author: Mr. JUSTICE MEJDA

text:
    Stavros Panos, a Minor, by His Father and Next Friend, Miltiadis Panos, Plaintiff-Appellant, v. Michael J. McMahon, Defendant-Appellee.
    (No. 56220;
    First District (3rd Division)
    October 17, 1974.

      Rehearing denied November 26, 1974.

      Parrillo, Sims and Bresler, of Chicago (David J. Weiss, of counsel), appellant.
    Desort & Panek, of Chicago (John M. Burke, of counsel), for appellee.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Plainfff Stavros Panos, a minor, by his father and next friend, Mil-tiadis Panos, brought action against defendant, Michael J. McMahon, for injuries sustained by the minor when struck by defendant’s automobile. The jury returned a verdict for defendant and judgment was entered thereon. Plaintiff appeals and contends that the trial court erred in the following:

(1) refused plaintiff’s instructions as to speed and lookout;

(2) gave defendant’s instruction and allowed closing argument on the absence of certain witnesses;

(3) allowed defendant to testify that he was coming from a church council meeting;

(4) refused to strike defense counsel’s reference to the effect of any verdict; and

(5) refused to include disability in the instruction on damages.

Plaintiff further contends that the verdict is against the manifest weight of the evidence.

Defendant contends in his answering brief that the appeal should be dismissed because plaintiff’s abstract does not contain the notice of appeal.

The facts are as follows. On the evening of February 23, 1969, at about 9 P.M., plaintiff, his parents and two relatives were returning from a movie to the Panos home at 5647 West Washington Boulevard in Chicago. Mr. Panos parked his automobile across the street from his home, on the north side of Washington Boulevard, at a bus stop approximately 40 feet west of the intersection of Parkside Avenue. No cars were parked to the rear of the Panos car, but a few were parked in front of it. At the time, Washington Boulevard was an undivided four-lane east-west street with parked cars on both sidés. As the passengers left the automobile, plaintiff’s mother was holding his hand. He was 3 years old at the time, and was dressed in dark clothing. Plaintiff bit his mother’s hand and ran south across the street, into the path of defendant’s eastbound automobile, and was struck by the car’s left front fender. He was treated for a fracture of the right femur.

Plaintiff’s father testified that after discharging his passengers he noticed defendant’s automobile traveling east when it was about one block away and estimated its speed to be between 30 and 35 miles per hour. He did not continue to look at the car. He heard a thud, saw the car stop, and saw his son lying in the street. On cross-examination he stated that prior to the accident his son was biting his mother’s hand.

Plaintiff’s mother testified that she and her son were standing in the street near the curb, directly behind the Panos car while waiting for her husband. Plaintiff suddenly bit her hand and ran from north to south across Washington toward the Panos home. She stated that she observed defendant’s approaching automobile for a period of 2 minutes and first saw it when it was a block and a half away. She estimated its traveling speed to be between 35 and 40 miles an hour. She saw her son as he was struck by the left front headlight of defendant’s car.

Defendant testified that as he was traveling east on Washington Boulevard at about 25 miles an hour he noticed a parked car with the doors open and three or four adults alighting on the north side of the street. He was about 50 to 60 yards away. He further testified that when he saw the adults standing in the street he took his foot off the accelerator and put it on the brake pedal. He stated that he observed plaintiff prior to impact — at most, 2 feet away. He hit the brake and contact was made between the boy and the car at the left front fender. Both defendant and the police officer who examined his automobile at the hospital where plaintiff was treated testified that they had not seen any marks on the automobile other than “brush marks” where the road dust had been disturbed on the left front fender just above the left front wheel.

I.

