text:
    The Department of Public Works and Buildings, Petitioner-Appellant, v. Margie C. Guerine et al., Defendants—(Frank Alamprese et al., Defendants-Appellees.)
    (No. 72-324;
    Second District
    May 21, 1974.
    John W. Damisch, Anthony M. PeccarelH, and Loretta C. Didzerelds, áll of Barclay, Damisch & Sinson, and WHHam J. Scott, Attorney Genéral, both of Chicago, for appellant.
    Foran, Wise & Schultz, of Chicago, for appeHees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

Petitioner, Department of Public Works and Buildings, filed this condemnation proceeding to acquire certain property in an unincorporated area of Du Page County. The circuit court of Du Page County entered a judgment upon a jury verdict. Petitioner appeals from that judgment and from the trial judge’s order denying the post trial motion to set aside the verdict and for a new trial.

Several issues have been presented for our determination. Firstly, whether it is proper for a condemning authority to call an expert appraisal witness to testify and to impart to the jury the fact that the witness had previously been employed by the property owners’ attorney to appraise the subject property, and thereby implicitly reveal that the owners did not intend to call that appraisal witness as their witness. Secondly, whether a remark made by defendants’ attorney during trial was prejudicial to the petitioner. And thirdly, whether the trial judge erred in refusing to instruct the jury with one of petitioner’s tendered instructions.

Defendants’ property is located along the south side of Lake Street (U.S. Route 20) and has a 260-foot frontage and a 150-foot depth. The easterly half of the property is improved with a brick industrial type building which was used for the sale and rental of heavy construction equipment. The westerly half of the property is vacant. For the purpose of widening Lake Street (U.S. Route 20), petitioner condemned a rectangular strip of defendants’ property, designated as Parcel 23, consisting of a 260-foot frontage along Lake Street with a depth of 18 feet.

Petitioner’s condemnation petition was filed on April 21,1971, pursuant to section 4 — 501 of the Illinois Highway Code. (Ill. Rev. Stat. 1969, ch. 121, par. 4 — 501.) Upon petitioner’s motion for immediate vesting of title under the quick-take provisions of the Eminent Domain Act (Ill. Rev. Stat. 1973, ch. 47, par. 2.1), an order was entered which preliminarily determined the just compensation for the acquisition of defendants’ property to be $8,100. Thereafter defendants filed a cross petition wherein they sought damages for the alleged diminution in the value of the remainder of their property caused by the taking.

Prior to trial, defendants moved to divide and redesignate Parcel 23 into two parcels. Defendants argued that this was necessary because the evidence would illustrate that the highest and best use of the vacant westerly half of their property was for service station use, and that its value was greater than that of the easterly half. Accordingly, the court divided and redesignated the condemned 260-foot-by-18-foot strip as follows: Parcel 23 being the easterly 130 feet of the condemned strip, and Parcel 23 A being the westerly 130 feet of the strip.

The only issue at trial was the determination of the amount of just compensation due defendants for that portion of their property which was taken (Parcels 23 and 23A), and for the damage caused to the remainder of their property as a result of this taking. To establish these monetaiy amounts, defendants elicited testimony from three expert appraisers, in addition to two witnesses who testified as to comparable sales. Defendants’ three appraisal witnesses valued Parcel 23 from a low of $5000 to a high of $5300; and they valued the damage caused to the remainder of defendants’ property as a result of this taking from a low of $0 to a high of $8700. As to Parcel 23A, defendants’ appraisal witnesses valued it from a low of $7600 to a high of $9100; and their testimony as to the damage caused to the remainder of defendants’ property as a result of this taking ranged from a low of $14,100 to a high of $17,300.

Petitioner then introduced two expert appraisal witnesses who valued just compensation for Parcel 23 at $3500 and $4600; and they estimated the damage to the remainder of defendants’ property as a result of this taking at $5500 and $0. These same appraisers value just compensation for the taking of Parcel 23A at $6400 and $3500. Both testified that there was no damage caused to the remainder of defendants’ property as a result of this taking.

The jury found that the just compensation due defendants for the taking of Parcel 23 to be $4600, with $4500 due defendants for the damage caused to the remainder of their property as a result of petitioner’s acquisition of Parcel 23. The jury also established just compensation for the taking of Parcel 23A to be $7600, and awarded $5000 to defendants for the damage caused to the remainder of their property as a result of petitioner’s taking of Parcel 23A.

One of the expert appraisers called by petitioner was James Dunn who had previously been hired by defendants' attorney to appraise the subject property for the condemnation case. Prior to trial, however, defendants decided not to call Dunn in their behalf. Pursuant to defendants’ motion in limine, the trial judge ruled that petitioner’s attorney could not reveal to the jury that Dunn had previously been hired by defendants’ attorney to appraise the property. The judge further ruled that petitioner’s attorney could reveal, on direct examination of Dunn, that neither he nor the Department of Public Works and Buildings had ever hired Dunn to appraise the subject property, and could further reveal that the witness had been called to testify on behalf of the petitioner pursuant to a subpoena. Faced with this ruling, petitioner made an offer of proof, to which defendants’ attorney stipulated, as to Dunn’s previous employment relationship with defendants’ attorney for the purposes of appraisal and consultation.

Petitioner contends that the trial judge erred in not allowing its trial counsel to reveal to the jury the fact that witness Dunn had previously been employed by defendant’s attorney to appraise the subject property. Essentially petitioner argues that this fact is “both relevant and probative” in that it illustrates the “bias” of those expert appraisal witnesses actually utilized by defendants at trial.

Although this question has never before been directly presented to an Illinois court of review, this, court has had an opportunity to briefly discuss this question, without deciding it. In Department of Business Economic Development v. Schoppe (1971), 1 Ill.App.3d 313, 272 N.E.2d 696, we held that the fact that an expert appraisal witness had previously been employed by the landowners to appraise their property did not prevent the condemning authority from utilizing that expert appraiser as a witness in its behalf at trial. However, although not essential to its holding, this court stated that the condemning authority would not have been able to introduce the expert appraiser as a former appraiser of the land owners “because such would have no relevancy to the issues to be decided.” 1 Ill.App.3d at 317, 272 N.E.2d at 699.

Since this question has now been directly presented we feel compelléd to reconsider and expand upon what we said in Schoppe. The propriety of revealing to the jury the fact that a party to a condemnation case.has not called one of the persons as a witness whom he had previously hired to appraise the subject property has been specifically decided by several jurisdictions, with' a resulting split in authority.

In Arkansas State Highway Com. v. Phillips (1972), 252 Ark. 206, 478 S.W.2d 27, the majority of the Arkansas Supreme Court approved the trial judge’s ruling which permitted the landowner to call as an appraisal witness a staff appraiser employed by the condemning authority; and to show through that witness’s testimony that he had made an appraisal of the subject property for the condemning authority but was not being called as a witness in its behalf. In so holding, the Phillips court stated, “We can see no sound reason why the evidence as to failure of a party to produce an expert consulted by him cannot be shown by the witness rather than through the party himself or from other witness called by the party.” (252 Ark. at 219, 478 S.W.2d at 33.) This holding of the Phill'ps court was premised on the general principle that evidence of a party’s conduct in failing to call a witness which would generally be favorable to him is admissible as an admission by a party opponent.

However, the majority of the jurisdictions that have considered this question have reached a contrary result. (State v. Biggers (Tex. 1962), 360 S.W.2d 516; State v. Washington Horse Breeders Association (1964), 64 Wash.2d 756, 394 P.2d 218; State Highway Com. v. Earl (1966), 82 S.D. 139, 143 N.W.2d 88; Boyles v. Houston Lighting 6- Power Co. (Tex. 1971), 464 S.W.2d 359.) In these cases the question is treated as one of relevancy. In each of these cases the courts recited, without extended discussion, that the fact of an expert appraisal witness’ prior employment by one of the parties to a condemnation case is not relevant to the issues in such cases. We too believe that this question should properly be determined within the framework of relevancy concepts.

The reasons are speculative at best why one party to a condemnation case may decide not to call as an expert witness one whom he had previously hired to appraise the subject property. Assuming, however, as petitioner contends, that one of those reasons may be that the appraiser’s dollar valuation of the property was not in line with the figure the land owner (or condemning authority) had in mind, then the fact of prior employment would arguably have some probative value to the issue of just compensation. Theoretically, this fact would render the desired inference (i.e., that the values placed upon the property by the party’s witnesses who actually testified are not accurate) more probable than such inference would be without introduction of this fact.

Relevance, however, is not always enough to warrant admission of evidence. In this case the judge’s refusal to admit testimony as to Dunn’s prior employment relationship with defendants’ attorney was proper for two reasons: Firstly, introduction of this fact would certainly arouse the jury’s emotions of prejudice. (Arkansas State Highway Authority v. Phillips (1972), 252 Ark. 206, 478 S.W.2d 27, 34 (dissenting opinion); cf. The Department of Business é- Economic Development v. Baumann (1972), 9 Ill.App.3d 1, 291 N.E.2d 213, reversed on other grounds (1974), 56 Ill.2d 382, 308 N.E.2d 580.) And secondly, by allowing petitioner to reveal to the jury evidence of Dunn’s prior employment relationship, the landowners would then necessarily have the opportunity to explain why they did not call Dunn to testify as to his appraisal. (II Wigmore on Evidence (3rd Ed. 1940), page 162, section 285.) This would result in the creation of a collateral issue that would unduly distract the jury from the main issue of determining just compensation.

