation.

The issues presented on appeal are (1) whether the court erred in denying the defendant’s motion to suppress evidence; (2) whether the evidence was sufficient to link the heroin found in the police station to the defendant and to confirm the substancie found in the police station was the same substance tested at the police laboratory and found to be heroin; and (3) whether the evidence proved the defendant guilty beyond a reasonable doubt.

On January 20, 1970, at approximately 2:30 A.M., Police Officer Edward Moran apprehended three robbery suspects at the Morocco Hotel, 3933 South Drexel, Chicago, Illinois. The suspects were taken to the Twenty-first District station, on the complaint of Willie Smith and Leon Hollis. At the station the robbery suspects were taken to a room to be processed. Complainants Smith and Hollis were told to wait in the station assembly room. Approximately 15 minutes later the defendant, Charles Griffin, entered the station voluntarily to persuade Smith and Hollis not to sign robbery complaints against the suspects. The defendant was directed to the assembly room where the complainants were waiting. Meanwhile, the robbery suspects, while being processed, informed the police the defendant and the two complainants had been carrying and selling narcotics at the same time and place the robbery suspects had been arrested. In consequence of this information, Officer Moran returned to the assembly room and informed Smith, Hollis, and the defendant of the accusations made by the robbery suspects. Officer Moran then requested permission to search the two complainants. At this time the defendant was on the other side of the room and not under custody. During the search of complainant Smith, Officer Moran observed the defendant throw something onto a bench located near him. Officer Moran immediately walked across the room and picked up the object—a crumpled cigarette pack. He examined the pack and found that it contained tin foil packets, which he suspected to be narcotics. Two of these packets contained white powder which Officer Moran field-tested and determined to be heroin. The defendant was then arrested and searched. Later that same day, Officer Moran and Officer Lawrence Mastra transported the tin foil packets to Robert Boes, a chemist at the Chicago Police Laboratory. Mr. Boes ascertained that two of the packets contained heroin. The trial court found the defendant guilty of unlawful possession of heroin and sentenced him to a period of 60 months probation.

The defendant first contends the trial court erred in denying defendant’s motion to suppress physical evidence. Defendant maintains where something has been dropped or thrown away subsequent to an unlawful arrest or detention without probable cause, then whatever is found in proximity to the defendant, which aHegedly has been thrown, cannot be used in evidence against him. Defendant argues the cigarette pack was dropped and found subsequent to his unlawful arrest. In support of his contention the defendant cites the decision in People v. Roebuck (1962), 25 Ill.2d 108, wherein the supreme court held where a defendant was arrested without probable cause, and threw heroin aside, the discovery of the heroin was a result of the illegal arrest and had to be suppressed.

We believe the defendant’s motion to suppress was properly denied by the trial court. On a motion to suppress material evidence, the burden of proving the evidence was the fruit of improper police activity is upon the defendant. (Ill. Rev. Stat. 1970, ch. 38, § 114-12.) At no time during the hearing on the motion to suppress did the defendant introduce proof that he was searched prior to his attempt to discard the cigarette pack containing heroin. Nor did the defendant offer any proof that at the time he was observed in possession of the heroin he was under arrest. The record indicates the defendant voluntarily walked into the Twenty-first District police station and was directed to the assembly room. When Officer Moran entered the room and informed the defendant and the two complainants of the accusations made by the robbery suspects, the defendant was not under any custody. At the time the defendant was observed discarding the heroin, he was not under arrest. The cigarette pack was in plain and open view on the bench. It is well established that “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” (Harris v. United States (1968), 390 U.S. 234.) In People v. Wright (1968), 41 Ill.2d 170, 174, the Supreme Court held:

“ * * if, without a search and without an unlawful entry into the premises, a contraband article * * * is seen in the premises, the police are not required to close their eyes and need not walk out and leave the article where they saw it.’ ” (Citations omitted.)

We conclude the heroin seized by Officer Moran in the instant case was properly admissible into evidence, and the defendant’s motion to suppress was properly denied.

The defendant next contends the evidence presented by the State was insufficient to link the heroin found in the police station to the defendant and was insufficient to confirm the substance found was the same substance tested at the police laboratory and found to be heroin. Defendant bases his contention on the decision in People v. Maurice (1964), 31 Ill.2d 456, wherein the supreme court reversed a conviction for unlawful possession of narcotics, stating the difficulty was the failure to connect the material analyzed by the chemist with fire same packets connected with the defendant. The defendant further cites People v. Resketo (1972), 3 Ill.App.3d 633, where the court reversed a conviction for possession of stimulants on the ground there was no evidence to verify the substance found by the arresting officer was the same material which was subjected to chemical tests.