Defendant contends that the instant appeal should be dismissed because the abstract does not contain the notice of appeal, relying on the recent cases of Shaw v. Kronst (1973), 9 Ill.App.3d 807, 293 N.E.2d 153; and Gregory v. Williams (1973), 14 Ill.App.3d 905, 303 N.E.2d 621. Supreme Court Rule 342(e)(4) (Ill. Rev. Stat. 1971, ch. 110A, par. 342 (e)(4) provides that in the abstract of the record on appeal, “the judgment or order appealed from and the notice of appeal shall always be included.” In Shaw, the court found that the appellant failed to abstract the judgment order from which the appeal was taken, and held that that deficiency alone was sufficient for dismissal of the appeal. However, the court went on to state, at page 809, “No notice of appeal is included in the abstract. By reference to the record we are able to ascertain that a notice of appeal was filed * # The court there found a multitude of omissions, not only in the abstract filed but also in the record and the briefs in that case. At page 811 the court further stated: “It is the duty of the appellant to present an abstract or excerpts sufficient to set forth every error relied upon for reversal. (Dempski v. Dempski, 27 Ill.2d 69, 187 N.E.2d 734.)” At page 810 the court explained: “In order for the court of appeal to understand the questions which are presented it is essential that the court be able to determine these questions conveniently.” In Gregory, the court dismissed the appeal, holding that it could not decide whether the appellant was entitled to a judgment n.o.v. in the absence of á report of proceedings, and further, because the defendant failed to include the notice of appeal in the abstract, citing Shaw v. Kronst, supra.

In the case before us, plaintiff’s abstract of record on appeal contains the following at page 31: “C95 Notice of Appeal filed May 28, 1971; C98 Notice of Appeal and Proof of Service filed May 28, 1971.” Unlike Shaw and Gregory, the plaintiff here has abstracted, at the very least, that a notice of appeal had been filed and made reference to its exact location in the record on appeal. The abstract does not specifically set forth the contents of the notice of appeal; nevertheless, we hold that the rule in Shaw and Gregory should not control in the instant appeal. There is no general confusion here as to the specific order from which the appeal is taken. No allegation has been made as to improper preparation or presentation of the briefs, record, or the remainder of the abstract. We have reviewed the record and find that the notice of appeal is proper as to form. The time expended by this court in reviewing the record for the contents of the notice of appeal does not justify a summary dismissal of the appeal. Supreme Court Rule 342(g) provides:

“The entire record on appeal, whether or not contained in the excerpts from record or abstract, is available to the reviewing court for examination or reference. Omission of any relevant portion of the record from the excerpts from record or abstract shall not prejudice a party unless the reviewing court finds that there has been no good-faith effort to comply with this rule.” (Ill. Rev. Stat. 1971, ch. 110A, par. 342(g).)

Although we do not condone the failure to properly abstract the notice of appeal by setting forth the contents verbatim, in the instant case defendant has suffered no prejudice. If the fact were otherwise we would follow the decisions of Shaw and Gregory. In view of the following discussion of the issues here raised, a summary dismissal would thwart, rather than further justice.

II.

Plaintiff first contends that the trial court erred in refusing to include in Plaintiff’s Instruction No. 6 the portions stating:

“(1) Carelessly and negligently failed to yield the right of way;
(2) Carelessly and negligently operated his automobile at a speed which was greater than was reasonable and proper with regard to traffic conditions and .the use of the highway and endangered the safety of persons upon the highway and failed to decrease his speed when a special hazard existed . with respect to pedestrians;
. (3) Carelessly .and .negligently, failed to keep a proper lookout”

The instruction is based on an Illinois Pattern Jury Instruction (IPI— 20.01). In the instruction conference the above deletions were made upon the granting of the objections of defendant to and exclusion in the original instruction as tendered, and plaintiff argued for the inclusion of those portions. The court deleted the issues of speed and lookout, stating that defendant testified he took his foot off the accelerator, which necessarily decreased the speed of his automobile, and that since he testified he saw a crowd around the parked car, defendant could not have seen the plaintiff and did not expect anyone to come out from behind the automobile. The court allowed certain other charges of negligence to remain in the instruction but deleted the three enumerated charges and directed plaintiff to include in his Plaintiff’s Instruction No. 6 the charge that defendant otherwise, carelessly and negligently, owned, operated and maintained said vehicle. On appeal, plaintiff does not challenge the deletion of the right of way issue.

