author: Mr. PRESIDING JUSTICE McNAMARA

text:
      In re Estate of Lambert J. Pomeroy, Deceased—(Rose Kirk, Claimant-Appellant, v. Estate of Lambert J. Pomeroy, Respondent-Appellee.)
    (No. 59105;
    First District (3rd Division)
    August 1, 1974.

      Marvin L. Herman and Burton F. Natarus, both of Chicago (Levin & Berger, of counsel), for appellant.
    John L. Flynn and Emmett J. Galvin, both of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Claimant, Rose Kirk, appeals from an order of the circuit court of Cook County dismissing her claim against the estate of Lambert J. Pomeroy. On January 13, 1972, claimant filed the claim seeking to recover payment for services performed for the decedent. The claimant was employed by the decedent as a housekeeper from October 1966 until his death in April 1971. In addition to room and board, the claimant was paid a weekly salary of $85.00. The salary was subsequently raised to $100 per week. A hearing without a jury was held on the claim. At die close of claimant’s case, the respondent moved under section 64(5) of the Civil Practice Act to dismiss the claim, and the trial court granted respondent’s motion.

The claim, after claimant abandoned one count, alleged two alternative theories of recovery. One count was that the claimant had an express contract with the decedent whereby, in consideration of services to be performed by her, he agreed to direct his son to purchase a $50,000 certificate of deposit for her. The other count charged that claimant performed services for decedent in consideration of his implied promises to pay her the reasonable value thereof.

Randolph Pomeroy, decedent’s son, was called as an adverse witness under section 60 of the Civil Practice Act. He testified that 11 days before decedent died, the decedent said that he wanted to give the claimant $25,000 or $50,000 and instructed him to buy the claimant a $50,000 certificate of deposit after his death. The witness told decedent he would do so, but did not comply.

The claimant testified that on the date of decedent’s death Randolph told her that he would do what his father said, and that she should not worry. The claimant told the son that when decedent’s estate was settled, he should purchase the $50,000 certificate of deposit in her daughter’s name. About 4 weeks later, the claimant repeated the request to the son, who then told her not to hold her breath as everything had been left in trust to his mother.

Louise Bates, a friend of the claimant, testified that claimant bathed the decedent, cooked for him, fed him, and did the shopping. According to the witness, the claimant worked around the clock, attentive to the decedent’s requests. As a result, the claimant and the decedent developed a very close relationship. The decedent told Louise Bates that he was unable to employ another housekeeper for less than $38.00 a day. Because he was unwilling to pay that much, he said he was going to leave the claimant a certificate of deposit. He would not leave it in his will because its value would be reduced by taxes. He told another person in the presence of the witness that he would see that claimant was taken care of for life. Louise Bates also testified that decedent said his son would comply with his instructions in purchasing a certificate of deposit for claimant.

Over respondent’s objection, Robert Wolf testified as an expert witness. He was employed as a field inspector for the State of Illinois, Department of Labor, Division of Private Employment Agencies, which regulates nurses’ registries and domestic employment agencies. In his opinion a woman performing similar services as claimant would earn $300 to $350 per week at prevailing rates. On cross-examination, he testified that he had never worked for an employment agency, and that his testimony was not based upon any research conducted by him.

Ramona Schultz, a bank vice-president, testified that the decedent telephoned the bank in 1970 for information relative to the bank’s interest rates. After a personal meeting, the decedent purchased a $100,000 certificate of deposit. Decedent thereafter requested the witness to type some checks for him, and she, for 5 dollars a visit, performed the task each Wednesday afternoon until decedent’s death. Each week the witness typed a check to the claimant for $100.00. When she remarked that decedent should be deducting social security, the decedent stated that the claimant would not need social security because he intended to take care of her. (It appears undisputed that after decedent’s death the respondent estate filed social security returns on claimant’s behalf and paid both decedent’s and claimant’s shares, the latter figure amounting to $1032.33.)

Decedent once asked Ramona Schultz’ opinion as to the advisability of placing a $50,000 certificate of deposit in the claimant’s name. The witness advised him to indicate such an intent in his will, but the decedent responded that the government would take most of it. He then told the witness that he had instructed his son to purchase a C.D., and he was sure his son would do it.

Ramona Schultz further testified that on Christmas 1970 the decedent and claimant were her guests for dinner. Decedent, in the presence of claimant, told the witness that he would see to it that the claimant would never want. The witness urged decedent to reduce his intention to writing. Decedent then said to claimant that if she would stay with him, she would not have a thing to worry about. The claimant replied that decedent knew she would never leave him. In February 1971, Ramona Schultz again told decedent that if he wanted to leave claimant anything, he “should make it legal.” Decedent replied that he wanted claimant to have a $50,000 C.D., but repeated his fear of the government getting too much from him.

Cleveland Boyd, decedent’s yard man and chauffeur, testified that decedent stated that he wanted the claimant to have a $50,000 C.D. after his death. Decedent also told Boyd that he would leave word with his son to carry out his wishes.

Betty Schofield, a neighbor, testified that she observed the decedent and claimant about once a week. The claimant took good care of decedent especially in preparing and serving Iris meals. In 1967, the decedent told the witness that he was going to take care of the claimant so that she would not have to work again for anyone. In 1970 or 1971, decedent told Betty Schofield that the claimant would receive a $50,000 C.D. after his death. When the witness suggested a provision in his wiH, the decedent mentioned tax problems and said that he had instructed his son to take care of it.

In cases tried without a jury, the trial judge, in deciding defendant’s motion for judgment at the close of plaintiff’s case, shall pass on the credibility of witnesses and consider the weight and quality of the evidence. (M.F.M. Corp. v. Cullerton (1973), 16 Ill.App.3d 681, 306 N.E.2d 505; Allfree v. Estate of Rosenthal (1969), 113 Ill.App.2d 90, 251 N.E.2d 792.) On appeal, in such cases, the sole issue becomes whether the trial court’s decision is contrary to the manifest weight of evidence. (De Bello v. Checker Taxi Co. (1972), 8 Ill.App.3d 401, 290 N.E.2d 367.) When sitting without a juiy in such cases, a Rial court must not consider the evidence in a light most favorable to plaintiff, but must weigh the evidence including any evidence favorable to defendant. Hawthorn Mellody Farms Dairy, Inc. v. Rosenberg (1973), 11 Ill.App.3d 739, 297 N.E.2d 649.