We believe the chain of possession was established to link the heroin found in the police station to the defendant. We further believe the evidence was sufficient to prove the heroin found in the station was the same substance tested at the laboratory. The law is well established that an accused may, by stipulation, waive the necessity of proof of all or part of the case which the People have alleged against him. Having done so, he cannot complain of the evidence which he has stipulated into the record. (People v. Polk (1960), 19 Ill.2d 310.) In the instant case the defendant stipulated at trial that:

“Robert Boes is a qualified chemist and is qualified to render an opinion of the items that he tested in the Chicago Police Department, and on January 20, 1970, Officer Mastra of the 21st District, submitted ten foil packets to him; two were tested and two of them were found to contain unknown powder which was subjected to various chemical tests and found to contain 1.37 grams in one and the other contained 1.31 grams of diacetyl morphine hydrachloride, commonly referred to as heroin.”

Subsequently, Officer Moran testified:

“A. At that time I observed Charles Griffin [who] was on the other side of the room throw something on[to] the bench.
e # #
A. I picked it up, examined the pack and found some ten foil packets in it.
Q. And are those the same ten tinfoil packages that you and Officer Mastra transferred to the Chicago Police Laboratory?
A. That’s correct.
Q. And are those the same tinfoil packages that we have stipulated to?
A. That’s correct.”

The State’s testimony, along with the stipulation, established the necessary chain of possession. (People v. Judkins (1957), 10 Ill.2d 445.) The cases cited by the defendant are distinguished from the case at bar. In Resketo there was a complete lack of identification of the substance submitted for testing and the State made erroneous statements as to the identification number of substances entered into evidence. In the instant case, the substance was positively identified by the police laboratory chemist, and his test was stipulated to by the defendant. In Maurice the parties stipulated one police officer would testify that he obtained the evidence from the defendant and the chemist would testify he received a packet of heroin from another officer. In the present case, Officer Moran testified the substance he recovered was the same substance he and Officer Mastra brought to the laboratory. We conclude the heroin stipulated to at trial was the same substance recovered from the defendant and analyzed by the police chemist.

The defendant finally contends he was not proven guilty beyond a reasonable doubt. In support of his contention the defendant cites numerous cases wherein the court found the evidence to be insufficient to establish a conviction.

The defendant’s contention is without merit. To support a conviction of unlawful possession of narcotic drugs the State must prove the accused had knowledge of the presence of the narcotics and they were in his immediate possession and control. Such knowledge may be proved by evidence of acts or conduct of the accused from which the inference may be fairly drawn that he knew of the existence of the narcotics at the place where they were found. (People v. Smith (1960), 20 Ill.2d 345.) In the instant case, Officer Moran testified he saw the defendant attempt to discard a cigarette pack which was subsequently ascertained to contain heroin. The credibility of Officer Moran’s testimony was for the trial court to decide, and its judgment will not be disturbed upon review unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of the defendant’s guilt. (People v. Arndt (1972), 50 Ill.2d 390.) In People v. Richardson (1961), 21 Ill.2d 435, police officers observed the defendant throw something out of an automobile. The object was retrieved by the police a few feet from where the defendant was tiren standing and found to be a cigarette package with two small envelopes containing heroin. The supreme court in affirming the conviction held:

“[W]e cannot say as a matter of law that the evidence here is insufficient to support the conviction of the defendant. There is nothing in the record that reflects unfavorably upon the credibility of the two officers who testified. If the [trier of fact] believed their testimony, there is no room for a reasonable doubt that the defendant is guilty.”

The evidence presented in the case at bar was sufficient to prove the defendant guilty beyond a reasonable doubt.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

ADESKO, P. J., and JOHNSON, J., concur.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    Easy Life Club, Inc., Plaintiff-Appellee, v. License Appeal Commission of the City of Chicago et al., Defendants-Appellants.
    (No. 56955;
    First District (4th Division)
    March 27, 1974.

      Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel), for appellants.
    Joseph B. Lederleitner, of Pretzel, Stouffer, Nolan & Rooney, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

The plaintiff-appellee’s retail liquor license was revoked by the local liquor control commissioner upon a finding that the licensee by and through his agents permitted male patrons on the licensed premises to engage in deviate sexual acts; that the licensee’s agents, Dwight Menard and David To well, engaged in deviate sexual acts on the licensed premises; and that the licensee by and through his agents dispensed alcoholic beverages to a person under tire age of 21, all contrary to the ordinances of the City of Chicago, the statutes of the State of Illinois and the rules of the Illinois Liquor Control Commission. An appeal was taken by the plaintiff to the License Appeal Commission and it upheld the violation. The plaintiff filed a complaint for administrative review and the trial court on March 19, 1971, reversed the order of revocation.