Similarly, it is an established rule in the law of eminent domain that the fact that one of the testifying witnesses has been appointed by the court to appraise the subject property should not be revealed to the jury. (Department of Public Worlds & Buildings v. First National Bank (1965), 61 Ill.App.2d 78, 82, 209 N.E.2d 21; cf. Department of Business and Economic Development v. Baumann (1972), 9 Ill.App.3d 1, 291 N.E.2d 213, reversed on other grounds (1974), 56 Ill.2d 382, 308 N.E.2d 580.) Therefore, although there may arguably be some probative value in the admission into evidence of testimony of an expert appraisal witness’ prior employment relationship with one of the parties to the condemnation proceeding, this value is outweighed by the evidentiary counterfactors of prejudice and creation of collateral issues. For this reason the evidence was properly precluded from the jury.

Petitioner’s second contention, that a remark made by defendants’ attorney in the presence of the jury was prejudicial, must be discussed within the perspective of the events which occurred during the trial. Before witness Dunn took the stand, petitioner’s attorney revealed that Dunn was going to testify both' as to his appraisal of the subject property and as to comparable sales in the area. The attorneys for each party then agreed, for the purpose of order, that Dunn would complete the direct and cross-examination on his valuation testimony prior to testifying as to the comparable sale. Accordingly, after petitioner’s attorney completed his redirect examination of Dunn with respect to his appraisal of the subject property, but before proceeding to examine him as to the comparable sale, the following took place:

Petitioner’s Attorney: “I have nothing further on these issues, your Honor.”

The Court: “Right, I understand that. All right, now you may proceed on the other line of questioning as to —”

Petitioner’s Attorney: “That’s Mr. Casey’s — ”

The Court: “Let’s see. No, its his line of questioning.”

Defendants’ Attorney: “Yes, it’s his witness, Judge.”

The Court: “All right.” (Emphasis added.)

Petitioner’s attorney then immediately argued that the above italicized statement by defendant’s attorney was prejudicial to petitioner’s case and moved for a mistrial. In the alternative, petitioner urged the trial judge to admonish the jury that Dunn was “* * * not my witness.” The trial judge, out of the presence of the jury, denied petitioner’s motion for a mistrial and further ruled that no curative instruction to the jury was necessary. He based this ruling on the fact that the witness Dunn had already testified that he was present in court pursuant to being served with a subpoena, and furthermore had already testified that he had never been hired by petition or its attorney for the purpose of appraising the subject property. The court concluded:

“I think what happened is perhaps unfortunate and a genuine and honest confusion [sic] rather than an attempt to mislead anybody. * * * I don’t feel personally that there has been prejudice to the Department.
# # #
* * * I frankly feel that there would be more problems created by any instructions at this point.”

Petitioner has relied on the cases of Clarke v. Rockford (1967), 79 Ill.App.2d 336, 224 N.E.2d 679; Gordon v. Checker Taxi Co. (1948), 334 Ill.App. 313, 79 N.E.2d 632; and Delach v. Schuberth (1942), 316 Ill.App. 452, 45 N.E.2d 198 (abstract opinion), in support of its contention that this remark by defendant’s attorney was prejudicial and was thus ground for reversal. The factual situations in these cases, however, are clearly distinguishable from the facts in the case before us. From our reading of the record, we do not believe the ruling on this issue entailed an abuse of the trial judge’s discretion. The statement by the defendant’s attorney merely indicated that the witness Dunn was petitioner’s “witness” for the purpose of proceeding with the direct examination as to the comparable sale.

Finally, petitioner argues that the trial judge erroneously refused petitioner’s tendered non-I.P.I. instruction #8, while at the same time giving defendant’s tendered instruction #10 (I.P.I. 300.84). Petitioner’s refused instruction #8 reads:

“In considering the compensation to be paid to the defendants for the lands and premises which have been taken, you are to fix the actual cash market value of the premises taken. In arriving at such compensation, you are not to consider the price which the property may be sold for under special or extraordinary circumstances but its fair cash market value, if sold in the market, under ordinary circumstances.”

and defendant’s instruction #10 which was given reads as follows:

“When I use the expression ‘Highest and Best’ use of property I mean that use which would give the property its highest cash market value on April 21, 1970. [This may be the actual use of the property on that date or a use to which it was then adaptable and which could be anticipated with such reasonable certainty that it would enhance the market value on that date.]”

Petitioner further contends that the trial court erred in refusing to give the above instruction with the bracketed portion omitted therefrom as petitioner’s instruction. The error according to petitioner is that by so instructing the jury, the trial judge “* * * in essence decided for the jury that Parcel 23A should be considered adaptable for a gas station, and that such a use should not be considered speculative.” We are not in agreement with this contention. First, the record includes sufficient testimony relating to the present adaptability of Parcel 23A for service station use to warrant inclusion of the bracketed language contained in instruction #10. Second, petitioner’s instruction #8 is not found in Illinois Pattern Jury Instructions, Civil (2d ed. 1971). Furthermore, the proper criterion for determining value was correctly given to the jury in petitioner’s instructions #13 (I.P.I. 300.80) which explains just compensation, and in #11 (I.P.I. 300.81) which defines fair cash market value. Finally, the apparent purpose of petitioner’s refused instruction #8 was to advise the jury not to consider any “special or extraordinary circumstances” when it determined the just compensation for Parcel 23A and the damages resulting to the remainder of defendants’ property as a result of this taking. Essentially, the language of this portion of refused instruction #8 is contained in the bracketed portion of instruction #10 which was given to the jury. That instruction refers to a use to which the parcel was presently adaptable and “which could be anticipated with reasonable certainty.” (Emphasis added.)

Unquestionably the above italicized portion of instruction #10 excludes any implication that the jury could consider speculative issues when it determined the amount of just compensation and damages due the defendants as a result of the taking of Parcel 23 A. Therefore, since petitioner’s refused instructions contained essentially the same principles of law that were contained in the given instructions #10, 11, and 13, all of which are I.P.I. and correctly state the law, the trial judge properly refused petitioner’s instruction #8. Supreme Court Rule 239(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 239(a)); City of Chicago v. Provus (1953), 415 Ill. 618, 114 N.E.2d 793.

For these reasons the judgment of the trial court is affirmed.

Affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE GUILD

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Mikrut, Defendant-Appellant.
    (No. 73-90;
    Second District
    May 22, 1974.

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

delivered the opinion of the court:

The defendant was found guilty of burglary in a jury trial and sentenced by the court to a term of not less than 2 nor more than 6 years in the State penitentiary.

Defendant raises two issues on appeal: (1) whether the circumstantial evidence in this case supports a finding of the defendant’s guilt beyond a reasonable doubt; (2) whether the admission into evidence of defendant’s prior conviction was an abuse of discretion and reversible error.

The offense was committed on October 25, 1968. The defendant was not tried until July 20, 1971.

The defendant and one Clifton Scott were charged with' the burglary of a AAA Power, Inc., construction trailer in Elmhurst, Illinois. On the night of October 24, 1968, Lt. Kohnke of the Elk Grove Village police department was patrolling in Elk Grove Village. At approximately one o’clock in the morning, he noticed a 1962 panel truck proceeding slowly in a southerly direction on Elmhurst road. The vehicle lacked the second division markings; the license plate light was out; the tail light was broken; and a white light emitted from the rear of the truck. Lt. Kohnke followed the vehicle, requested a license check, and found that it was registered to Clifton Scott in Orland Park, Illinois. Lt. Kohnke continued to follow the truck which periodically would almost come to a complete stop at various construction sites, near trailers and other construction material storage areas. When Lt. Kohnke stopped the vehicle for the traffic violations, he noticed that the defendant alighted from the driver’s side of the vehicle. He advised the officer he did not have a driver’s license. At the time Scott exited the vehicle the police officer looked into the truck and observed a spool of copper wire, black coated copper wire, a set of bolt cutters, and other tools. The police officer testified that after he advised the defendant and Scott of their constitutional rights, the defendant stated that they were “out to make a hit.”

At trial, a Mr. Graff, an employee of AAA Power, Inc., testified that he placed various tools and equipment in the AAA Power, Inc., construction trailer on the afternoon of October 24. The tools included a rotohammer, pipe benders, cable cutters, bolt cutters, wire and cable fittings. He was the last employee to leave the job site and he locked the trailer with a padlock and hasp. When Mr. Graff came to work in the morning, he found that the lock had been broken and the above items had been taken from the trailer. This witness at the trial identified the above items, which were found in defendant’s truck, as belonging to AAA Power, Inc. The president of AAA Power, Inc., corroborated the identification of these items found in the possession of the defendant.

The defendant Mikrut testified in his own behalf. He stated that co-defendant Scott came to his house on the night in question and that he and Scott then left Chicago at 9:45 P.M. for Elk Grove Village in order to pick up some money. Defendant testified they traveled directly from Chicago via Kennedy Expressway to Mannheim Road, north to Palatine Road, west to Route 83, south to Oakton Street, and then west 200 feet to a point where he stopped because he was having trouble with his car. At that time Officer Kohnke stopped him. His testimony is slightly inconsistent in that he testified it took him three hours traveling at approximately the speed limit to drive from Chicago to Elk Grove Village (about 20 miles). The defendant also testified that he had never seen the items in the panel truck prior to having been shown them by the police; he had no idea how they got into the truck; he did not take the items in question from the AAA Power, Inc., construction site; and he never made any statement that he knew from whence the articles came.

In a similar case to the one before us, People v. Rogers (1959), 16 Ill.2d 175, 157 N.E.2d 28, two defendants were therein charged with larceny of building material taken from a plumbing and heating company storage yard. The defendant testified that he became intoxicated and when he found his truck it was loaded with soil pipe. The defendant stated he had no idea how the pipe got into his truck. The court stated in Rogers at page 180:

“* « « possession 0f stolen property, the proceeds of a larceny, soon after the commission of the offense is evidence of guilt and is sufficient to warrant a conviction unless such possession is explained. [Citation.] The jury has a right to consider whether his explanation is at all probable, and it is incumbent upon him to tell a reasonable story or to be judged by its improbabilities. [Citation.]”