Claims against an estate shaU not be permitted to prevail except upon clear and convincing proof, and the evidence pertaining thereto must be carefuHy scrutinized. (In re Estate of Heyder (1965), 62 Ill.App.2d 318, 210 N.E.2d 619.) An express conRact may be proved by an actual agreement, by the express words used by the parties, and also by circumstantial evidence. (Rush v. Estate of Rush (1960), 27 Ill.App.2d 242, 169 N.E.2d 538.) A court should enforce an alleged contract and order a distribution of the decedent’s estate different from that set forth in a validly executed will only after the contract’s existence and terms have been proved by clear, explicit and convincing evidence which leaves no reasonable doubt that (1) the contract was made; and (2) that there was a meeting of the minds as to all its terms. In re Estate of McLaughlin (1971), 1 Ill.App.3d 940, 274 N.E.2d 618.

Under the foregoing criteria, the order of the trial court dismissing the claim was not contrary to the manifest weight of the evidence. The record does not disclose the clear and convincing testimony necessary to establish the existence of an express contract. Indeed, there appears to be no evidence of a meeting of the minds between the decedent and claimant resulting in a direct, positive agreement, other than for the wages and benefits actually received by claimant. Several witnesses testified as to having conversations with the decedent in which he stated that the claimant would be taken care of for life, and that she would never want for anything. The witnesses also testified that decedent told them that he wished to have his son purchase a $50,000 certificate of deposit for claimant after his death. Decedent’s son corroborated this testimony. However, that evidence was insufficient to establish the existence and terms of a contract between the claimant and the decedent. The strongest testimony favorable to the existence of a contract came from Ramona Schultz and concerned the conversation she had with decedent after Christmas dinner in 1970. At that time, decedent stated that if the claimant would stay with him, she would not have a thing to worry about. The claimant then stated that decedent knew she would never leave him. The trial court properly found that such a conversation did not establish a contract. The evidence must establish a definite contract based upon a consideration that claimant performed referable to that contract and to which decedent considered himself bound. The present claim appears to be based upon a unilateral expression of a future desire or intent of the decedent, uncompleted at the time of his death, and without mutuality on the part of the claimant. (Greenwood v. Commercial National Bank of Peoria (1955), 7 Ill.2d 436, 130 N.E.2d 753; In re Estate of Heyder (1965), 62 Ill.App.2d 318, 210 N.E.2d 619.) We believe it significant that there was no change in claimant’s position either before or after the Christmas conversation. (See Stephens v. Collison (1924), 313 Ill. 365, 145 N.E. 81; In re Estate of Niehaus (1950), 341 Ill.App. 454, 94 N.E.2d 525.) We also observe that the decedent continually spumed advice to get legal counsel and to place his expression of future intention as to claimant in his will. Claimant’s claim conceded that she was paid $85.00 to $100.00 per week plus room and board throughout her several years of employment by the decedent. Decedent’s statements to the various witnesses amounted to nothing more than declarations of testamentary intent, and the evidence did not establish the existence and terms of any other contract between the parties.

Cases cited by claimant in support of her argument are clearly distinguishable from the instant case. In Willis v. Zorger (1913), 258 Ill. 574, 101 N.E. 963, there was clear and convincing evidence of an oral contract between a bachelor decedent and his claimant nephew to convey a farm to the latter, who had worked the farm for 40 years. In Wessel v. Eilenberger (1954), 2 Ill.2d 522, 119 N.E.2d 207, the court had evidence that the decedent expressly acknowledged the existence of an express contract to convey a farm to the plaintiff, and that the plaintiff had changed her position by moving to the farm. Likewise, in Jatcko v. Hoppe (1955), 7 Ill.2d 479, 131 N.E.2d 84, the evidence revealed the existence of an oral contract to convey real property to plaintiffs, who had moved on to the property and made improvements.

Claimant’s second contention is that the trial court erred in not considering or allowing her claim, pursuant to her alternative theory of recovery, for the reasonable value of services under an implied contract. It appears that claimant proceeded at trial solely on her theory of an the trial court did not err in not allowing claimant the value of her services pursuant to an implied contract.

Where no family relationship exists between the parties, and one accepts and retains another’s services, which were rendered at his request and which he had no reason to suppose were gratuitous, the law will imply a contract for such services in such an amount as they are reasonably worth. (Floyd v. Estate of Smith (1943), 320 Ill.App. 171, 50 N.E.2d 254; In re Estate of Mallas (1968), 100 Ill.App.2d 88, 241 N.E.2d 482.) In the present case, the services were not rendered gratuitously. Claimant was employed by decedent at a weekly salary of $85.00 per week, plus room and board. Sometime during the employment, the salary was increased to $100.00 per week. Since an express contract existed between the parties for the value of claimant’s services, we are unable to rewrite that contract to fix additional compensation for her. Although claimant suggests in this argument that there was no proof that she was paid the weekly salary, both the pleadings and the evidence reveal otherwise. The claim itself alleged that she was paid approximately $85.00 to $100.00 per week plus room and board. Ramona Schultz testified that claimant was paid $100.00 per week, and Louise Bates testified that she saw the claimant cash several checks.

For the reasons stated, the order of the circuit court of Cook County dismissing claimant’s claim is affirmed.

Order affirmed.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Gong Hee Gee et al., Plaintiffs-Appellees, v. Judith Davidson, Defendant-Appellant.
    (No. 59444;
    First District (1st Division)
    August 5, 1974.

      Shulman and Spivack, of Chicago (Norman E. Goldman, of counsel), for appellant.
    Lisco and Field, of Chicago (Barry L. Kroll and Robert F. Lisco, of counsel), for appellees.
   PER CURIAM.

BURKE, J., took no part.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lacey Loggins, Defendant-Appellant.
    (No. 58753;
    First District (2nd Division)
    June 25, 1974.

      Rehearing denied August 7, 1974.

      LEIGHTON, J., took no part.

      Robert L. Edwards, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM:

After a bench trial, defendant was found guilty of the offense of voluntary manslaughter, in violation of section 9 — 2(b) of the Criminal Code, and was sentenced to a term of 3 years to 10 years. (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(b).) He appeals, contending that he was not proven guilty beyond a reasonable doubt, that he was denied a fair trial by certain rulings of the trial court, and that the findings of guilt was based upon irrelevant and prejudicial evidence.

On October 30, 1971, Elmer Russell was shot by the defendant and later died of the wound so inflicted. The indictment charged defendant with the offense of voluntary manslaughter, in that he “shot and killed Elmer Russell with a shotgun, unreasonably believing at the time of the killing that the circumstances were such as to justify the killing * * Defendant maintained at trial that he had killed the deceased while under the reasonable, although mistaken, belief that the deceased had been armed with a handgun and had intended to harm him.