The defendants-appellants have appealed and present two issues for review. They maintain that the findings and orders of the administrative agencies are supported by the manifest weight of the evidence. The defendants also contend that the order of tire local liquor control commissioner was not a void order for failure to render it within 5 days because the statute requiring this is merely directory. In light of our view of this case it is only necessary to discuss the first issue raised.

Detective Eugene Sullivan was the first witness who testified and stated that he entered the licensed premises at approximately 1:50 A.M. on August 20, 1968. Sullivan testified that there were 70 patrons in the lounge when he entered and that they were all male. He ordered a drink and stepped back to a rear wall on tire north side of the bar to observe what was occurring in the lounge. Sullivan testified that he observed two different pairs of men standing against the south wall fondling each other in the area of the penis, thighs and buttocks. There was a triangular shaped bar located between the north wall against which Sullivan was leaning and the south wall where the men Sullivan observed were standing. On cross-examination it was established that there were people seated on bar stools on the north side of the bar and people standing behind them. There were also patrons seated at the south side of the bar with other persons standing behind them. After approximately 10 or 15 minutes Sullivan changed his position to the south side of the bar and observed two other men seated at the bar engaging in the same type of conduct. During cross-examination Sullivan did state that for the most part these men had their backs to him and that there were a number of people standing between him and where the men were seated.

There were two bartenders working on the evening in question, Dwight Menard and David Towell. Sullivan stated he observed Menard come up behind Towell and whisper into his ear. Towell’s hands were leaning on the bar and his head was turned. Sullivan testified that Menard had his hands on Towell’s shoulders and that the conversation lasted approximately 15 to 30 seconds. He was asked on direct examination, “Did you see any parts of their bodies touch any time while they were talking to each other?” and he replied, “The area of the penis against the buttocks.” On cross-examination Sullivan did state that there was a flow of patrons moving in and out across his line of vision at the time he observed Menard and Towell. He also testified that the bar was approximately 8 inches above the waistline of the bartenders.

Detective Sullivan testified that at 2:15 A.M. other policemen entered the premises and told the patrons they were going to be arrested. Sullivan stated that one Ivan Huffmaster was charged with accepting drinks while a minor. According to Sullivan, Huffmaster produced as identification a student card which had his birth date on it. Sullivan stated he observed Huffmaster drinking in the lounge and that the glass from which Huffmaster was drinking was confiscated. The contents of the glass were sent to the crime laboratory for analysis and a copy of the crime laboratory report was introduced into evidence. However, this report was not made part of the record. Upon cross-examination, Sullivan stated that prior to the time Huffmaster was in the process of leaving the lounge he had not taken special notice of him. Sullivan also admitted he did not see Huffmaster place anything he was drinking on the bar when the raid was announced. Sullivan testified that there were approximately 70 glasses on the bar and that he did not see Huffmaster drinking from the particular glass that he picked up. He also stated that the liquid in the glass taken to the crime laboratory was amber in color.

The next witness called on behalf of the city was Nick Dalles andró, the president of the licensee. He stated he was not on the premises when the patrons were arrested but was called down later. When he arrived, Dallesandro was arrested and charged with being the keeper of a disorderly house. The charge was later nonsuited. Dallesandro also testified on his own behalf and authenticated photographs of the licensed premises and stated it was kept dimly lit. He testified that on the evening in question he left the premises at approximately 11:30 or 12 P.M. and that at that time there were about 15 or 20 women in the lounge. Dallesandro also stated that prior to the date of his arrest and subsequent thereto persons of both sexes frequented the lounge.

Michael Casabianca testified on behalf of the licensee and stated that he was employed by Nick Dallesandro. Casablanca’s job was to check the identification of the patrons and to see if anyone had enough or too much to drink. He stated that between 11:30 and 12:00 P.M. on the evening in question the patrons were about 40 percent female. While performing his job Casabianca stands just inside the door of the lounge. He stated that from that position he could not see all the people in the establishment. Casabianca testified that from the north side of the bar he could see the patrons on the south side from the middle of the chest upward.

Dwight Menard, the bartender, testified that on the evening in question he commenced work at 8 P.M. He stated that at about midnight there were between 90 and 100 people in the lounge and that 30 or 40 of them were female. Menard testified that the bar reached the lower portion of his chest and that he could see a patron seated at the bar only from the elbows upward. As to patrons standing behind those seated at the bar, he could only see them from the chest upward. Menard stated that he observed no unusual behavior on the part of any of the patrons and that he did not see any patrons engaging in the type of conduct described by Detective Sullivan. Menard denied any intentional touching contact of his body with that of the other bartender. He testified that the area behind the bar was small and that when the lounge is crowded the bartenders have to move quickly and that occasionally they bump into each other. He also stated that sometimes the bartenders have to whisper to each other about customers who have had too much to drink.