In People v. Woods (1963), 26 Ill.2d 557, 188 N.E.2d 1, the court found that same rule is applicable to possession of “proceeds of a burglary.”

In the case before us the defendant was found in recent possession of goods taken in a burglary under suspicious circumstances. Defendant’s story was flimsy at best. We have repeatedly stated in such a situation this court will not substitute its judgment for that of the jury unless the verdict is against the manifest weight of the evidence. After a careful review of the record we find that the defendant was proven guilty beyond a reasonable doubt. The jury verdict was not against the manifest weight of the evidence.

After the defendant testified herein, the court allowed the introduction into evidence of the defendant’s conviction in Du Page County for burglary in 1965. Citing People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, defendant contends that this constitutes reversible error. The basic premise in Montgomery is that evidence of prior convictions of a defendant who testifies in his own behalf is irrelevant and should not be admitted for impeachment purposes where the conviction or the release from confinement is more than 10 years prior to the time of trial. If the prior offense is one which is punishable by death' or imprisonment in excess of 1 year, or involved dishonesty regardless of punishment and is within the 10 years from the date of conviction or from the release of confinement, whichever is later, it is within the discretion of the trial judge whether or not such conviction should be introduced into evidence. The trial judge must decide whether the probative value of the prior convictions is substantially outweighed by the danger of unfairness in determining whether evidence of the prior conviction should be allowed into evidence.

In this case, defendant’s prior conviction was for burglary in 1965 and he was sentenced to 1-2 years in the State penitentiary. The burglary in the case before us was committed in 1968, at the most within 2 years of his release from the penitentiary for the prior offense.

Under the situation herein we do not believe that the trial court abused its discretion in allowing the admission of the prior conviction of the 1965 burglary for the purpose of impeachment. The judgment of the trial court is affirmed.

Affirmed.

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


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Robert L. Cobb et al., Defendants-Appellees.
    (No. 73-105;
    Fifth District
    May 20, 1974.

      Robert H. Rice, State’s Attorney, of Belleville (Charles H. Stegmeyer, Assistant State’s Attorney, of counsel), for the People.
    Robert E. Farrell and Martin Carlson, of State Appellate Defender’s Office, of Mt. Vernon, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal by the State from an order of the Circuit Court of St. Clair County barring further prosecution of defendants on an armed robbery charge, the trial court, on its own motion, having previously declared a mistrial.

Defendants first came to trial on December 4, 1972, and during the testimony of the first witness, a mistrial was declared on motion of defendants because of the State’s failure to comply with a pre-trial discovery motion. Prior to commencement of a new trial on December II, before a different judge, counsel for defendants suggested that instead of selecting a new jury the same jury should be used as was empaneled for the first trial. The State agreed and the court then spoke to each defendant individually informing them of their rights and obtaining their consent to the use of such jury. He then informed the jury of the proposed procedure, and after determining that there was no reason that they could not give defendants a fair trial, they were sworn. At this point the State objected for the first time, but the court denied the objection stating that having once stipulated and having agreed to the procedure it could not now withdraw from such stipulation. The State then claimed a right to 12 peremptory challenges and endeavored to exercise that right against the entire panel. This, also, the court denied and the proceeding was recessed for lunch. Following the recess the court announced that having reconsidered the State’s objection he was declaring a mistrial. Defendants objected, stating they were ready for trial, and moved for dismissal of the charges against them. The case was then continued for reassignment to another judge to hear such motion.

On December 15 the cause came before a third judge on the motion in bar and plea of double jeopardy. After a hearing the court made the following findings: (1) that the jurors selected in defendants’ original trial were impaneled and sworn to try the issues in the second trial pursuant to a stipulation by the defendants and the State; (2) that the State then raised an objection to the jury and sought to exercise its challenges; (3) that the trial court declared a mistrial over defendants’ objections; and (4) that there was. no showing in the record that to proceed to trial with the same jury would result in injustice to either the defendants or the State. Based on these findings the court entered an order barring further prosecution of defendants for the offense with which they were charged and directed their release from custody.

It is not disputed that defendants were placed in jeopardy when the jury panel was accepted and resworn. Also, it is agreed that whether the court exceeded its authority in discharging the jury without giving rise to a valid claim of double jeopardy is governed by the principle originally set forth in United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165, to the effect that such action is proper only when “* * * there is a manifest necessity for the act, or the ends of public justice would otherwise be defeated.” The question posed, therefore, is whether the circumstances of this case bring it within said manifest necessity rule.

While it is true that not every mistrial necessarily gives rise to a valid claim of double jeopardy, nonetheless the right not to be put twice in jeopardy for the same offense is a substantial right which should be zealously guarded. (People v. Laws, 29 Ill.2d 221.) Also, it has been established that to justify a declaration of a mistrial over the objection of a defendant under the Perez rule it must appear that an impartial verdict cannot be reached, or, if a verdict of conviction could be reached, that it would have to be reversed on appeal due to an obvious procedural error. Illinois v. Somerville, 410 U.S. 458, 35 L.Ed.2d 425, 93 S.Ct. 1066.

Under these rules the State argues that the denial of its right to exercise its peremptory challenges constituted error which would have made a reversal on appeal a certainty. We find some difficulty understanding this argument. As indicated by the record, and as found by the judge who ruled on the plea in bar, the jury was sworn only after tire State had stipulated to proceeding with the jury as previously empaneled. By so stipulating the State necessarily waived its right to challenge the jury, and it can hardly be said that the court denied it a right which it had waived. Presumably, it agreed to accept this jury because it had already exercised its challenges originally and tire panel had then proved acceptable. Also, the argument just does not track when it is concluded that if the case had proceeded to a conviction then reversal on appeal would have necessarily followed because of the error. It is not explained how defendants would be entitled to a reversal for an error denying a right of the State and not one of then own. In any event, apart from whether or not the State had waived its right to its peremptory challenges, it has been specifically held that, after a jury has been accepted and sworn, a prior improper restriction of the State’s right to its challenges does not constitute such error as would defeat the ends of public justice so as to justify granting a mistrial on the State’s motion. (People v. Friason, 22 Ill.2d 563.) The court concluded that under such circumstances to retry the accused constituted a violation of his constitutional rights, that he should have been discharged after the declaration of a mistrial, and that to hold otherwise would so enlarge the Perez rule as to render nugatory the basic constitutional guaranty against double jeopardy. We agree, and find such case dispositive of the issue before us.

Next the State suggests that reprosecution should not be barred because the mistrial did not result from any prosecutorial misconduct intended to harass defendants, and the delay in selecting a new jury would have been minimal. However, neither misconduct on the part of the State, nor the difficulty of selecting another jury, has any bearing on the matter. As stated in United States v. Jorn, 400 U.S. 470, 27 L.Ed. 2d 543, 91 S.Ct. 547, the purpose of the double jeopardy clause is to protect a defendant’s valued right to have a trial completed by a particular tribunal, and the right is not limited to cases of prosecutorial or judicial overreaching, but applies to any situation in which a mistrial is improperly declared without defendants’ consent.

The State has endeavored to support its contentions with the citation of a number of cases in each of which it was determined that a declaration of mistrial was justified. However, each case must be judged on its on facts, and a review of the State’s cases clearly reveals the soundness of the Perez rule. All of them involved some error or event which rendered it impossible for an impartial verdict to be reached, or which would unquestionably have resulted in reversal on appeal if the trial had proceeded to a guilty verdict. United States v. Perez, 9 Wheat. 579, 6 L.Ed. 165; Logan v. United States, 144 U.S. 263, 36 L.Ed. 429, 12 S.Ct. 617, and Dreyer v. Illinois, 187 U.S. 71, 47 L.Ed. 79, 23 S.Ct. 28, all involved cases of a hung jury. In Wade v. Hunter, 336 U.S. 684, 93 L.Ed. 974, 69 S.Ct. 834, a tactical situation made it impossible to complete a court martial held in the field. In Thompson v. United States, 155 U.S. 271, 39 L.Ed. 146, 15 S.Ct. 73, after the jury was sworn it was discovered that one of the jurors was disqualified because he had served on the grand jury which indicted the defendant. In Lovato v. New Mexico, 242 U.S. 199, 61 L.Ed. 244, 37 S.Ct. 107, when the prosecution realized that the defendant had never entered a plea, the jury was discharged to allow the defendant to plead, and the same jury was resworn. In Illinois v. Somerville, 410 U.S. 458, 35 L.Ed.2d 425, 93 S.Ct. 1066, the indictment failed to charge an offense.

In the case before us there is no suggestion whatsoever that either side could not have received an impartial verdict had the trial continued, nor, as above discussed, could a conviction have been upset even if it were considered an error to have denied the State its peremptory challenges. Under such circumstances we find that the order barring further prosecution of defendants was proper.

The judgment of the Circuit Court of St. Clair County is affirmed.

Affirmed.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: Mr. JUSTICE SIMKINS

text:
    Marie Kolkovich, Plaintiff and Counterdefendant-Appellee, v. Joseph L. Tosolin, Jr., Defendant and Counterplaintiff-Appellant—(Joseph L. Tosolin, Jr., Third-Party Plaintiff-Appellant, v. Edmond H. Rees, Temporary Exr., of the Estate of Joseph L. Tosolin, Sr., Third-Party Defendant-Appellee).
    (No. 12209;
    Fourth District
    April 4, 1974.

      Rehearing denied June 17, 1974.

      Phelps, Russell, Carmody & Kasten, of Carlinville (Carl E. Kasten, of counsel), for appellant.
    McGrady, Madden and McGrady, of Gillespie (Denis A. McGrady, of counsel), for appellee.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

This appeal involves reformation of a deed pursuant to the counterclaim of defendant-counterplaintiff-appellant at the conclusion of a suit instituted by the plaintiff-counterdefendant-appellee seeking a declaratory judgment as to her interest in real estate devised to her by the father óf both parties; and the taxing of attorney’s fees against the defendantcountérplaintiff-appellant.