Robert Norvall, aged 23, testified for the People that on October 30, 1971, he went to a building on East 48th Street in Chicago about 9 P.M. to pick up his younger brother, Bernard, who was in attendance at a party. An argument developed between Robert Norvall and a 17-year-old female, Fabian Carter, concerning an improper advance made by him upon her; the argument continued outside the building where Carter drew a handgun on Norvall. Robert Norvall proceeded to his home a short distance away, and on the way he met Elmer Russell, the deceased, who had apparently witnessed the incident. On their return to the building in question, Norvall and Russell discussed “getting drunk”, and Russell also told Norvall that he would handle the matter between Nor-vall and the girl. Russell told Norvall to stand away; Russell walked toward Fabian Carter and a group of youths which had gathered outside the building; a shot was fired, and Russell fell to the street. Robert Norvall noticed nothing unusual about Russell at the time he approached the crowd; he did not see the crowd back away as Russell approached; and, although Russell had been drinking that evening, Norvall observed him with no liquor bottle at that time. Robert NorvaH thereupon fled the scene. Elmer Russell was 42 years of age at the time of his death.

Chicago Police Officer Haywood Liggett investigated the shooting. A search of the area and of the deceased’s clothing disclosed no weapon or other like object; although 8 to 10 police vehicles arrived at the scene, the officer did not know whether any of the other officers found a weapon or a liquor bottle upon a search of the scene.

Bernard NorvaH, aged 14, testified for the People that his brother arrived at the party in question to pick him up and an argument ensued between his brother and a female named Fabian. His brother left the building and Fabian foHowed him; Fabian drew a handgun on his brother; and Elmer RusseH, who had been outside, told his brother to stay back and approached Fabian who was among a group of seven or eight youths assembled outside the building. When RusseH approached to within 8 to 15 feet of the crowd, the defendant walked out of the building with a sawed-off shotgun. While walking toward the crowd, RusseH held his hand inside his coat; people in the crowd shouted: “Shoot before he shoots you”; and the defendant fired the shotgun at RusseH. Prior to the shooting Russell did not move the hand held inside the coat, and nothing was said between Russell and the defendant. The witness had not seen his brother or RusseH with a weapon that evening, nor had he seen Russell with a liquor bottle.

Clifton Longs, aged 19, intially testified for the People but was later made a court’s witness upon request by the prosecutor. Longs testified that he had attended the party in question with the defendant, Larry Freeman, Fabian Carter, and another person. He testified that Elmer Russell had approached a crowd which had gathered in front of the building, and that he (Longs) heard a shot emanate from a shotgun held by the defendant. After the shooting, the defendant and the witness went to a vacant building frequented by people in the area, and the witness testified that he placed nothing into the building. The prosecutor then represented to the court that Longs had previously told him that he (Longs) had placed the shotgun into the building and later removed it. Thereupon, at the request of the prosecutor, the court made Longs a court’s witness. It was then educed from the witness that the shotgun and a handgun, the latter of which had been in the possession of Larry Freeman on that evening, had been hidden in the vacant building after the shooting and had thereafter been removed from the building to the witness’ home. A defense objection was raised to the testimony concerning the handgun and was denied by the court, subject to the People’s introduction of evidence tying that weapon to the case. Neither the witness nor the defendant had had words with Elmer RusseH prior to the shooting, nor had the witness known Russell prior to the shooting. After the shooting had occurred and after the shotgun and the handgun had been hidden, the witness, the defendant, and the three others who had arrived together at the party proceeded to another party.

Clifton Longs further stated that he had given a statement to the police after the shooting, apparently in writing and signed by him. A defense objection to Longs’ testimony was based upon the failure of the People to furnish a copy of that statement to the defendant upon the latter’s request in a pretrial discovery motion. The objection was denied after the People represented to the court that the statement was not in the People’s file and after it was also determined that the statement was not in the police file in the case.

Fabian Carter, aged 17, testified for the People that she had had an argument at the party with Robert Norvall because he had made improper advances toward her; that she and Norvall had gone downstairs where she had pointed the handgun at him, which weapon she had received from Larry Freeman; and that, after that incident, she had heard a gunshot from behind her. She had seen no weapon in the defendant’s hands, whom she had known prior to the party.

Tony Hackman, aged 19, testified for the People that he had attended the party in question and had observed Elmer Russell walk up to Larry Freeman outside the building, Russell holding his hand inside his jacket. Freeman at that time was in possession of a handgun, whereas the witness did not see Russell with a gun; the crowd of people which had gathered outside the building was moving away from Russell as he approached, and the witness heard shouts from the crowd that Freeman should shoot “because he had a gun.” The witness did not see defendant prior to the shooting.

Chicago Police Officer Timothy Tidmarsh testified for the People that he investigated the shooting and interviewed several witnesses at the scene, among whom were Longs and Robert Norvall. The witness then recovered a shotgun, used by defendant on the night in question, and a handgun, used by Freeman and Carter on the night in question, from the residence of Clifton Longs, along with shotgun shells and several other types of munitions. The officer also secured custody of defendant in Memphis, Tennessee, on December 30, 1971, where the witness had gone to effect defendant’s extradition to Illinois. Defendant was advised of his constitutional rights and made a statement to the officer that, at the time of the shooting, the defendant thought that Russell was armed but that the defendant did not see a gun in his possession. An objection to the officer’s testimony concerning the statement, on the grounds that the statement did not appear on the People’s answer to the defendant’s pretrial discovery motion, was denied. Questions asked of the officer by the defense (whether defendant had “voluntarily” turned himself over to the Memphis police and whether the officer had trouble in bringing defendant back to Illinois) were objected to by the People and the objections were sustained.

Defendant’s mother testified on defendant’s behalf that she had been visited by the police on October 31, 1971, relative to her son’s having shot someone, after which she had sent her son by bus to Memphis (to her father’s house there). The witness later wrote to defendant and advised him that the police had returned to the apartment and were looking for him. Objections by the People to defense questions (whether the defendant had protested the witness’ sending him to Tennessee and whether he had “voluntarily” left Chicago) were sustained.