The general rule applicable to the granting or refusal of instructions tendered is that “[a] party to a lawsuit has the right to have the jury instructed upon his theory of the case when there are pleadings and evidence which support his theory.” (Vincent v. Wesolowski (1967), 87 Ill.App 2d 477, 484, 232 N.E.2d 120; see also Sherman v. City of Springfield (1969), 111 Ill.App.2d 391, 409, 250 N.E.2d 537; Sims v. Chicago Transit Authority (1955), 7 Ill.App.2d 21, 129 N.E.2d 23; and Kirchner v. Kuhlman (1948), 334 Ill.App. 339, 79 N.E.2d 628.) The authority in Illinois is legion for the proposition that a person driving a moving vehicle has a duty to keep a lookout for objects and persons ahead of him. (See Vincent v. Wesolowski, supra; Rees v. Spillane (1950), 341 Ill.App. 647, 94 N.E.2d 686; Johnson v. Nevenhoven (1951), 344 Ill.App. 125, 100 N.E.2d 60; Secrist v. Raffleson (1945), 326 Ill.App. 489, 494, 62 N.E.2d 36; Lakomy v. Hanson (1960), 26 Ill.App.2d 452, 168 N.E.2d 740; Deel v. United States Steel Corp. (1969), 105 Ill.App.2d 170, 182, 245 N.E.2d 109; Williams v. Stearns (1930), 256 Ill.App. 425; and Isley v. McClandish (1939), 299 Ill.App. 564, 20 N.E.2d 890.) In Rees v. Spillane, supra, the appellate court reversed the trial court’s refusal to give an instruction as to the duty of a driver to maintain a proper lookout. In that case a child was hit while crossing an intersection. The reviewing court there noted, however, at page 662: “* * * there is no evidence that the plaintiff suddenly darted into the street into the path of an oncoming vehicle.” In Vincent v. Wesolowski, supra, the trial court refused to charge the jury as to defendant’s failure to keep a lookout. The defendant testified that he observed the vehicle five blocks away, applied his brakes and cut. out left to avoid , hitting plaintiff. In affirming the refusal, the appellate court stated, at page 485:

“This evidence indicates that the defendant was in a position to and was in fact watching for other automobiles. There is no direct evidence to the contrary, and in light of the testimony of the parties the accident itself is not circumstantial evidence of a failure to keep a proper lookout.”

Also, in Lakomy v. Hanson, supra, at page 457, the court held:

“The general rule that one cannot look and not see cannot be applied where the Court could reasonably believe that the object to be seen was, under the circumstances, concealed until almost on the plaintiff, tire plaintiff being otherwise in the exercise of due care.”

In Deel v. United States Steel Corp., supra, the operator of an industrial forklift sustained severe injuries when the top of his vehicle struck an overhead electrical cable. The appellate court, in affirming the trial courts refusal to instruct the jury as to the issue of plaintiffs contributory negligence in failing to keep a lookout, stated at page 182:

“There is no question that a person driving a moving vehicle has a duty to keep a lookout for objects and persons ahead of him but the type of lookout to be kept depends on the circumstances in which the vehicle is being operated.”

In the instant case, defendant testified that he observed several adults alighting from and standing around the Panos automobile. He further testified that he took his foot off the accelerator and placed it over the brake. He denied seeing plaintiff until almost 2 feet from the point of impact. Plaintiff’s mother testified that she and plaintiff were standing in the street directly behind the automobile and that plaintiff ran across the street. There is direct testimony that defendant observed the adults. We find no evidence in the record that he did not keep a lookout for pedestrians. What is more critical, there is no evidence that the child was in view at a time when defendant’s car might have been controlled to avoid the accident. (See Isley v. McClandish, supra, at 568, and Lakomy v. Hanson, supra, at 457.) The trial court’s refusal, as a matter of law, to give the above instruction as to lookout was proper.

The trial court also refused to instruct the jury on the issue of speed. We hold that the refusal constituted reversible error. In Nei v. Contracting & Material Co. (1968), 93 Ill.App.2d 226, at 233, 236 N.E.2d 264, the court held:

“A person can be driving under the speed limit and still be driving too fast for existing conditions. The plaintiff’s speed was an element for the jury’s consideration and the defendant was en- ' titled to have an instruction on the subject.”