The plaintiff, Marie Kolkovich, and defendant, Joseph L. Tosolin, Jr., are brother and sister, with the dispute involving the boundary between a tract of land given to Joseph by their father while alive, and the tract devised to Marie by will. On November 18, 1970, Marie filed a complaint for a declaratory judgment to ascertain her property interest under her father’s will, alleging that their father was dead, that Joseph had been appointed executor when the will was admitted to probate on April 9, 1968, that the will had devised certain real estate to Marie, but that by deceit and various improper methods, Joseph attempted to coerce Marie into signing deeds and in other ways willfully attempted to mislead her and has continually refused to turn her property over to her, and otherwise abused his discretion as executor. Joseph’s answer alleged the affirmative defense of laches and counterclaimed for reformation of a deed dated July 20, I960, conveying a tract of land 95 feet by 157 feet to Joseph by his father. The answer alleged that from 1956 on the father had aided Joseph in building a house which was partially on the deeded property and partially on property retained by the father and willed to Marie.

A bench trial was held and Joseph testified that in 1956, shortly before he began construction of his house, his parents gave him a tract of land measuring 95 by 157 feet immediately adjacent to the tract on which the parents’ house was located. Joseph testified that the western boundary was to be midway between the two houses where there was a fine of bushes and a fall in elevation. Joseph testified that in 1960 he and his parents decided that a deed should be made and together they measured a tract 95 feet by 157 feet, the father telling Joseph to make the boundary line so as to split the difference between Joseph’s new home and the parents’ home. He further testified that in March 1969, while serving as executor for his father’s estate, he had a survey made which gave him his first knowledge that the measurements described in the 1960 deed and the father’s will drawn in 1966, leaving the remaining portion of the land whereon the parents’ house was located to Marie, placed his west boundary near the middle of his garage, rather than between the two houses along the fine of bushes. Joseph said that he had the survey made while he was executor which showed most of his house was not located on the property described in his deed and in the father’s will, and that he then had the surveyor make a survey showing “what my dad wanted”. Knowing the error, he continued to act as executor and filed the final report closing the estate without taking any action on the matter.

Joseph called the father’s attorney, who testified that when the father engaged him to write his will he had stated he wished to leave some real estate bounded by the bushes to his daughter Marie, but the attorney had instructed the father to bring the measurements which he then used to prepare the will. A neighbor who lived to the west of the father’s home testified that he saw Joseph and the father working on the house from the time they began construction and was allowed by the court to testify to a conversation with the father about his will to show the father’s state of mind. According to this witness, the father stated that he intended Marie to get his house and enough land around it to encompass the cistern on the east side. The neighbor further testified that he had seen the father and Joseph making measurements, and again referring to a conversation with the father concerning the will, the neighbor stated that the father had stomped his foot where he had intended the boundary to be near the point claimed by Joseph. Joseph’s other witnesses were various contractors who testified that they had dealt with him rather than with the father in building the house, and that Joseph had paid for the materials and labor.

The plaintiff Marie testified that Joseph brought their father’s will to her in April 1968 shortly after it was admitted to probate, and that when she could not understand the extent of the property described in the will, Joseph bargained with her, giving her three sheds, all of the contents of their father’s house, and agreeing to charge no executor’s fee, but refused to tell her exactly where the boundary line was, even when pressed. Marie testified that neither their father’s attorney nor Joseph would tell her the extent of her land as described in the will so that finally she obtained an abstract and employed a surveyor in early 1970, thereby finally determining that the boundary of the land devised to her by her father’s will was located farther to the east than Joseph had represented to her.

The trial court first found that Marie’s action was barred by the laches of her father, since she would take no greater interest than he had. The court further found that there was a mutual mistake as to the property described in the deed executed by the father and mother as grantors, and ordered a reformation of the deed to include Joseph’s house as was apparently intended. The court further ordered Joseph to pay all costs, including $1000 attorney’s fees payable to Marie’s counsel. Joseph’s attorney prepared, pursuant to the court’s direction, an order embodying the court’s initial finding which the court signed and was filed. The circuit clerk received and forwarded to plaintiff’s attorney, attorney’s fees ordered. Thereafter Marie filed a post-trial motion, claiming that Joseph was given property greater than that intended by their father in that he was allowed to keep all the property covered by the allegedly erroneous deed, plus was given a portion of that devised to Marie without paying any compensation for it. On May 23, 1972, the trial court vacated its March 23, 1972, order finding that it did not reimburse Marie for “the land taken from her from the order” and referred to a tract 69 feet by 157 feet as being “taken”. By letter the court gave the parties 10 days to agree on compensation for that tract, and stated that the tract intended to be conveyed was 95 feet by 157 feet and that that would be a part of any new order entered by the court.

The trial court denied Joseph’s motion to strike Marie’s post-trial motion, and ordered preparation of an order signed on December 5, 1972. That order continued the taxation of attorney’s fees against Joseph, and carved out an irregular-shaped parallelogram 80.21 feet by 69.18 feet around Joseph’s home adjacent to the rectangle described in his original deed, so that Marie would own the road frontage directly in front of most of Joseph’s house.

It is within the jurisdiction and duty on the courts of equity to correct mistakes in conveyances by reformation, but before a deed will be reformed satisfactory evidence of a mistake must be presented, and the evidence must leave no reasonable doubt as to the mutual intention of the parties, a mere preponderance of the evidence being insufficient: (David v. Schiltz, 415 Ill. 545, 114 N.E.2d 691.) Courts should proceed with great caution in reforming written instruments. (Booth v. Cole Corp., 121 Ill.App.2d 77, 257 N.E.2d 265.) The court may not make a new agreement for the parties under color of reforming the one made by them, nor can it add a provision which the parties never agreed upon: (Almer Coe & Co. v. American National Bank and Trust Co., 44 Ill.App.2d 104, 194 N.E.2d 14.) The basic rule is, therefore, that a court of chancery may reform an instrument so as to make it conform to the intentions of the parties and the agreement between them. Lux v. Lelija, 14 Ill.2d 540, 152 N.E.2d 853.

In the instant case there is little doubt that reformation of the deed was in order, there being sufficient evidence showing a mutual mistake on the part of the parties; the fact that the grantee, with the acquies-cence — in fact with the aid of the grantor — built, the house on the tract of land conveyed where the grantee lived with, the obvious knowledge of the grantor for approximately 12 years before the grantor’s death; However the real issue on appeal is the extent of the reformation as ordered by the trial court. Joseph contended and the trial court found that the parties intended Joseph’s tract to be 95 feet by 157 feet, with the description in the deed locating it farther east than intended, resulting in more than half of Joseph’s house being built on land retained by the father and devised to Marie. The three most plausible solutions would be (1) to reform the deed to move both the .east and the west boundaries to the west, so that Joseph would own a tract 95 by 157 feet as apparently intended, simply moved to the east of that described in the deed and the will; (2) move the west boundary west to a point between the houses, leaving the east boundary as it was, which would result in Joseph having a rectangular tract which appears to have been the intent of the parties, but somewhat larger than the 95 feet by 157 feet dimensions to the detriment of Marie’s devise; (3) merely reform the deed to give Joseph all the land on which his house sits, in addition to that described in the deed, but no more. The third method was chosen by the trial court in its final order and resulted in Joseph recéiving an irregularly-shaped figure with eight sides made up of the tract described in the deed, plus a parallelogram on its west side measuring 69.18 feet by 80.21 feet around and including Joseph’s house. By carving out such a tract and in addition ordering Joseph to compensate Marie for the land taken from her devise, it appears the trial court-has indulged in equitable partition, particularly in the face of its specific finding that the parties intended to convey a rectangular tract 95 feet by 157 feet.

As to granting any reformation of the deed in favor of Joseph, Marie Contends that Joseph should be estopped because he was a party to the taking of the measurements used in his deed and in the will, and also due to his failure to take action to correct the matter while serving as executor for their fathers estate, and by his wrongful action in closing the estate when he knew of the mistake in description. In Shelly v. Ersch, 305 Ill. 126, 137 N.E. 106, the basic rules of reforming a deed were said to be: (1) the mistake must be one of fact and not of law; (2) proof must clearly and convincingly show that a mistake was made; (3) the mistake was mutual and common to both parties to the instrument. The supreme court in Shelly stated that estoppel does not arise where the acts of the parties sought to be estopped were due to ignorance by reason of an innocent mistake. It was said that in order to bar the reformation of a deed in case of a mutual mistake, negligence must be so gross as to amount to a violation of a positive legal duty. It also said that a necessary element of estoppel is that the party relying upon the representation made was misled to his injury, suffered loss of a substantial character, or has been induced to alter its position for the worse in some material manner. The reasoning behind this reluctance to allow estoppel to be used against one seeking reformation is that nearly every mistake necessarily implies some degree of negligence, so, therefore, the mere fact that the plaintiff was negligent will not necessarily bar his right to reformation. Blumenfeld v. Neuman, 350 Ill.App. 306, 112 N.E. 2d 742.

“The allowance and recovery of costs rests entirely upon statutory provisions and no liability for costs exists in the absence of statutory authorization. Any party to an action, claiming the right to recover costs from his adversary, must found his right upon some provision of a statute. * * * A court of chancery may be vested with a power to exercise a discretion in awarding costs, but the power to act must come from a statute, and the discretion must be confined to that which is authorized by legislative enactment.” (Ritter v. Ritter, 381 Ill. 549, 553, 46 N.E.2d 41, 43.) In a few areas chancery courts have been given prescribed discretion's. One such area is in section 41 of the Civil Practice Act, which grants discretionary awards of attorney’s fees where untrue allegations are' made in a manner where the record shows bad faith on the part of the pleader. (Grandys v. Spring Sop Water Conditioning Co., 101 Ill. App.2d 225, 242 N.E.2d 454.) The purpose of that statute is to penalize a litigant who brings up false or frivolous matter, thereby causing his opponent to spend money for an attorney. (Schroeder v. Busenhart, 133 Ill.App.2d 180, 272 N.E.2d 750.) The alleged bad faith of Joseph transpired before the litigation began.