Defendant testified in his own behalf that he was 18 years of age and had attended the party in question with Freeman, Longs, Carter, and another youth; and that he did not recall seeing the Norvall brothers at the party. The defendant held no conversation with either Robert Norvall or Elmer Russell that night, nor did he know whether words were exchanged between Robert Norvall and Fabian Carter. He testified that area teenagers were causing trouble with defendant and his companions, and that he and Longs went to Longs’ residence where they secured a shotgun. Upon their return to the party, they learned that the teenagers had since left; the defendant then took the shotgun from Longs, and the two youths left the party to return the weapon to the Longs’ apartment. Longs and the defendant met Larry Freeman in the vestibule of the building where the party was being held; a crowd of persons from the party had gathered outside the building. The defendant held no conversation with anyone at that time nor noticed anything in the hands of Longs or Freeman. Elmer Russell, whom the defendant had never seen and with whom he had had no contact in the past, walked toward the building, wearing a suitcoat and holding his hand inside his trouser waistband. As Russell approached, the crowd backed away; Russell moved his hand in such manner as to indicate to defendant that he had a gun, and the defendant saw what he thought was a portion of a gun in Russell’s possession. The defendant thought Russell was going to kill him, and he fired the shotgun at Russell for his own protection. The defendant testified that he had first noticed Russell when he (defendant) was inside the vestibule of the building and Russell was outside the building, about 4 feet away. After the shooting, the shotgun was hidden in the vacant building, and the defendant, Longs, and the others went to another party. A question by defense counsel (why defendant did not notify the police immediately after the shooting) was objected to by the People and the objection was sustained, the court noting that the defendant’s mother had placed him on a bus. Defendant also testified that he turned himself over to the Memphis police, because he knew that he was wanted and because he wished to turn himself in. The defendant stated that he gave no statement to the police at the time.

The shotgun and the shotgun shells retrieved by the police from Longs’ residence were admitted into evidence; the handgun and the other munitions found in Longs’ residence were denied admission into evidence. Defendant was found guilty of voluntary manslaughter and, after a subsequent denial of defendant’s motion for acquittal and after a hearing in aggravation and mitigation, he was sentenced to a term of 3 years to 10 years in the penitentiary.

Defendant first contends that he was not proven guilty beyond a reasonable doubt because the People failed to prove that his contention (that he had acted under an “apparent imminent threat of death or great bodily harm” which justified the use of force for his own protection) was an unreasonable belief. He argues that the trial court, rather than considering the reasonableness of his belief under the circumstances confronting him, concluded that the deceased was not armed at the time of the shooting and considered that conclusion alone in arriving at the finding of guilt. We disagree.

The foregoing summary of the evidence demonstrates that the People adduced sufficient evidence from which the trier of fact could have found that the defendant had committed the offense of voluntary manslaughter beyond a reasonable doubt, in that he had entertained the unreasonable belief that at the time of the shooting the circumstances justified the taking of the life of the deceased in self-defense, in violation of section 9 — 2(b) of the Criminal Code. The defendant was in possession of a sawed-off shotgun during a party; a disturbance arose between a friend of his and a friend of the deceased; a weapon was drawn during that disturbance; the deceased intervened in the disturbance and approached a crowd of persons which included the defendant and those involved in the disturbance; the deceased approached the crowd with his hand in his waistband but made no motions or gestures with that hand; persons in the crowd were urging that shots be fired; and the deceased was shot by the defendant. The deceased was found to have been carrying no gun or other object which could have been mistaken for a gun; and the defendant told the police that, although he thought the deceased was armed, he saw no weapon. A question of fact was presented for the trial court.

Whether defendant’s evidence established that he reasonably acted in self-defense, in light of the circumstances confronting him, was likewise a question for the trier of fact. (People v. Jordan, 18 Ill.2d 489, 165 N.E. 2d 296.) The trial court specifically commented that he found the defendant’s version of the incident incredible; and he further commented upon the “immaturity” of the defendant and of thei persons in the crowd who had exhorted that shots be fired without regard to whether the deceased was armed, thereby in essence finding that defendant’s actions and his alleged belief that he was acting in self-defense were unreasonable.

The fact that no gun or other object capable of being mistaken for a gun was found in the deceased’s possession militates against defendant’s position of self-defense; defendant himself told the police officer that he saw no gun. Further, the reasonableness of defendant’s actions must be viewed in light of the evidence that a crowd of youths were urging that shots be fired, that the deceased was approaching Larry Freeman prior to the shooting, that the defendant did not notice the deceased until the deceased was about 4 feet away, and that the defendant and the deceased were total strangers and had had no prior contact before the shooting.

Defendant seeks to support his position that he reasonably thought that the deceased was armed by alluding to the evidence that Robert Norvall had returned to his home after he had been confronted with a gun by Fabian Carter, where he could have procured a gun and could have given it to the deceased, and by suggesting that someone in the large crowd, which had gathered at the scene after the shooting, could have removed the weapon from the deceased’s body or from the area. But defendant testified that he had known nothing of the disturbance between Robert Norvall and Carter, thereby negating any reason for his alleged suspicion that Norvall had obtained a gun. The conclusions arrived at by defendant from the evidence alluded to in this regard are based upon conjecture, unsupported by fact.

Defendant also argues that the trial court in arriving at the finding of guilty improperly considered solely the conclusion that the deceased had not been armed. Defendant’s argument in this regard arises from the specific finding of the trial court that the deceased had not been armed, which finding arose out of the issue of fact created by the evidence adduced by the People and by the defendant as to whether the deceased was in fact armed. However, in the same finding the court also noted that it was “more reasonable” to believe that, under the circumstances, it was “immature” of the defendant to have secured a shotgun and also to have acted upon the exhortation of another “immature” person that the deceased was armed, without regard to whether such was in fact the case. The trial court’s finding of guilt was not based solely upon the conclusion that the deceased was unarmed, but was also based upon the court’s finding as to the reasonableness of the defendant’s belief and actions under the circumstances.

The cases cited by defendant in support of his position are not applicable to the instant circumstances: People v. Organ, 345 Ill. 339, 178 N.E. 73; People v. Brumbeloe, 97 Ill.App.2d 370, 240 N.E.2d 150; People v. Bush, 414 Ill. 441, 111 N.E.2d 326.

Defendant next contends that he was denied a fair trial by rufings of the trial court as to certain evidence. He argues that the court was in error in failing to impose sanctions upon the People by striking the testimony of Clifton Longs and by striking the testimony of Officer Tidmarsh concerning the statement made by defendant that he saw the deceased with no gun, in light of the People’s faffine to provide the defendant with Longs’ statement and with the defendant’s statement as requested by defendant’s pretrial discovery motion pursuant to Supreme Court Rule 412. (50 Ill.2d R. 412.)

Rule 412 requires that the People provide a defendant with such information as defendant here requested. The Rule further provides that the People shaU make a diligent good-faith effort to discover such material and directs the trial court to require any appropriate governmental body within the court’s control to make such material avafiable.