David Towell, the other bartender on duty, also testified on behalf of the licensee. He stated he had heard all of the testimony given in the case and if asked the same questions which were asked of Menard and Casabianca, his answers would be substantially the same. It should also be noted that five photographs were introduced and received into evidence on behalf of the licensee which showed tihe relation between the height of the bar and tire people behind it. Although the photographs were received into evidence they were not made a part of the record certified to the License Appeal Commission. In addition although service of process was attempted on Ivan Huffmaster it was not successful and he did not testify.

This case comes before the Court under the provisions of the Administrative Review Act (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) and the rules limiting the scope of review under the Act are well established and no citation of authority is necessary. The findings of the administrative agency are prima facie true and correct and a reviewing court is limited to ascertaining whether the findings are supported by the evidence. The findings can only be disturbed where they are against the manifest weight of the evidence and where an opposite conclusion is clearly evident. After carefully reviewing the record in this case, we are of the opinion that there is a lack of substantial evidence to support the findings of the local liquor control commissioner.

The first charge against the licensee was that by and through his agents male patrons were permitted to engage in deviate sexual acts. However, the conduct described by Detective Sullivan does not come within the definition of deviate sexual conduct contained in the Illinois Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, par. 11—2.) In addition and more importantly, there was no evidence that the licensee or its agents had knowledge of such conduct or permitted it.

“It is fundamental that the authority to revoke a license for cause is limited to conduct or actions of the licensee or conduct or actions of others for which he is deemed responsible or chargeable.
Conversely a licensee cannot be charged with conduct over which he has no control.” (Childers v. Illinois Liquor Control Com., 67 Ill.App.2d 107, 113, 213 N.E.2d 595, 598 (1966); accord, Evans v. License Appeal Com., 95 Ill.App.2d 121, 237 N.E.2d 817 (1968).)

Therefore, since there was no evidence that the licensee or its agents had knowledge or permitted the alleged deviate conduct of the patrons a revocation order premised on this charge cannot be sustained.

The second charge is that the licensee’s agents, Menard and Towell, engaged in deviate sexual acts on the licensed premises. While the court is cognizant of the fact that every act or omission of an agent or employee of a licensee shall be deemed and held to be the act of the licensee (Ill. Rev. Stat. 1971, ch. 43, par. 185), we are of the opinion that there was no substantial evidence to support this charge. Detective Sullivan testified as to a position undertaken by Menard and Towell but there was no testimony that the position was assumed to perform an act of sexual gratification as required by our Criminal Code, supra. Menard to the contrary gave an explanation that was consistent with the conditions of the working area in the lounge and with the duties of the bartenders. The record is also quite clear that the view of Detective Sullivan was necessarily obstructed by the height of the bar and the patrons seated and standing in front of him. A revocation order based on the second charge is against the manifest weight of the evidence and an opposite conclusion is clearly evident.

The third charge was that the licensee by and through his agents dispensed alcoholic beverages to a person under the age of 21. There is no substantial evidence to support this charge. Ivan Huffmaster, the alleged minor, did not testify and there was no evidence as to what his age was. In addition, Detective Sullivan testified that he did not see Huffmaster drinking from the particular glass which he confiscated and sent to the crime laboratory. Although the crime laboratory report was introduced into evidence, it is not contained in the record. There was no evidence that Huffmaster was underage or that what he was drinking was an alcoholic beverage. The récord is devoid of any evidence to support the third charge. Therefore, a revocation order based on the third charge is also against the manifest weight of the evidence.

The trial court did not err in reversing the order of the License Appeal Commission which affirmed the local liquor control commissioner’s revocation of the plaintiff’s liquor license. Since we are of the opinion that the trial court’s decision must be affirmed, it is unnecessary to discuss the second issue raised by the defendant.

For the reasons herein stated, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
    Earl N. Bonovich, Plaintiff-Appellant, v. Convenient Food Mart, Inc. et al., Defendants-Appellees.
    (No. 58248;
    First District (4th Division)
    March 27, 1974.

      Rehearing denied April 24, 1974.