In Wrighthouse v. Brown (1964), 52 Ill.App 2d 191, 196, 201 N.E.2d 752, the court held that the trial court’s refusal to instruct the jury upon excessive speed and failure to decrease speed constituted reversible error. In that case defendant tendered the instruction on the general issue of plaintiff’s contributory negligence. At the trial there, plaintiff testified that he took his foot off the accelerator and began to slow down to avoid hitting defendant’s tractor.

We reiterate, in the case before us, defendant testified that he took his foot off the accelerator. His testimony that his car necessarily slowed as a result is a mere conclusion not supported by the evidence. A vehicle may decrease in speed when pressure is released from the accelerator. On the other hand, a moving vehicle may maintain the same speed or decrease speed imperceptibly, depending on such factors as the grade of the roadway, the mechanical condition of the automobile, or other factors. There was no evidence, other than defendant’s conclusion, that defendant’s vehicle decreased in speed. Nevertheless, since there was conflicting testimony as to the speed of defendant’s automobile, the jury should have been instructed on that issue. Sims v. Chicago Transit Authority (1955), 7 Ill.App.2d 21, 129 N.E.2d 23.

At the hearing on plaintiffs post-trial motion, the court stated that the speed and lookout issues were deleted since they were repetitious and would be necessarily considered by the jury in the charge that defendant otherwise, carelessly and negligently, owned, operated and maintained said vehicle. In Schmidt v. Blackwell (1973), 15 Ill.App.3d 190, 197, 304 N.E.2d 113, the reviewing court held defendant’s given multiple-issue instruction “both verbose and repetitious.” Such is not the case here.

Defendant also maintains that plaintiff has on appeal waived any objection he may have had on the above instruction. He argues that plaintiff should have specified the reasons for tendering the original instruction and should have objected in the trial court to the instruction as finally tendered to the jury. We disagree. It has often been held that since the action of the court in refusing an instruction is a ruling in the proceeding, an exception thereto is not necessary to make the ruling a ground for review. (Department of Public Works and Buildings v. Barton (1939), 371 Ill. 11, 20, 19 N.E.2d 935.) The facts and circumstances in Meyer v. Polivat (1957), 13 Ill.App.2d 491, 142 N.E.2d 747, relied upon by defendant, are not analogous to those in the instant appeal. In Meyer, defendant objected to one of plaintiff’s instructions, and after tire trial court stated its intention to refuse the instruction as tendered, plaintiff offered to tender a companion instruction. Both were given, and on appeal plaintiff urged reversal, claiming that it was not necessary to demand tender of the companion instruction. At page 493 the court held that

“* # * where the court indicates he will refuse a tendered instruction unless there is a companion instruction submitted therewith, the tendering party may, at his option, suffer the refusal of the first, or prepare and tender the required companion instruction. If he chooses the latter course, he is responsible for the form he prepares and tenders.”

In the case before us, at the conference on instructions tire plaintiff objected to the court’s refusal to instruct the jury upon the issues of lookout and speed. Other than the tender of the issues instruction as modified at the direction of the court, there is no affirmative indication that plaintiff acquiesced in the ruling of the trial court. We conclude that plaintiff did not waive his objection to the instruction.

III.

Plaintiff further contends that the court erred in giving Defendant’s Instruction No. 7 and allowing defense counsel to remark on the absence of certain occurrence witnesses. The instruction, given over objection by plaintiff, stated:

“If a party to this case has failed to produce a witness within his power to produce, you may infer that the testimony of the witness would be adverse to that party if you believe each of the following elements: .
(1.) The witness was under the control of the party and could have been produced by the exercise of reasonable diligence. (2.) That witness was not equally available to an adverse party. (3.) A reasonably prudent person under the same or similar circumstances would have produced the witness if he believed the testimony would be favorable to him.
(4.) A reasonable excuse for the failure has been shown.”

The instruction as given differed from the form in Illinois Pattern Jury Instructions (IPI — 5.01) in that the last sentence of the pattern instruction reads: “4. No reasonable excuse * * (Emphasis added.) Plaintiff argues that: 1) it was error to instruct the jury as to the absence of witnesses; 2) the instruction as tendered and given was vague, conflicting and tended to confuse the jury; and 3) the trial court improperly allowed defense counsel to remark upon the absence of the occurrence witnesses.