Clifton Longs testified that he had made and signed a statement while in police custody. On cross-examination, Officer Tidmarsh admitted that Longs had made a statement to him which had been recorded by a court reporter, typed up, and signed by Longs. But the prosecutor represented that he had no such statement in his file, but had only the statements of the Norvall brothers; the court also determined of the pofice officer in attendance at the trial that the pohce file contained no such statement. Notwithstanding the possible advantages such statement might have provided relative to whether Longs should have been made a court’s witness or relative to the impeachment of Longs, the trial court did not commit error in faffing to strike the witnesses’ testimony as requested by defendant. Under the circumstances, the procedures followed by the People and the police, and the determination made by the trial court, substantially complied with the requirements of Rule 412. Even were the requirements of Rule 412 to be regarded as not having been substantially complied with, there is no showing of consequential prejudice and the evidence of guilt is overwhelming.

Defendant also argues that the trial court committed error in refusing to allow the introduction of testimony as to whether the defendant had “voluntarily” left Chicago, had turned himself over to the Memphis police and had returned to Chicago, and of why he had not reported the incident to the police after its occurrence. He states that such evidence was necessary to offset the negative inference which generally arises from the fact that an accused has fled the jurisdiction.

Several of the questions asked of the respective witnesses in this regard called for conclusions on their part and objections thereto were properly sustained. Nevertheless, the trial court did permit the introduction of evidence concerning whether defendant was forced to go to Memphis.

Defendant also argues that the trial court improperly failed to strike Officer Tidmarsh’s testimony relative to the statement made to him by defendant that the deceased had no gun in his possession at the time of the shooting. As represented by the prosecutor, and as the record affirmatively discloses, the People’s answer to tire defendant’s pretrial discovery motion contains a reference to the defendant’s statement in question. The trial court committed no error in either of the rulings relative to the production of the statements in question.

The final contention raised by defendant is that the trial court improperly allowed into evidence testimony relating to the handgun observed in the possession of Freeman and Carter on the night of the shooting, without the introduction of evidence tying that weapon to the case; he also contends in this regard that the court improperly relied upon such evidence in arriving at the finding of guilt, as is allegedly evidenced by the court’s comments at the conclusion of the case relating to the presence of guns in the instant situation and to the use of guns in society.

The trial court permitted the testimony concerning the handgun in question, which weapon was introduced for identification as a People’s exhibit, contingent upon the introduction of evidence by the People to tie that weapon to the case. At the conclusion of the case, the court refused to allow that weapon and all other munitions introduced for identification, other than the shotgun and the shotgun shells, to be introduced into evidence. Defendant’s contention in this regard is consequently without foundation, and the cases cited by him in support of his position are without application to the case at bar: People v. Miller, 40 Ill.2d 154, 238 N.E.2d 407; People v. Kimbrough, 131 Ill.App.2d 36, 266 N.E.2d 431.

The argument is also raised that the trial court considered such evidence in arriving at a determination of guilt. The comments made by the court prior to the finding of guilt demonstrate that the court was concerned primarily with the defendant, with his possession of the shotgun, and with the firing of the shotgun while defendant was being exhorted to do so by a person in the crowd. The comments made by the court relative to the presence of weapons at the scene and to the use of weapons in society were general impressions of the court, and there appears no basis for a conclusion that such had a bearing upon or in any manner affected the trial court’s determination of guilt in this case.

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

Judgment affirmed.

LEIGHTON, J., took no part in the consideration or decision of this case.


author: Mr. PRESIDING JUSTICE HAYES

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Price, Defendant-Appellant.
    (No. 56281;
    First District (2nd Division)
    June 28, 1974.

      Rehearing denied August 26, 1974.

      Charles A. Boyle, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jonathan Gilbert, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE HAYES

delivered the opinion of the court:

On the night of 17 February 1970, a number of men broke into the apartment of Albert and Clara Jenkins. Mr. Jenkins was not at home at the time; however, Mrs. Jenkins was present and was beaten by one of the intruders; she died, as a result, 3 days later.

On 21 May 1970, Lee Arthur Hodges, Johnny Price, and Melvin Battie were jointly indicted under indictment number 70-1408 for the murder of Clara Jenkins (Ill. Rev. Stat. 1969, ch. 38, par. 9 — l(a)2, 9 — l(a)3). On 20 April 1971, Johnny Price (hereafter defendant) was severed from his co-indictees for trial. After a bench trial, a jury having been waived, defendant was found guilty of murder and sentenced to imprisonment for a term of years not less than 30 nor more than 60. Defendant appeals that conviction.

Defendant’s first contention on appeal is that the testimony of the accomplice witnesses (Hodges and Battie) was uncorroborated, discredited, and contradicted, and, therefore, did not establish his guilt beyond a reasonable doubt. In order to consider this contention, it is necessary to examine all the evidence adduced at the defendant’s trial.

Lee Arthur Hodges, defendant’s co-indictee, testified for the State. He indicated that, in exchange for his testimony, he would be allowed to plead guilty to a lesser offense than murder. Hodges’ narrative started at 11 A.M. on 17 February 1970. At that time he went to a grocery store on Roosevelt Road at California Avenue (2800 West) with his cousin, Melvin Battie, the other co-indictee who also testified for the State. There Hodges met defendant, who stated that he needed help to “rip off” a place and who threatened Hodges physically if he did not promise to help. Hodges testified that he refused because, at that time, he was on parole from St. Charles School for Boys. The witness then left the store, but stated that he had to return a short time later because he had forgotten to buy a newspaper. Again defendant allegedly threatened him, saying that he and some other boys would “get” him. Hodges testified that he believed defendant to be a member of the Vice Lords street gang, and that these were probably the boys to whom defendant was referring. At 11 P.M. that night, Hodges and Battie again returned to the grocery store to buy some T.V. snacks, and they again encountered defendant. This time defendant followed the cousins home, again asking for their assistance. When the witness again refused, defendant allegedly pulled a knife on him, grabbed him by the collar, and held the knife to his throat. Defendant again threatened the witness, if the witness did not agree to help him. After discussing the problem with his cousin, Hodges testified that he agreed to help defendant, since he feared for the safety of his mother and sisters. Hodges then accompanied defendant, along with Battie, to 1219 Washtenaw Street (2700 West and just South of Roosevelt Road, and the address of the Jenkins apartment). He waited outside while defendant and Battie went up the stairs. Defendant knocked on the door of the Jenkins apartment, stating that he was looking for a Mr. Jenkins. According to Hodges, when defendant found that Jenkins was not there, defendant kicked in the door. At this juncture, Hodges ran from the scene to tell his mother (who, with Hodges, lived across the street), but went back out of fear- of what defendant might do to his cousin, Battie. When he returned, defendant and Battie were calling him. According to the witness, defendant had a lady on the bed with a coat over her face. Hodges stated that he grabbed a small T.V. set from the bedroom and joined his cousin in the living room, who was working on a larger T.V. set. He put his small set on the larger set, and both men together carried the two sets down the stairs and out of the building. Hodges stated that they called to defendant before they left the building, but that he did not answer. They stored the T.V. sets in a vacant apartment in Hodges’ mother’s building, on the floor above the mother’s apartment. Twenty or 30 minutes later, defendant allegedly arrived in the Hodges’ kitchen with blood on his sleeve. According to Hodges, when he asked about the blood, defendant answered that he had to “keep her quiet” and gave the same response to Battie upon Bathe’s subsequent inquiry. At this point defendant allegedly warned Hodges that he would “fuck him up” if he (Hodges) “tricked on him.” Hodges then stated that, on the following day, he sold the two television sets. Finally, he testified that, when he was arrested, he had failed to tell investigating Detective Sandberg about how defendant had threatened him.