Another exception to the general rule which might conceivably have been in the mind of the trial court in the instant case is paragraph 68 of chapter 106 (Ill. Rev. Stat., ch. 106, par. 68), providing for the apportionment of costs, including a reasonable fee for plaintiffs attorney, in proceedings for the partition of real estate when the rights and interests of all the parties in interest are properly set out in the complaint, and no good and substantial defense to the complaint is interposed. The clear purpose is to give the court discretion to apportion fees so that all persons who benefit from the apportionment suit pay their equitable share of the cost. In the instant case, the trial court gave no reasons or authority for awarding attorney’s fees to Marie, but a reading of the entire record with voluminous motions and pleadings suggests that the taxing of attorney’s fees in the instant case was based on a feeling that it was equitable because Joseph, by his dilatory if not unscrupulous conduct, caused this litigation to become so expensive to the plaintiff. It appears that the trial court likely felt that Marie had been “forced” to bring this action and expend money which she would not have been if Joseph had acted properly and in good faith when he discovered the erroneous description in his deed and in the will, and so awarded fees to the “innocent” party who actually lost property as a result of the lawsuit.

Assessment of costs in an action for reformation of an instrument rests largely in the discretion of the court. (Schmitt v. Heinz, 5 Ill.2d 372, 125 N.E.2d 457.) For example, where it was decreed adversely to defendant’s claim that the deed be reformed and that the plaintiff pay defendant a certain sum, the court properly required the defendant to pay two-thirds of the cost. (Stanley v. Marshall, 206 Ill. 20, 69 N.E. 58.) The traditional rule has been that a plaintiff is entitled to costs only after he has gone to judgment in his favor (Sweetland v. Tuthill, 54 Ill. 215) because only a successful party could recover his costs. (Hodge v. People for the use of Franklin, 78 Ill.App. 378.) In the absence of a statute, attorney’s fees and the ordinary burdens and expenses of litigation would not even be allowed to a successful party. (House of Vision, Inc. v. Hiyane, 42 Ill.2d 45, 245 N.E.2d 468.) Attorney’s fees are never allowed to unsuccessful litigants and are not allowed to successful litigants, either in courts of law or in courts of equity, in the absence of a statute or agreement authorizing amounts. (O’Hare v. Moniak, 110 Ill. App.2d 327, 249 N.E.2d 178.) In the instant case, the trial court gave no reason nor authority for the taxing of attorney’s fees, although, as suggested above, it appears to have been based on a feeling of what was equitable since Joseph, against whom the costs and fees were assessed, prevailed on his counterclaim for reformation of the deed, and, by so doing, received land which the will devised to the plaintiff. Costs were not recoverable at common law and the courts have no power, in the absence of statutory authorization, to tax costs against anyone merely on equitable grounds. Home for Destitute Crippled Children v. Boomer, 320 Ill.App. 541, 51 N.E.2d 830.

For the reasons stated above, the order allowing attorney’s fees must be reversed, there being no evidential basis and no statutory authority for their entry. The trial court properly found that reformation of the deed was appropriate, there being sufficient evidence that the parties had made a mutual mistake in supplying the description used in the deed and the subsequent will of the father. However, as it appears that the terms of the second reformation order here appealed from did not achieve the intent of the parties to the deed as found by the trial court, but was rather a compromise partition initiated by the court, the reformation order is reversed and remanded with directions to enter an order reforming the deed to create the rectangular tract with the boundary passing between defendant’s house and the house on the tract of land devised to plaintiff.

Reversed and remanded.

SMITH, P. J., and KASSERMAN, J., concur.


author: Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Vincent Harris, Defendant-Appellant.
    (No. 12005;
    Fourth District
    May 21, 1974.

      Robert I. Auler, of Auler Law Offices, of Champaign (Robert W. Dodd, Senior Law Student, of counsel), for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana (Gary Duerkoop, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was indicted, tried and found guilty in a bench trial of knowingly agreeing to unlawfully sell certain narcotic substances, to wit, a quantity of cocaine, and then sold a nonnarcotic substance in violation of section 38 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22 — 40). Judgment was entered on the verdict and'defendant was sentenced to an indeterminate term of 3 to 9 yéars. The defendant appeals.

Several issues are submitted for review: (1) whether the indictment upon which defendant was convicted was fatally defective; (2) whether the People’s Exhibits 1 and 2 were properly admitted into evidence; (3) whether the State established all of the essential elements of thé offense in question, specifically that defendant knowingly sold a nonnarcotic substance; (4) and lastly, whether defendant’s guilt was proven beyond a reasonable doubt. The defendant asserts that because of these alleged defects his conviction should be reversed, his sentence vacated, and he prays that he be discharged.

Defendant was originally indicted in a seven-count indictment. The last three counts were severed and tried separately. As to Counts I and II, the trial court directed verdicts of acquittal for defendant at the conclusion of the State’s case. After a bench trial the trial court found defendant guilty of Count III and entered judgment thereon.

Defendant’s bench trial commenced on January 4, 1972. The State called a total of four witnesses: Larry L. Cook, Gerald O. Long, Kenneth Crain Vail and Harold Frank Hanel.

Cook, a special agent for the Illinois Bureau of Investigation, testified that he went to 1400 Briarwood Lane in Champaign on July 8, 1971, at approximately 11:23 P.M. At that address Cook met John Aprile and the defendant. They engaged in a conversation concerning how much “coke” Cook could push. Cook stated that when he used the term “coke” he was referring to cocaine. The defendant purportedly asked whether Cook thought he could gross $9000 from the sale of one-half pound of cocaine. Cook told them that he would have to get in touch with contacts at Carbondale, Edwardsville and Charleston in order to raise that amount of money. Cook was told that he would be contacted in approximately 6 to 8 days. After leaving the residence, Cook then met with Gerald Long and Michael Leahy, the surveillance agents assigned to the case. Agent Long had the residence in question under surveillance the entire time that agent Cook was there.

Cook returned to the same address on July 15, 1971, after he had been contacted. He informed defendant that he was only able to raise $1000 because his.contacts in the other part of the State had dried up. Defendant allegedly answered: “That’s all right, Larry. We’ll show them dudes.” Aprile then removed a towel from around a clear plastic bag containing a white powdery substance. He handed the entire bag to Cook who then proceeded to determine the nature of its contents. Cook sampled the substance and after a few moments he experienced a numbing effect on his lips. The plastic bag was purportedly filled with cocaine. Cook then emptied a portion of the bag which was labeled “nature’s best” into a plastic container from which he took 66 level teaspoons and emptied them into another plastic bag. In the course of the transaction, defendant asked Cook how much he. thought he could gross off the sale of a single spoon. Cook replied $150 per spoon. After concluding the transfer of the substance, he stuffed the bag into another bag bearing a distinctive Avon marking. Cook then counted out $1000 and turned it over to defendant. Defendant then allegedly told Cook that once the balance of the remaining amount due under the agreement was paid then he would not have to put any money down in the future. “You’ll just pay for it as you push it.” They gave Cook two weeks to come up with the balance due.

Cook picked up the Avon bag and left the premises. Thereafter, he met with agents Long and Ernst at a prearranged location. These agents had the residence under surveillance during the time that Cook was inside. On July 16, 1971, he carried the contents of the Avon bag contained in a sealed evidence envelope to the Illinois Criminal Bureau lab in Springfield and gave custody of the item to one Weiss, a lab technician. At trial, Cook identified the contents of a sealed evidence envelope, People’s Exhibit 1. It contained the white powdery substance that he purchased on July 15, 1971, at 1400 Briarwood Lane from defendant. Cook stated that the purported cocaine had been chemically tested out to be tetracaine.

Cook testified that from the time he received the contents of People’s Exhibit 1 until July 16, 1971, when he turned the evidence over to lab technician Weiss, the bag was either in his continuous and exclusive possession or in an evidence vault; and that it was in the same condition the day it was transferred to the lab as it was the day Cook received it from defendant.

In cross-examination Cook stated that after receiving the substance in question, he tested it with a Valtox field kit. Cook stated it reacted positively for cocaine but that many noncocaine substances may give an initial positive reaction to the same test. Defense counsel asked Cook whether the yellow plastic measuring spoon he used to spoon the white powdery substance into his plastic bag was a standard measure. Cook replied that he did not know. He stated that it was a single measuring spoon and that he assumed it was a teaspoon; but that its volume was slightly less than the normal measuring teaspoon. Defense counsel then asked Cook to make a comparison of the quantity of substance that he purchased at 1400 Briarwood Lane and the quantity presented in court, People’s Exhibit 1. After further questioning, Cook stated that the amount present in court was fairly close to the amount that he had purchased. Defense counsel then presented Cook with two metal standard measuring spoons, defendant’s Exhibits 4 and 5. He examined them and concluded that they were of totally different construction than the spoon used when purchasing the substance in question. Defense counsel asked Cook to make a comparison of the volume contained in the two spoons presented at trial and that used to make the measurements in question. Cook replied that he could not do this without filling them up. Defense counsel asked agent Cook to take the plastic bag in question and measure out 66 teaspoonsful of powder in the same fashion that he did on July 15, at 1400 Briarwood Lane, with either defendant’s Exhibit 4 or 5. The State objected and the trial court upheld the State’s objection whereupon the defendant made an offer of proof. The court rejected the offer of proof on the grounds that defendant failed to establish what type of teaspoon was originally used in the transaction in question.