Prior to trial, plaintiff filed answers to defendant’s interrogatories, listing as witnesses Gus and Katherine Manageris, passengers in the Panos automobile on the night in question. Upon motion of defendant, the court entered an order directing plaintiff to supply defendant with the addresses of the named witnesses who were relatives of plaintiff and, on failure to do so, barring the testimony of those witnesses at trial. The addresses were not furnished to defendant prior to trial.

Instructions and remarks of counsel on the other party’s failure to produce testimony at trial have long been considered proper in Illinois. (See Beery v. Breed (1941), 311 Ill.App. 469, 36 N.E.2d 591.) Plaintiff’s reliance upon the decision in Cicale v. Aronson (1969), 113 Ill.App.2d 324, 252 N.E.2d 114, is unfounded. There the court held that an instruction and comment upon plaintiff’s failure to produce the person who took defendant’s statement was improper since plaintiff was under no duty to produce that person. In a recent case similar to the one before us, and involving the same pattern instruction (Ballard v. Jones, 21 Ill.App.3d 496, 502, 316 N.E.2d 281), this court held that the trial court did not abuse its discretion in refusing the instruction, stating:

“Under the rule of the tendered instruction, a party is not bound to introduce every witness who might know something about the matter at issue at the risk of being burdened with an unfavorable inference because of his failure to do so. (See People v. Moore, 52 Ill.App.2d 27, 201 N.E.2d 619; 20 Am. Jur., Evidence, sec. 187.) When there are multiple occurrence witnesses, (not all of whom testify), the granting of this instruction should be within the sound discretion of the trial court. See Hildebrand v. Baltimore & Ohio R.R. Co., 41 Ill.App.2d 217, 190 N.E.2d 630.
Three of the six passengers of the Ballard vehicle testified to the occurrence, in addition to an independent occurrence witness who was brought in, at plaintiff’s expense, from California. Therefore, the testimony of both plaintiff and her husband was corroborated. Furthermore, although no competent explanation was given for the unavailability of the remaining three, they were out-of-state residents.”

Unlike the facts stated in Ballard, in the instant case, the testimony of plaintiff’s father and mother was not corroborated, and there is no evidence that Gus and Katherine Manageris were out-of-state residents. Considering the facts, we cannot say that the court abused its discretion in granting thé instruction. However, plaintiff contends that the order of court barring him from producing these witnesses at trial on his behalf made them unavailable to him. We find no merit in this argument. The witnesses were plaintiff’s relatives; he knew their whereabouts, and the effect of' the order could easily have been avoided by informing defendant of their addresses.

Plaintiffs argument that the instruction as tendered was vague and confusing must also fail. If, as defendant contends in his brief in this court, the deletion of the word “No” from the last sentence in the instruction was a typographical error, or if the deletion was intentional, no prejudice resulted to plaintiff. Instead, the jury could have inferred that the testimony of the witnesses would have been adverse to plaintiff if they found that a reasonable excuse for plaintiffs failure to produce them had been shown. Upon examination of the record we do not find any evidence to establish a reasonable excuse for the failure to produce these witnesses. Furthermore, plaintiff has not indicated in his briefs and argument before this court how the jury would be thereby confused.

IV.

Plaintiff next contends that the trial court erred in permitting defendant to testify, over the objection of plaintiff as to materiality, that on the night of the accident he was coming home from a church council meeting at St. Bernadine’s in Forest Park. Plaintiff maintains that the statement constitutes prejudicial error and characterizes counsel’s question as an attempt to show the jury that the defendant was a man of religion and good character. We note that plaintiff’s father testified that the family was coming home from seeing a movie. Does this then lead to the interpretation that the father is a good family man whose reputation for truth and veracity is beyond reproach? We think not. We find no evidence in the record that the defense pursued this line of questioning or solicited the answer to implant in the mind of each juror that the defendant was a man of religion and good character. Although the question and answer were not material to any of the issues at trial, the error, if any, in overruling plaintiffs objection to the question was at most harmless error. Compare Gilberto v. Nordtvedt (1971), 1 Ill.App.3d 677, 274 N.E.2d 139.