On cross-examination, Hodges stated that he had been in the Jenkins apartment before the night of the incident. In fact, Hodges admitted that he had originally sold one of the stolen T.V. sets to Mr. Jenkins. He in turn had originally purchased it from a “dope fiend.” The witness stated that he and Battie split the $70 received from the resale of the T.V. sets; and he admitted that he was unemployed at the time of the incident. Hodges stated that he had never been to the victim’s apartment. Finally, for some unknown reason, the witness contradicted his own direct testimony and stated expressly that he had been promised nothing for his testimony.

The next State witness was Melvin Battie, the other co-indictee and the cousin of Lee Arthur Hodges. He also related that he was to be allowed to plead guilty to the lesser offense of armed robbery in exchange for his testimony. As with his cousin, Battie’s narrative of the events of 17 February 1970 began at 11 A.M. outside the grocery store on Roosevelt Road. At that time, he and his cousin met defendant, and Hodges had a conversation with him which the witness was unable to hear. The witness stated that he and his cousin returned to the store five minutes later and, again, Hodges and defendant had a conversation which the witness could not hear. After spending the day in unrelated activities, the two cousins again returned to the same grocery store at 11:30 P.M. Upon leaving, they were allegedly followed by defendant, who asked Hodges if he was “going to help him do that", to which Hodges responded “no". The witness stated that defendant then pushed Hodges into a hallway, pulled a knife on him, and grabbed him by the collar. Hodges then approached the witness and stated that defendant had threatened to shoot up his (Hodges’) house and burn it down if Hodges did not help him rob a certain place. The witness stated that he thought they should help defendant with the robbery, since, in Hodges’ opinion, defendant was serious about his threats. Battie then stated that he and his cousin accompanied defendant to the Jenkins apartment; that defendant kicked down the door after Mrs. Jenkins stated that her husband was not at home; that Hodges was acting as a look-out down the stairs; that they had to call two or three times before he came up the staffs; that they went into the apartment, and Hodges took a small T.V. set from the victim’s bedroom while he (the witness) grabbed a larger one from the living room; that he and Hodges called for defendant as they were leaving, but defendant did not answer; and that he and his cousin then stored the T.V. sets in a vacant apartment in his cousin’s building. According to Battie, defendant arrived in the Hodges’ kitchen 30 minutes later with blood on his sleeve and a knife in his hand. The witness stated: that, when he inquired about the blood, defendant stated to him that he (defendant) had to bit tire lady to. “keep her quiet”, and defendant then threatened both him and his cousin if they said anything.

Under cross-examination, Battie admitted that he was also known by the name of Henry Jones, and he stated that he had never been to defendant’s house, and he did not recall his cousin borrowing a pair of pants from defendant. He stated that he was outside the hallway when defendant threatened his cousin in the hallway before the incident, and that he himself had not been threatened but went along because he did not want to see Hodges’ mother (his aunt) get hurt. The witness stated that defendant had held Mrs. Jenkins down on the bed with a coat over her head. He finally stated that he and his cousin shared in the proceeds of the sale of the stolen T.V. sets, and defendant got nothing.

Albert Jenkins, the victim’s husband, was called as a life and death witness by the State. According to his testimony, he left for work on the afternoon of 17 February 1970 and returned home at 3:30 A.M. on 18 February 1970. At that time he discovered his wife lying on the floor, her face swollen, her eyes closed, and able to speak only in a mumble. She was taken to a hospital and died 3 days later. When he examined the apartment, he discovered that two radios and two T.V. sets were missing.

Under cross-examination, it was revealed that Mrs. Jenkins was crippled and wore a brace at the time of the incident. Mr. Jenkins Stated that Hodges lived across the street from him and had been over to his home four or five times trying to sell him different things. He also indicated that Hodges was aware of the time at which he usually left for work. Finally, Mr. Jenkins stated that he had never seen defendant prior to defendant’s arrest.

Detective Richard Sandberg, a Chicago police officer assigned to investigate the murder of Clara Jenkins, testified that in his investigation he had questioned Lee Arthur Hodges. Hodges had made a statement to him in which he had implicated defendant, but had failed to mention that defendant had threatened him with a knife prior to the incident. Through Hodges’ statement, he was also able to recover the two television sets which Hodges, Battie, and Mr. Jenkins all identified as the ones which were taken in the robbery of the Jenkins apartment.

There was a stipulation that the cause of death was a traumatic sub-arachnoid cerebral hemorrhage, after which the State rested its case.

Annie Allen, defendant’s sister, testified on behalf of her brother. She stated that defendant had returned home from work around 6 P.M. on 17 February 1970. A short while later, Hodges and Battie had come over to borrow some pants. The witness stated that John Price, Sr., defendant’s father, and one Billy Carton were also present. At 7 P.M., Carton, Hodges, Battie, and defendant had left the house together. At 10:00 P.M., defendant had returned home with Carton, who was intoxicated. At this time the witness’ husband and father were present. Sometime before 11 P.M., defendant went to bed and did not leave home for the rest of that night. According to the witness, at midnight, Hodges and Battie reappeared; her father was present at this time. She stated that she had fixed them something to eat, but had had no conversation with them. They left a short while later.

John Price, Sr., defendant’s father, testified on behalf of his son. He stated that his son went to work the morning of 17 February 1970 and returned home at dinner time that evening. Soon afterward, Hodges and Battie appeared to borrow some pants, and left a short time later. The witness stated that his son and Billy Carton left also, but he was not sure that they left with Battie and Hodges. At any rate, defendant returned home at 9:30 or 10 P.M. along with Billy Carton, who was intoxicated. Defendant retired a short time later and the witness retired a short time after that. The witness did not substantiate his daughter’s account of Hodges’ and Battle’s midnight visit.