The State next called Gerald Long. Long was a squad leader of the Illinois Bureau of Investigation, Division of Narcotics. He testified that agent Cook was in Long’s squad on July 8 and 15, 1971; that on the 8th and 15th of July he had an occasion to be in Champaign County on official business. He was conducting surveillance of 1400 Briarwood Lane, the residence where agent Cook had contacted the defendant concerning the purchase of cocaine. Long testified that he was accompanied by agent Leahy on one occasion and by agent Ernst on another when 1400 Briarwood Lane was put under surveillance. According to Long neither he, Leahy or Ernst entered the premises in question with agent Cook. Long admitted that he could not observe the entrance to the premises on the two dates that Cook entered due to his vantage point, but that he did observe the vehicles that were parked to the west of the residence and that he had seen agent Cook leave his car and go toward the residence and that at a later time he observed Cook returning to his vehicle. Agent Long stated that he gave Cook the funds necessary to purchase the drugs. On cross-examination Long stated that at no time did he search Cook or his car before or after Cook left the residence in question.

Kenneth Vail, a chemist for the Illinois Bureau of Investigation, testified that he received the substance in question from a technician, George Weiss, in a sealed envelope and immediately assigned it with a number. He then performed chemical tests on it and found that no narcotic drug was present. Upon cross-examination, he stated that the substance in question weighed approximately 180 grams upon receipt and that the substance was removed from the vault for testing on two occasions. 3.208 grams were removed from the evidence envelope for transmission to the Federal Narcotics Bureau for chemical analysis.

Harold Hanel testified that he was a forensic chemist for the Federal Bureau of Narcotics and Dangerous Drags. He stated in that in July 1971 he received a sample from Mr. Vail for chemical testing. When he received the sample it was in a sealed container. He performed certain chemical tests on it and found that the same did not contain any cocaine or any other narcotic drug, but that it was tetracaine, a nonnarcotic. He then resealed the substance in die container — People’s Exhibit 2 — with an “Avery label” that cannot be tampered with without easy detection; and he retransmitted it to Mr. Vail. He stated that the substance was in his exclusive possession and control or in the evidence vault during the interim.

At the conclusion of the People’s case, the state’s attorney moved for the admission of People’s Exhibits 1 and 2. Defense counsel objected on the grounds that the State failed to lay proper foundation for their admission because the State allegedly did not account for all of the substance which was purchased from defendant; and that the State failed to properly establish a continuous chain of possession. The court overruled the objections.

The defendant called Art Condon, an acquaintance, to testify. He testified that many people he knew including the defendant used the term “coke” to describe all sorts of things that an individual could “get high on”. He stated for example that cocaine, novocaine, codeine and tetracaine are all called “coke”.

Defendant then called Alan Caspers, a pharmacist, who testified that tetracaine is a local anesthetic which is sold without a prescription. He stated that it has no hallucinogenic effects. He also testified that he estimated the weight of People’s Exhibit 1 to be slightly less than half-a-pound, or approximately 40 to 45 teaspoons instead of the purported 66 teaspoons. Defendant made a motion to allow witness Caspers to measure the substance which was denied by the court.

At the conclusion of all the evidence, the trial court found defendant guilty of the charge as set forth in Count III of the indictment.

Defendant submits that it was error for the trial court to refuse to dismiss Count III of the indictment in that the indictment incorrectly set forth the charges upon which he was convicted, and consequently he was unable to properly defend himself.

Defendant was found guilty of violating section 38 of the Uniform Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22 — 40), in that he offered to sell a narcotic substance but in fact sold a normarcotic. Count III states:

“* * *: That Robert Harris a/k/a Pudgy late of said County, on the 15th day of July, 1971, at and within the said County of Champaign and State of Illinois, aforesaid, committed the offense of:
ILLEGAL SALE OF NARCOTIC DRUGS
in that he did knowingly agree to unlawfully sell certain narcotic drugs, to-wit: A quantity of Cocaine to Larry L. Cook, Special Agent, Illinois Bureau of Investigation, and did then sell said Larry L. Cook a non-narcotic substance or material, the same not being authorized by the ‘Uniform Narcotic Drug Act’ of Illinois, in violation of Chapter 38 Section 22 — 3 [sic] of the Illinois Revised Statutes of 1969, * ”

The caption of the indictment states: “ILLEGAL SALE OF NARCOTIC DRUGS”. Contained in the charging portion of Count III is language asserting that defendant knowingly agreed to sell certain narcotic drags and then sold a nonnarcotic drag in violation of Illinois Revised Statutes 1969, chapter 38, paragraph 22 — 3. It is clear that the caption of the indictment was incorrect and the indictment should have cited paragraph 22 — 40 instead of paragraph 22 — 3. The question is: did improper caption and the failure to cite the proper statutory provision allegedly violated render the indictment void?

The errors that defendant complains of are of a technical nature. The indictment was phrased in terms of the statute and clearly informed him of the charges pending against him. In People v. Robinson, 7 Ill.App. 3d 704, 288 N.E.2d 484, we said:

“Paragraph 111 — 3, ch. 38, Ill. Rev. Stat. 1969, with reference to form, requires that a charge shall be in writing and allege the commission of an offense by stating the name of the offense and citing the statutory provision alleged to have been violated. An indictment or information otherwise valid that is defective in that it does not cite the statutory provision alleged to have been violated is not thereby rendered void. [Citation.] Such omission while error does not vitiate the indictment. [Citations.]” (7 Ill. App.3d 704, 706.)

See also People v. Caldwell, 55 Ill.2d 152, 304 N.E.2d 292, and People v. Aprile, 15 Ill.App.2d 327, 304 N.E.2d 169.

Defendant was not prejudiced in any way by the technical error found in the indictment. Therefore we find defendant’s contentions to be without merit.

Defendant next argues that (1) the State failed to establish the proper chain of possession as to People’s Exhibits 1 and 2; (2) and the trial court erred in refusing defendant’s request to measure the substance in People’s Exhibits 1 and 2.

With regard to defendant’s first contention that the chain of possession was not adequately established, we cannot agree. Essentially defendant árgues that in order for the authorities to properly establish a chain of possession, the state must produce all individuals who came in contact with the exhibits.

The general rule as found in People v. Anthony, 28 Ill.2d 65, 190 N.E. 2d 837, is that:

“In order to establish a foundation for the admission into evidence of the narcotics, the State had the burden of showing a sufficient continuity of possession of same from the time of the alleged sale to the time the white powder and the testimony regarding its chemical content was offered into evidence so as to negate the possibility of tampering or substitution.” (28 Ill.2d 65, 68.)

In the Anthony case the defendant had attacked the propriety of the foundation for the admission of certain narcotic drugs that he had allegedly sold to a police officer. In Anthony the police officer who received the narcotics from the defendant placed them in a sealed envelope, endorsed his name thereon and delivered it to the crime laboratory. The chemist at the laboratory who made the analysis received the envelope in the sealed condition with no suggestions of tampering or alterations. The individual who received the sealed envelope from the officer and placed it in a locked cabinet, from which it was retrieved by the chemist, was not called to testify by the State. Defendant submitted since the State failed to call this individual it did not establish the necessary foundation for the admission of the narcotics into evidence. The supreme court rejected this argument. The court noted that the techniques employed by the officer and the crime laboratory, which were revealed in their testimony, were sufficient to render admissible the testimony relating to the results of the chemical analysis.

In People v. Washington, 41 Ill.2d 16, 241 N.E.2d 425, it was contended that the State failed to prove that the packages of narcotics introduced as evidence against defendant at trial were the same packages seized by police from his person. The court found:

“[T]he facts in this case reveal no such break in the chain of evidence against the defendant, but rather the testimony of the arresting officers and the police laboratory chemist sufficiently identified the packets of narcotics admitted into evidence as the same packets that were seized from the defendant * * (41 Ill.2d 16, 23.)

The court went on to say that since the arresting officer was able to identify the People’s exhibits as being the same substance which they had seized from the defendant and that the police chemist was able to identify the substances as being the same that he had taken from the criminal laboratory safe and tested, there were no missing links in the chain of possession.

In this case, the record demonstrates that the following chain of custody was established. Agent Cook testified that he put a quantity of white powder into a plastic bag and that he took the plastic bag and stuffed it into an Avon bag; and he later subjected the contents of the plastic bag to a chemical field test. Agent Long stated that after Cook left the residence at 1400 Briarwood Lane he met Cook, whereupon he observed a plastic bag full of a white powdery substance in Cook’s possession. Cook said that he sealed People’s Exhibit 1 in an evidence envelope and turned it over to a lab technician at the Illinois Crime Lab in Springfield. Vail, the chemist for the Illinois Bureau of Investigation, testified he received the substance in question from a technician in a sealed evidence envelope and that he assigned a number to the envelope and performed chemical examination on the substance in question. Vail stated that he took a sample of the substance and transmitted it to the Federal Narcotic Bureau for chemical analysis. He returned the balance of the substance in a sealed envelope to agent Cook. Harold Hanel, a forensic chemist for the Federal Bureau of Narcotics, testified he received the sample from Mr. Vail in a sealed condition and then performed chemical tests upon the same. He returned the remainings of the sample, not used in the chemical analysis, to Mr. Vail in a sealed container. Both Vail and Hanel testified that the substance they had custody of was in their exclusive possession and control or in an evidence vault during the interim. Both Cook and Vail identified the substance in question presented at trial as being the same white powdery substance that they had received in connection with the case at bar. The State, in establishing the chain of custody in this case, complied with standards as found in Anthony and Washington.

The defendant contends that the court erred in refusing to permit the defense request to measure the substance contained in People’s Exhibits 1 and 2. The defendant was attempting to show that the combined volume of Exhibits 1 and 2 would not equal 66 teaspoons and that this would establish the possibility of tampering with or alteration of the exhibits in question and vitiate their admissibility.