      John O. Demaret and Richard G. Grotty, both of Chicago, for appellant.
    Kirshbaum and Kroll, of Chicago (Barry L. Kroll, Charles C. Kirshbaum and Marvin P. Shore, of counsel), for appellees.
   Mr. JUSTICE JOHNSON

delivered the opinion of the court:

Plaintiff, Earl N. Bonovich, has been a franchisee of Convenient Food Mart since November 29, 1965. On September 28, 1971, he brought an action “individually and in a representative capacity on behalf of all franchisees of Convenient Food Mart” against the defendants for alleged violations of the Illinois Antitrust Act. The complaint alleged that defendants unlawfully restrained trade through the use of tying arrangements and price fixing in that, as a condition precedent to entering into an exclusive franchise agreement with Convenient Food Mart, plaintiff was compelled to purchase all requirements of milk, cream and other dairy products from Scot Lad Foods, Inc., and all ice cream products from Bresler Ice Cream Company. Plaintiff’s complaint further averred that he sustained a financial loss because he was unable to purchase dairy and ice cream products at cheaper prices from other companies and, therefore, could not compete in price with similar convenience stores in such products.

Previously, on June 8, 1971, the Attorney General of the State of Illinois had filed a complaint (71 CH 4218) against the defendants for the same alleged violations of the Illinois Anti-trust Act. After a 5-day trial on the merits, .a finding in favor of the defendants was entered in the People’s case on December 22, 1971.

Plaintiff filed an amended complaint on February 25, 1972. All defendants filed motions to strike the amended complaint, based principally upon the legal effect of the prior judgment entered in the People’s suit. On June 8, 1972, the Honorable Daniel A. Covelli ordered the amended complaint stricken, and plaintiff appeals from that order.

On appeal, plaintiff presents several issues for review but the only one we consider necessary to discuss is whether or not plaintiff’s action is barred as a result of the prior anti-trust action brought against the defendants herein by the Attorney General of the State of Illinois.

The question posed by this appeal is not answered, in specific terms, by the statute. Section 60—7(1) of the Illinois Antitrust Act authorizes the Attorney General to institute civil proceedings to prevent and restrain violations of the Act and directs the court, in such proceedings, to determine whether a violation has been committed. Section 60—7(2) of the Act permits any person who has been injured in his business or property by a violation of the Act to maintain an action for damages and for an injunction. The Act is silent as to whether an allegedly injured person may bring an action under section 60—7(2) where the Attorney General has already done so under section 60—7(1).

Pursuant to section 60—7(1), the Attorney General brought suit against the defendants to establish whether a violation of the Act existed. We believe that the Attorney General’s action, filed in the name of the People of the State of Illinois, was brought on behalf of all the people in the state, including plaintiff and the other Convenient Food Mart franchisees, who were adversely affected by the alleged antitrust violations.

In Little v. Chicago National Life Insurance Co. (1937), 289 Ill.App. 433, 7 N.E.2d 326, the court ruled that where the Attorney General of Illinois, in that case acting for the Director of Trade and Commerce of Illinois, had instituted a receivership action against a corporation, a creditor of the corporation could not thereafter maintain a separate action against that corporation because the action by the Attorney General was “another suit pending between the same parties for the same cause, within the meaning of par. (d), sec. 48, of the Civil Practice Act, Ill. State Bar Stats. 1935, ch. 110, ¶ 176; Jones Ill. Stats. Ann. 104.048.” Under the Civil Practice Act currently in effect, section 48(1) (c) provides for involuntary dismissal or other appropriate relief where there is another action pending between the same parties for the same cause. (Ill. Rev. Stat. 1971, ch. 110, § 48(1) (c).) In view of the foregoing, we hold here that the action filed by the Attorney General barred plaintiff from thereafter maintaining the same action against the defendants.

The Attorney General’s suit, pending when plaintiff filed his original complaint, resulted in a judgment for defendants after a 5-day trial on the merits. Plaintiff now seeks to bring an action based on facts that are identical to those already litigated in the People’s suit. Both actions allege the same violations against the same defendants. Moreover, both actions are civil proceedings in nature; thus the same quantum of proof is required in both suits.

In our opinion, a defendant need stand trial only once on the question of whether his practices violate the Illinois Antitrust Act, provided that action is prosecuted by the Attorney General of the State of Illinois. Our ruling is based upon the policy of discouraging a multiplicity of suits— of protecting the defendant from oppression, from the grievance of double vexation for the same cause. (Leonard v. Bye (1935), 361 Ill. 185, 197 N.E. 546.) Since the defendants’ conduct passed judicial scrutiny in the action instituted by the Attorney General, the defendants should not be required to defend against the same allegations of antitrust violations.

The order of the circuit court is affirmed.

Affirmed.

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

       Ill. Rev. Stat. 1971, ch. 38, § 60—1 et seq.