Defendant, Johnny Price, testified on his own behalf. He stated that he had been in the Army and had received an honorable discharge because of a speech impediment. On the day of 17 February 1970, he stated that, at 8 A.M., he left for work at General Metals, where he was a metal sorter; that, prior to the time he had been in the Army, he had punched a time card, but, since his discharge, he had been paid from his boss’ pocket; that on the day of the 17th he rode on a scrap truck with one Nathan Smith; that he worked with Smith until 4:30 P.M., stopping only for lunch at Roosevelt Road and Central Park Avenue (3600 West, and therefore 1 mile west of the grocery store at California Avenue); that, after work, he walked to Roosevelt Road and California Avenue with Smith and then went home at 6 P.M. According to defendant, Billy Carton came over a short time later, and, about 6:15 P.M., Hodges and Battie came over to borrow some pants. After talking for about a half hour, the defendant stated that he, Carton, Hodges, and Battie all walked to a grocery store at the corner of Roosevelt Road and California Avenue. The group remained at the grocery store until 8:45 P.M., at which time Carton departed for a tavern, and defendant walked Hodges and Battie to Hodges’ home so that Hodges could drop off the pants that he had borrowed. By this time, it was 9 P.M. and defendant stated that Hodges informed his mother that he (Hodges) was going back to Roosevelt Road. Upon leaving the Hodges’ home, Hodges and Battie walked by themselves across Washtenaw Avenue, surprising defendant, since this was not the direction from which they all had come. Defendant testified that he asked them where they were going and how long they would be gone; they answered that they were going “across the street” and that they would be “right on back.” Defendant allegedly waited 15 minutes in front of the Hodges’ apartment building for the two cousins to return and then gave up, returning by himself to Roosevelt Road and California Avenue where he re-joined Billy Carton. He later saw Hodges and Battie at around 10 P.M. as he was leaving a tavern with Carton, but he testified that he had no conversation with them. Defendant stated that he then returned home, had something to eat, and went to bed around 10:35 P.M. Defendant further testified that he met Hodges the next day, and Hodges asked him if he would like to buy a television set that he and his cousin had gotten from “an apartment” the night before; and, when defendant told Hodges that he was not interested in buying the television set, Hodges asked him if he would store “them” so that his (Hodges’) parents would not find out about them. Defendant declined, and Hodges tiren aUegedly threatened defendant if he would say anything. Defendant testified that he reacted to the threat by throwing Hodges up against a wall and warning him never to threaten him again. Finally, defendant testified that he had never met Mr. Jenkins before a bond hearing held in connection with the present case.

Nathan Smith testified for the defense. He stated that he had known defendant for four years. He testified that he was a truck driver for General Metals and that defendant sometimes rode with him on the truck. On 17 February 1970, defendant did ride the truck with the witness. At noon time, they stopped for lunch at Central Park Avenue and Roosevelt Road. The witness stated that he “brought a bottle”. They both worked until 4:30 P.M. Mr. Smith stated that defendant was with him all day.

Norman Varón, the owner of General Metals, and Sam Amalinsky, defendant’s foreman, both testified concerning the good general reputation for truth and veracity that defendant had in the community in which he lived and worked. Both witnesses aHuded to defendant’s speech impedíment, which sometimes made it hard for them to understand defendant.

The State called one Joe Anthony in rebuttal. He stated he was living with Mrs. Hodges (Lee Arthur Hodges’ mother) at the time of the incident. At 12 or 12:10 A.M. on the morning of 18 February 1970, defendant, Hodges, and Battie were in the Hodges’ kitchen. He was in a bedroom next to the kitchen and overheard a conversation among the three. Price aHegedly said: “Somebody is going to talk and I can’t afford to be locked up”. Battie responded: “No day like this, give me the knife”. According to the witness, defendant was wearing a blue jacket and blue pants.

Under cross-examination, Mr. Anthony stated that he had been living in the Hodges’ home for about a year at the time of the incident and was sort of a father to the Hodges’ children; in fact, three of the children were actuaHy his. He stated that he remembered the incident because it was a time when Melvin Battie was staying with the Hodgeses. Mr. Anthony could not remember what Hodges, Battie, or Mrs. Hodges was wearing at the time of the kitchen conversation.

OPINION

The State’s case rests on the testimony of Hodges and Battie. Mr. Anthony contributed corroboration as to one event in the chain of events related by Hodges and Battie. It was Hodges who first implicated defendant to investigating Officer Sandberg. The testimony of Mr. Jenkins points to Hodges and away from defendant as the likely con-ceiver and planner of the incident. This case, therefore, is one in which defendant has been convicted solely upon the practically uncorroborated testimony of two accomplice witnesses, each of whom was promised leniency by the State in return for his testimony. Of the two, Hodges emerges as the leader and Battie as the follower.

I

Hodges testified that he had met defendant in a store in the 2700 block of Roosevelt Road some time around 11 A.M. the morning of the incident, and that defendant threatened him if he did not promise to help “rip off” a certain place. Battie substantiated the fact of the meeting, but he admitted that he did not hear the conversation between Hodges and the defendant. Defendant, on the other hand, stated that he had worked all day and had not been near that store. This testimony was substantiated by Nathan Smith, who stated that he had worked with the defendant all day, and by the defendant’s father and sister, both' of whom stated that the defendant had gone to work on the 17th.

Hodges and Battie testified that the next time they had seen defendant was at 11 or 11:30 P.M. in the same store in which they had seen him 12 hours earlier. Defendant, his father, and his sister all testified that Hodges and Battie had come to the Price home shortly after 6 P.M., and just after defendant had arrived home from work; that Hodges had borrowed some pants; that defendant, Hodges, Battie, and Billy Carton had left the Price home a short while later; and that defendant had returned home at 10 P.M. and had retired about a half-hour later for the rest of the night.

II

We think that there are inconsistencies and improbabilities in the testimony of both Hodges and Battie which raise a reasonable doubt as to their veracity.

The knife which defendant allegedly carried on the night of the incident was a central element in the testimony of both Battie and Hodges. However, in his statement to Detective Sandberg, Hedges failed to mention that defendant had used a knife with which to threaten Hodges in order to induce him to help in the contemplated robbery. It seems strange also that, while defendant allegedly was brandishing a knife both before and after the incident, a knife was not used on the victim. Indeed, it seems that it would have been simpler for defendant to “keep her quiet” with the threat or thrust of a knife than to struggle with her to the point where he was not able to participate in the actual robbery which he allegedly planned.

Again, both Hodges and Battie stated that defendant had blood on his clothes when he appeared in the Hodges’ kitchen after the incident. However, Albert Jenkins, the victim’s husband, stated that, when he found his wife, her face was swollen and her eyes were closed; he did not mention the presence of any blood. In addition it was stipulated by both the prosecution and the defense that the cause of death was a “traumatic subarachnoid cerebral hemorrhage”, a condition which, by definition, is not necessarily accompanied by external bleeding.