The court would not permit defendant to measure the substance in People’s Exhibits 1 and 2 by using either spoon, defendant’s Exhibits 4 or 5, because defendant failed to show that these measuring spoons were of the same construction and volume as that used by Cook in the original transaction. We find no error. Defense counsel failed to establish all of the same conditions that were present when Cook made the initial measuring of the substance in question. Without so doing defendant’s experiment lacked relevancy.

Defendant next argues that the State failed to establish that he knowingly sold a nonnarcotic and thus failed to prove all the elements of the offense. The State concedes that knowledge that a nonnarcotic substance was being sold is an essential element of the offense; but the State argues by citing People v. Harris, 52 Ill.2d 558, 288 N.E.2d 385, that in narcotic cases this knowledge may frequently not be susceptible to direct proof and can. be established by acts, declarations or conduct of the accused from which the inference of knowledge may fairly be drawn.

In People v. Bell, 53 Ill.2d 122, 290 N.E.2d 214, the supreme court stated that whether the defendant had the requisite knowledge and possession of the narcotics is a question of fact for the jury to determine. We find the reasoning in Bell persuasive and apropos to this case. The record in this case tends to support the finder of facts’ conclusions that the defendant acted knowingly. We will not disturb such a finding unless it is clearly erroneous.

. Lastly, the defendant submits that his guilt was not established beyond a reasonable doubt. He argues that the evidence against him rests entirely upon the testimony of special agent Cook. Also, defendant suggests that the State did not show, beyond a reasonable doubt that he had used the word “coke” as brought out in special agent Cook’s testimony to mean cocaine so as to deceive or defraud the I.B.I. agent.

Essentially we are confronted with a question of the credibility of agent Cook. It is the function of the trier of fact to evaluate the credibility of the witnesses in making its determination of a defendant’s guilt or innocence. Its ultimate finding of guilt will be disturbed only when the evidence is so improbable as to leave a reasonable doubt of defendant’s guilt. People v. Curry, 56 Ill.2d 162, 306 N.E.2d 292.

The testimony of agent Cook, as that of agent Long and the other prosecution witnesses, was positive, credible and uncontradicted. The record illustrates that there is no compelling reason to disbelieve their testimony, especially that of Cook, and that any inconsistencies brought out in cross-examination merely went to the weight and hot the admissibility of their testimony. Therefore, we find that the trial court’s findings of facts were not manifestly erroneous.

The judgment and sentence of the circuit court of Champaign County are affirmed.

Judgment affirmed.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bobby Street, Defendant-Appellant.
    (No. 12421;
    Fourth District
    May 21, 1974.
    Callis and Filcoff, of Granite City, for appellant.
    No appearance for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

This case was originally appealed to this court to review the defendant’s conviction for burglary and theft. Upon the original appeal we affirmed the burglary conviction and reversed the conviction for theft; (See People v. Street, 11 Ill.App.3d 243, 296 N.E.2d 606.) The mandate of this court required the circuit court to issue an amended mittimus showing the burglary conviction and deleting the conviction for theft. The cause was remanded with directions to accomplish the issuance of an amended mittimus. Upon remand, the defendant- sought resentencing and consideration of periodic imprisonment. The trial court dismissed the petition for resentencing and periodic imprisonment. The defendant filed a notice of appeal.

The mandate of this court gave the trial court jurisdiction to do only that which was required, under the mandate of this court. (See Hornof v. The Kroger Co., 40 Ill.2d 545, 240 N.E.2d 658; Beaven v. Village of Palatine, 106 Ill.App.2d 160, 245 N.E.2d 560; Hamilton v. Faulkner, 96 Ill.App.2d 415, 238 N.E.2d 631.) The defendant cannot, by a petition for resentencing, reopen and relitigate issues that were or could have been raised upon the original appeal.

In this case the trial court did that which the mandate of this court required it to do and refused to do anything other than that. Under the cited authority, this was proper and there was no action by, nor any order of, the trial court that was final and again appealable. Accordingly, this appeal should be, and the same is, dismissed.

Appeal dismissed.

SIMKINS, P. J., and CLARK, J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
      In re Estate of Frank Shelton, Deceased—(James Thomas Ellis, Jr., Petitioner-Appellant, v. Marjorie George et al., Respondents-Appellees.)
    (No. 12120;
    Fourth District
    May 21, 1974.
    Fellheimer & Fellheimer, of Pontiac (Charles E. Glennon, of counsel), for appellant.
    Peter F. Ferracuti & Associates, Ltd., of Ottawa (John Panegasser, of counsel), for appellees.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

The trial court adjudged the will of Frank Shelton to be without any force and effect and held that his estate should pass as intestate property to the half-sister of the decedent, who was his sole and only heir-at-law. We reverse.

Frank Shelton’s will was executed in 1959. It gave all of his property to “my wife, LaWanda Shelton” in fee simple absolute. There was a gift over to the petitioner-appellant as follows: “In case my wife shall predecease me, I hereby give, devise and bequeath all my property, real, personal and mixed to my wife’s son, James Thomas Ellis, to have as his very own and to dispose of as he may so desire ” * * * Frank and LaWanda separated in December 1969, and were divorced in July 1971. Frank died in October of the same year. The trial court’s judgment was based on its interpretation of section 46 of the Probate Act (Ill. Rev. Stat. 1957, ch. 3, par. 197), which so far as material reads as follows: “* * * and (2) divorce or annulment of the marriage of the testator revokes every beneficial devise, legacy or interest given to the testator’s former spouse in a will executed before the entry of the decree of divorce or annulment, and the will shall take effect in the same manner as if the former spouse died before the testator.” This language was a part of the statute in 1957 prior to the date the will was executed.

It is at once apparent that the holding of the trial court was contrary to the plain language of the statute and the result reached applied to the statute in a manner which is inherently inconsistent. The trial court held the divorced spouse was dead for the purpose of receiving her own legacy, but alive for the purpose of defeating her son’s legacy. In so doing, it held that a civil death due to a divorce is not tantamount to an actual death. This, of course, is quite obviously true and the statute does not make it otherwise. It merely provides that a divorce prior to the death of the testator has the same effect on the will as if the former spouse died before the testator. In short, the change in status of the wife either through predeceasing the testator or through divorce has the same legal effect on the will.

Great reliance is placed on an article at page 232 of the 1964 Illinois Bar Journal and Champaign County Bank and Trust Co. v. Jutkins, 29 Ill.2d 253, 193 N.E.2d 779. Both the law review article and the opinion in Jutkins seem to regard the application of the statute as productive of harsh results. In Jutkins, the opinion held squarely and specifically that the statute would be construed prospectively only and not retrospectively as it gave the testator no choice. The statute was amended by the legislature in 1965 to conform the statute to the decision in Jutkins, adding the following language: “This Amendatory Act of 1965 applies to wills of decedents dying after December 31, 1965.” Thus, the legislature makes it clear that the Act applies to Frank Shelton’s will and that Frank Shelton lived for more than 5 years after the passage of this statute without any change in his will.

The briefs contained statements of fact as to the relationship in the family which appeared no place in the record. We cannot and do not consider them. Indeed the trial 'court refused to hear any testimony which would have placed in the record the family background and stated for the record that there was a legal question only here involved. We agree. As stated in Jutkins at page 259, “The practical effect of the statute is thus to rewrite the will, not to revoke it.” We agree. Such is the legislative mandate. In Jutkins, the testator had no choice. Here he did but was quiescent.

The divorce undér the statute destroyed any interest that the ex-spóuse had under the will. It did not destroy the will nor did it revoke it. The will remained in' effect and the court erred in denying it probate.

Accordingly, the judgment of the trial court is reversed and the ¿arise remanded to that court for further proceedings consistent with the views herein expressed.

Reversed and remanded.

CRAVEN and SIMKINS, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Howard Holman, Defendant-Appellant.
    (No. 12195;
    Fourth District
    May 21, 1974.

      John F. McNichols, J. Daniel Stewart, and John L. Swartz, all of State Appellate E)efender’s Office, of Springfield, for appellant.
    Paul R. Welch, State’s Attorney, of Bloomington (Danny J. Leifel, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE CRAVEN

delivered the opinion of the court:

Defendant was indicted for conspiracy to commit armed robbery and armed robbery. A jury tidal resulted in a verdict of guilty on both charges. The trial judge entered a judgment of conviction on both verdicts. Following a hearing on a post trial motion, the trial judge vacated his judgment of conviction on the inchoate offense of conspiracy as required by section 8 — 5 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 8 — 5). Defendant was sentenced to an indeterminate term of 5 to 10 years. Defendant appeals.

Several issues are urged on appeal. First, whether the prosecutor committed prejudicial error in commenting upon defendant’s failure to testify at trial; secondly, whether the failure to transcribe the minutes of grand jury and make them available pursuant to defendant’s motion for discovery denied defendant a fair trial; third, whether the sentence was excessive under the Unified Code of Corrections; and, finally, whether the mittimus should be amended to strike tire judgment of conviction for conspiracy which appears thereon. '

On May 16, 1972, defendant went to the home of Mr. and Mrs. Olaf Stone upon the pretense that his automobile had broken down and that he needed assistance. Mr. Stone agreed-to take defendant back to the automobile which was located at the intersection of Routes 9 and 122. After Mr. Stone had driven out to Route 122, defendant put a gun to his side and demanded his money. Defendant then got out of Stone’s vehicle and went to an automobile that had been following. Mr. Stone returned to his home and notified the authorities of the armed robbery. Defendant was subsequently apprehended.

At trial, Mrs. Stone identified the defendant as being the individual who came to the residence on the night of May 16, 1972; and Mr. Stone identified the defendant as being his assailant. Detective Joseph Woith and detective Larry MiHer testified that after apprehending defendant and informing him of his rights, defendant proceeded to give them a two-page statement admitting his guilt; and at that time defendant identified the gun taken from the suspect vehicle as the one used in the armed robbery.