V.

Plaintiff contends that the court erred in allowing counsel for defendant to make the following remark to the jury in closing argument: “Any verdict that you render in this case today is going to affect these people probably for a serious number of years, not just the boy, but Mr. McMahon also.” We are cognizant of the general rule that reference to the financial status of the parties may constitute reversible error. (See Hickey v. Chicago Transit Authority (1964), 52 Ill.App.2d 132, 201 N.E.2d 742.) Plaintiff posits that “The language used by defense counsel could easily be construed that it would take a number of years for Mr. McMahon to pay off any judgment entered against him in this case.” We disagree. The language does not specifically refer to the financial status of either the defendant or the plaint'ff. A verdict for defendant could likewise affect the plaintiff financially. Counsel stated that “any verdict” rendered could affect “these people.” From the language used we cannot infer that counsel was specifically referring to a verdict against defendant or that defendant would be unable to satisfy the same for a number of years.

VI.

Plaintiff further contends that the trial court erred in refusing to include the element of disability in the instruction on damages tendered by plaint'ff. A physician testified on behalf of plaintiff that during the last examination which occurred approximately 1 month prior to trial, he observed that plaintiff walked with a slight limp. In the record on appeal, plaintiff admits that the court reporter was not present during that part of the conference on instructions where damages were discussed, that the court indicated it would refuse to instruct the jury as to the element of disability and that the trial court directed plaintiff to retype the damage instruction, deleting any reference to disability resulting from the injury. During the argument of counsel on plaintiff’s post-trial motion, the trial court stated that it had refused to instruct the jury on disability because it had seen the child running about the courtroom during the trial and no limp was noticeable at that time.

Since this matter must be remanded for a new trial for the various reasons set forth, we find it necessary to comment on this element of damages. The question may again occur upon retrial. Notwithstanding that the record does not reflect that plaintiff objected to the trial court’s refusal to so instruct the jury, we find that the refusal to do so would have consituted an abuse of discretion. There was testimony that plaintiff had a slight limp. In a jury trial, the several men and women selected to serve are the triers of fact. If no limp were noticeable at the time of trial, it was for them to determine, after hearing testimony and observing both the witnesses and the parties, that no disability resulted from the accident.

Also, since the case necessitates a remand, we find it unnecessary to discuss plaintiffs final contention that the verdict is against the manifest weight of the evidence.

For the reasons stated, the judgment of the trial court is reversed and the matter is remanded for a new trial consistent with the views expressed herein.

Reversed and remanded.

McGLOON and DEMPSEY, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DEMPSEY.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lewis McAfee, Defendant-Appellant.
    (No. 56487;
    First District (3rd Division)
    October 17, 1974.

      Paul Bradley and Richard D. Thomas, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Marianne Jackson, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE DEMPSEY.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Staples, Defendant-Appellant.
    (No. 59008;
    First District (3rd Division)
    October 17, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant,
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry O. Chalmers, Defendant-Appellant.
    (No. 59254;
    First District (3rd Division)
    October 17, 1974.
    James J. Doherty, Public Defender, of Chicago (John X. Breslin, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Mary Ellen Dienes, and Larry L. Thompson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Kurzydlo, Defendant-Appellant.
    (No. 59329;
    First District (3rd Division)
    October 17, 1974.

      Rehearing denied November 26, 1974.

      James J. Doherty, Public Defender, of Chicago (Anthony Pinelli, Thomas Lipscomb and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Alan L. Fulkerson, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Defendant, Richard Kurzydlo, together with Jerome Cehoda and Frank Wilk, was indicted for robbery. Cehoda and Wilk pleaded guilty and defendant was found guilty by a jury. Defendant was sentenced to the State penitentiary for a term of 6 to 18 years.

On appeal, defendant contends that he was denied a fair jury trial in that (I) the prosecutor in closing argument (a) emphasized defendant’s failure to call alibi witnesses when no alibi defense had been presented, and (b) misstated defendant’s testimony concerning his actions at the time of the offense; and (II) that the court erred in giving an instruction as to an admission. No challenge is made to the sufficiency of the evidence.