Again, while Hodges and Battie purported to account for their participation in the incident on the sole basis of alleged threats by defendant and on their fear of him, they both felt free on the very next day to dispose of the T.V. sets taken in the robbery without giving defendant any part of the proceeds. Nor did they testify to any subsequent reaction on the part of the defendant. It is simply incredible that the alleged initiator and planner of the robbery, who allegedly took the trouble to coerce Hodges and Battie into participating in it and who is not alleged himself to have taken anything from the Jenkins apartment, should then, at the alleged kitchen meeting immediately after the robbery, have shown no interest whatever in the nature of the loot from the robbery or in the present whereabouts of the loot or in its subsequent disposition and the division of the proceeds.

Again, defendant, who allegedly planned the robbery, had never been to the victim’s apartment, according to Albert Jenkins, the victim’s husband. In fact, Jenkins stated that he had never seen the defendant prior to his arrest. However, Jenkins stated that Hodges lived across the street from him; he also stated that Hodges had been to his apartment many times and knew the time at which he left for work every day. Hodges himself admitted, under cross-examination, that he had originally sold Jenkins one of the two television sets which he had stolen the night of the robbery. Hodges’ proximity and familiarity with the victim’s apartment, coupled with his unemployment, indicate to us a good opportunity and motive to plan the robbery. By the same token, defendant’s unfamiliarity with the apartment and the neighborhood and his steady employment demonstrate little opportunity or motive.

III

In addition to the foregoing infirmities, we are confronted in this case with the ever-nagging problem of the weight which is to be accorded to the uncorroborated testimony of accomplice witnesses, who have been promised leniency by the State in return for their testimony. Our reservations regarding this type of testimony are well stated in People v. Hermans (1955), 5 Ill.2d 277, 285-286, 125 N.E.2d 500:

“At common law the uncorroborated testimony of an alleged accomplice was sufficient to warrant a conviction if it satisfied the jury beyond a reasonable doubt. This rule has always been followed and has frequently been pronounced in Illinois. [Citations.] It is, however, universally recognized that such testimony has inherent weaknesses, being testimony of a confessed criminal and fraught with dangers of motives such as malice toward the accused, fear, threats, promises or hopes of leniency, or benefits from the prosecution, which must always be taken into consideration. Some jurisdictions attach such weight to these weaknesses that the rule had been abrogated by statute [Citation] while those jurisdictions which follow the rule, recognizing the questionable character of such testimony, attempt to restrict the weight to be given to it by statements that it is not regarded with favor, is discredited by the law, should be weighed with care, is subject to grave suspicion, should be viewed with distrust, and that it should be scrutinized carefully and acted upon with caution. [Citations.] Other similar statements by this court are too numerous to be cited. This court has also said that where it appears that the witness has hopes of reward from the prosecution, his testimony should not be accepted unless it carries with it absolute conviction of its truth.”

Reward from the prosecution is a significant factor in the present case. Battie testified that his indictment for murder would be dropped and that he would be allowed to plead guilty to the lesser charge of armed robbery in exchange for his testimony against the defendant. Hodges stated on direct examination that he was to be allowed to plead guilty to a lesser charge than murder in exchange for his testimony against the defendant. Later, under cross-examination, he stated that he had not been promised anything. This self-contradiction further undermines his testimony.

In addition to considering the potential rewards offered to uncorroborated accomplice witnesses for their testimony, it is always necessary for the trier of fact, as well as for a reviewing court, to consider the comparative backgrounds of the accused and of his accusers in determining what weight is to be accorded to that testimony. People v. Hansen (1963), 28 Ill.2d 322, 192 N.E.2d 359; People v. Mostafa (1971), 5 Ill.App.3d 158, 274 N.E.2d 846.

Both Hodges and Battie admitted taking part in the robbery of the Jenkins apartment, stealing two television sets and dividing the proceeds from the sale of those sets between themselves. Both witnesses were unemployed and, in addition, Hodges was on parole at that time. Hodges also admitted not teUing the police “aH the truth.”

Defendant, on the other hand, was married and was the father of a child. He had been employed intermittently by the same company for 4 years. He served 5 months in the U.S. Army, from which he had received an honorable discharge for a speech impediment. Both his employer and his foreman testified that they had known defendant for 4 years and that his general reputation for truth and veracity in the community in which he lived and worked was good. Admittedly these men did not live in the same neighborhood as the defendant; however, their place of employment was less than two blocks from the defendant’s home, and they did know and work with the defendant for 4 years. Considering these facts we feel that the proof showed defendant to be a respectable and law abiding citizen. This conclusion is borne out by the assistant State’s attorney’s comment during the hearing in aggravation and mitigation: “* * * the defendant has no criminal background.” Utmost caution must be used in relying on uncorroborated accomplice testimony, especially where the witnesses are self-confessed and discredited criminals who have been offered a reward for their- testimony, and the proof shows that the accused is a respectable and law abiding citizen. (People v. Hansen, supra; People v. Mostafa, supra.) This same caution governs our review of the case. And, although the weaknesses of accomplice testimony go to the weight of the evidence and to the credibility of the witnesses, matters peculiarly within the province of the trier of fact in tire first instance, we will not hestitate to reverse the finding of a jury or a trial court where the conviction was based on uncorroborated accomplice testimony and where, in reviewing that testimony with regard to its nature and its source and its potential motivation, we are left, as we are in this case, with a reasonable doubt as to defendant’s guilt. (See People v. Mostafa, supra.) The applicable general principle has been stated by our supreme court as follows: “* * # in criminal cases it is the duty of this court to review the evidence, and, if there is not sufficient credible evidence, or if it is improbable or unsatisfactory, or not sufficient to remove all reasonable doubt of defendant’s guilt and create an abiding conviction that he is guilty, the conviction will be reversed.” People v. Dougard (1959), 16 Ill.2d 603, 607, 158 N.E.2d 596; see also People v. Newson (1971), 133 Ill.App.2d 511, 273 N.E.2d 478.

We are not unmindful of the testimony of the State’s rebuttal witness, Joe Anthony. His was the only testimony that tended to corroborate the testimony of Hodges and Battie. Considering, however, the narrow area of corroboration (facts occurring after the robbery), his impeachment by defense counsel, and his admitted fatherly ties with Hodges, we find that his testimony is not significantly corroborative and leaves Hodges’ and Battle’s testimony standing naked and unsupported, insufficient to persuade us of the defendant’s guilt beyond a reasonable doubt.

The judgment is, therefore, reversed for the foregoing reasons. Since we have arrived at this decision, we find it unnecessary to consider the other points raised in this appeal.

Reversed.

STAMOS and LEIGHTON, JJ., concur.