During the closing argument, the prosecutor made the following comment:

“* * * [A]nd let me refer to something else that you are going to be instructed on law by Judge Harrod. Neither sympathy nor prejudice should influence you. Mr. GeseH is aware of that law, that instruction says that you should not be influenced. You also will be instructed that you are not to hold against the Defendant the fact that he did not testify, and I am not holding that against him and you are not to do so either.” (Emphasis added.)

Defense counsel objected and requested that a mistrial be declared. The trial court denied the motion.

Defendant suggests that the quoted comments in closing arguments amounted to prejudicial error requiring that he be given a new trial.

• 1 The prosecutors remarks were improper. (Griffin v. California, 380 U.S. 609, 14 L.Ed.2d 106, 85 S.Ct. 1229; Ill. Rev. Stat. 1971, ch. 38, par. 155 — 1.) These gratuitous remarks, whether intentionally or unintentionaHy, called to the attention of the jury the fact defendant did not testify. Remarks of this nature are error. People v. Hopkins, 52 Ill.2d 1, 284 N.E.2d 283.

Under the rule of Harrington v. California, 395 U.S. 250, 23 L.Ed.2d 284, 89 S.Ct. 1726, and Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824, such error may be harmless beyond a reasonable doubt if it did not contribute to defendant’s conviction. We find that it did not.

The evidence of defendant’s guilt in this record is overwhelming. Defendant was positively identified by Mr. and Mrs. Stone; the two poHce detectives testified that they took a statement from defendant and he admitted guilt.

Defendant argues that the failure to transcribe and make available upon discovery the minutes of the grand jury denied him due process and a fair trial. People v. Lentz, 55 Ill.2d 517, 304 N.E.2d 278, is dispositive of this claim of error. In Lentz, the supreme court stated that Supreme Court Rule 412 (Ill. Rev. Stat. 1971, ch. 110A, par. 412), which requires the State to provide relevant records of grand jury proceedings to defendant upon request, does not require the State to provide such records when none was made; and failure to make such a record does not violate defendant’s rights.

Defendant next contends that the minimum sentence he received was excessive and should be reduced under the Unified Code of Corrections. This issue is conceded by the State in light of the holding of People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.

Defendant submits that the mittimus in this case improperly shows that judgments of convictions were entered against defendant for the offenses of conspiracy to commit armed robbery and armed robbery. In oral argument, defendant stated that the trial court amended the mittimus by excising any reference to the verdict of guilty on the inchoate offense, therefore this error has been remedied.

For the reasons above given, the judgment of conviction of the circuit court of McLean County is affirmed. The sentence imposed is vacated and this cause is remanded with direction to resentence defendant in accordance with the Unified Code of Corrections.

Affirmed and remanded with directions.

SMITH, P. J., and CLARK, J., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John L. Glover, Defendant-Appellant.
    (No. 72-259;
    Second District
    May 24, 1974.
    Ralph Ruebner and Adam Lutynski, of State Appellate Defender’s Office,, of Elgin, for appellant.
    Gerry L. Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jeffrey Oliver, Defendant-Appellant.
    (No. 72-246;
    Second District
    May 24, 1974.
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, for the People.


author: Mr. JUSTICE THOMAS J. MORAN

text:
      In re Estate of Thomas Gibson, Deceased—(John Berdusis, Ex’r of the Estate of Thomas Gibson, Deceased, Petitioner-Appellee, Cross-Appellant, v. Amelia Nalmpantis, Respondent-Appellant, Cross-Appellee.)
    (No. 72-314;
    Second District
    May 28, 1974.
    Marinates & Marinates, of Chicago, for appellant.
    Pollock, Meyers & Eichsteadt and Constantine G. Dragas, both of Chicago, for appellee.
   Mr. JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Petitioner, executor of the estate of Thomas Gibson, deceased, filed a complaint to construe decedent’s will. Respondent, the adopted daughter of the decedent, took nothing under the instrument.

After enumerating various small bequests to other legatees and accommodating payment of debts, the will’s Article VI, the basis of the complaint, commenced by stating, “I give, devise and bequeath aU of the rest, residue and remainder of my estate of whatsoever amount and character and wheresoever situated as follows,” and went on to designate that decedent’s sister, three nieces and five nephews were each to receive one-eighteenth share. An ambiguity exists in that one-half of the residuary estate remained undisposed.

Petitioner and a witness appeared on the day set for trial. Refore commencement of the hearing, respondent moved to exclude the introduction of any extrinsic evidence on the ground that the ambiguity was patent. At the conclusion of arguments on the motion, the parties agreed to furnish briefs to assist the court in its determination of the motion. Re-cause of the pending motion, the trial did not proceed but as a convenience to petitioner’s witness (the attorney-scrivener of decedent’s will), the court suggested that his evidence deposition be taken. This was done without the court’s presence. In the deposition the witness related circumstances surrounding the execution of the will and identified decedent’s former wills which were offered into evidence. Subsequently, petitioner filed a motion to include the deposition and exhibits as part of the evidence in the case. The record does not disclose that a hearing was held on either the motion or the complaint.

The record next reveals a memorandum decision wherein the court found that while, “The ambiguity here is patent, however, for purposes of this decision it is unnecessary for the court to consider this question and accordingly the Executor’s motion to consider as evidence the deposition * ° * is denied.” The memorandum further found, based upon the presumption against intestacy, that the testator intended to give all of the residuary estate, in equal parts, to the legatees named in Article VI. An order effectuating these findings was entered.

Respondent appeals from that portion of the order which divides the residuary estate equally among the named residuary legatees. Petitioner cross-appeals from that part of the order which denied admittance of the scrivener’s evidence deposition. Each party seeks reversal of the trial court’s order.

Cases are legion, requiring no citation, which hold that a court’s primary mandate in construing a will is to give effect to the testator’s intent whenever possible. Numerous rules of construction have been developed to accomplish this end and while cases construing wills do not have the controlling force of precedents attributed to other cases, they nevertheless offer aid in attempting to establish the testator’s intent. See Cahill v. Michael, 381 Ill. 395 (1942).

The introductory phrase of Article VI (previously quoted) clearly expresses a generic intent to dispose of the entire residue. The ambiguity arises when attempting to discern the testator’s specific intent. The fractional disposition of one-half of the residuary estate coupled with the general intent to dispose of the whole, permits alternate conclusions as to the testator’s specific intent: either he intended to give the entire residuary estate to the nine named persons but misstated their fractional shares or he intended to give one-eighteenth to each of the nine and the remainder to one or more persons whose names were erroneously omitted.

In ascertaining the testator’s specific intent the trial court relied exclusively upon the presumption against intestacy and, in effect, made the presumption conclusive. Such application of the rule would operate to prevent partial intestacy in every case. (Karsten v. Karsten, 254 Ill. 480, 485 (1912).) This approach is clearly not the law. (Glaser v. Chicago Title & Trust Co., 393 Ill. 447, 462-64 (1946); Foss v. State Bank & Trust Co., 343 Ill. 94, 96-97 (1931); Kenney v. Pasieka, 125 Ill.App.2d 24, 28-29 (1970).) In its effort to resolve the ambiguity, the court overlooked another familiar rule of construction, i.e., that general provisions must give way to specific provisions. McCreery v. Burmood, 332 Ill. 645, 648 (1928); Dickison v. Dickison, 138 Ill. 541, 547 (1891); Logan v. Harris Trust & Savings Bank, 8 Ill.App.2d 61, 68-69 (1955).

If the will itself was the only evidence available, we would be more inclined to accept respondent’s argument that tire unresolvable ambiguity required the question portion of the residuary estate to pass under the laws of intestacy. (Rodisch v. Moore, 257 Ill. 615 (1913); Dailey v. Dailey, 224 Ill.App. 17 (1922).) Here, however, there was an attempt to shed light upon the testator’s specific intent by means of the scrivener’s evidence deposition describing circumstances surrounding the execution of the testator’s last will and pertinent exhibits. (See Breckheimer v. Kraft, 133 Ill.App.2d 410, 415 (1971); Bradley v. Rees, 113 Ill. 327, 332-34 (1885); 94 A.L.R. 286, regarding scrivener’s testimony and Defrees v. Brydon, 275 Ill. 530, 540 (1916); Cravens v. Haas, 318 Ill.App. 447, 454-56, appeal denied (1943); Heckler v. Young, 264 Ill.App. 34, 38-42, appeal denied (1931), regarding former wills.) While this evidence was denied admittance, the question of its admissibility was preserved by petitioner’s cross-appeal.

Under certain circumstances this court may consider evidence improperly excluded by the trial court but those circumstances are not here present. All of the admissible evidence is not in the record before us. Dayton Scale Co. v. General Market House Co., 335 Ill. 342, 344-46 (1929); Gundich v. Emerson-Comstock Co., 21 Ill.2d 117, 127-28 (1960).

At the time of Rodisch and Dailey there was a rule of construction that extrinsic evidence could not be admitted to clarify a patent ambiguity. Since then, Weir v. Leaf green, 26 Ill.2d 406, 411-12 (1962), has made it clear that whenever an ambiguity in a will exists, be it latent or patent, extrinsic evidence is admissible as an aid toward reaching the testator’s intent.

We therefore hold that the court erred by relying solely upon the rule of construction that the testator’s specific intent could be founded upon the presumption against intestacy and further erred by denying the petitioner the opportunity to introduce extrinsic evidence in an attempt to aid the court in determining the testator’s specific intent.

For the reasons stated the orders appealed by the petitioner and respondent are vacated and the cause is remanded for further proceedings consistent with the views expressed herein.

Orders vacated and cause remanded.

GUILD, P. J., and SEIDENFELD, J., concur.