The indictment charged that defendant, Cehoda and Wilk, on October 13, 1971, by the use of force and threat of force took money and cartons of cigarettes from one Douglas Thomas while he was employed as an attendant at a Clark gas station located at 7151 South Western Avenue in Chicago. Cehoda and Wilk appeared as witnesses for the prosecution. The pertinent facts follow.

Jerome Cehoda testified that he, defendant, defendant’s sister, Wilk, and Nancy Skelton went to the Clark gas station at about 10:30 P.M., on October 13, 1971. There they met defendant’s girl friend, Valerie Scott, and a man known only as Manuel. Following a quarrel with Valerie, defendant left to walk her home about 10 or 15 minutes after they had arrived, and returned alone some 5 minutes later. Prior to the robbery, defendant gave money to his sister and Nancy to take a taxi, and they left for home. While the attendant was outside, defendant asked Cehoda, Wilk and Manuel to help rob the attendant, and they agreed. Cehoda testified that the robbery occurred an hour and a half or 2 hours after they had arrived. When the attendant came back into the station after servicing a car, they had their plan set. Manuel approached the attendant with $5 and asked to purchase a carton of cigarettes which were kept in a locked room. As soon as the attendant opened the door, defendant, Cehoda and Manuel pushed him into the room. Manuel threatened him with a rake to his face while Cehoda went through his “top pockets” and defendant through his “bottom pockets.” Manuel grabbed some cigarettes. They locked the attendant in the room and fled to a nearby railroad where they divided the money and cigarettes.

Douglas Thomas, the attendant, testified that he was robbed at about 12:20 A.M., by the four people who had been at the station for an hour and a half or 2 hours. His testimony was substantially the same as that of Cehoda. Thomas stated that he had seen defendant previously but did not know his name. He identified him as the offender who went through his pants pockets. In addition to the cigarettes, about $150 was taken from his person. He identified defendant from a group of 30 to 35 photographs at a police station, and also at a lineup.

Defendant testified that he arrived at the gas station at about 10 P.M., but left soon after to walk his girl friend home. Upon his return 5 or 10 minutes later, he observed Cehoda, Wilk and Manuel forcing the attendant into the back room of the station. Defendant testified that he turned and left the station because he did not want any part of it. He did not call the police but took a bus to his home. He stated that he arrived home about 11 P.M., and remained there the rest of the night with his mother, father and sister. He denied any participation in the robbery in any manner.

Frank Wilk testified for the State on rebuttal. He testified that after defendant returned to the gas station, defendant proposed to him that they rob the attendant. He first refused, but later defendant told him all he had to do was to stand watch at the door, to which he agreed. He stated the robbery occurred at about 12:15 A.M., and that he stood at the front door while defendant, Cehoda and Manuel forced the attendant into the back room. He saw defendant give Manuel $5 and heard him tell Cehoda and Manuel that the only way to get into the storeroom was to ask for a carton of cigarettes. After the three came out and locked the attendant in the storeroom, they ran to the tracks and divided the money. He went home about 1:30 or 2 A.M.

During cross-examination by defendant’s counsel as to why he pleaded guilty, Wilk testified:

“No. Like when he got picked up, like when he got brought down to the [police] station Richie was there and like he said you don’t got nothing to worry about. They ain’t got nothing. They ain’t got nothing. So say you don’t know nothing about it and we will beat the case in court.”

Based on the quoted statement by Wilk, People’s Instruction No. 8, IPI — Criminal No. 3.06, was given, which read:

“You have before you evidence that the defendant made an admission of a fact or facts relating to the crime charged in the indictment. It is for you to determine whether the defendant made the admission, and if so, what weight should be given to the admission. In determining the weight to be given to an admission, you should consider all of the circumstances under which it was made.”

During closing arguments, the prosecutor in rebuttal told the jury:

“Mr. Kurzydlo’s lawyer has told you that it is difficult for a man who is charged with a crime and is charged with participating in the crime to prove that he did not participate and to call witnesses to prove that he was not there. Why is it so difficult? He has the ability to call witnesses just as I do. You heard him testify he was home with his mother, father and sister when this crime was committed. The defendant testified. What was so difficult to produce other witnesses. What was so difficult in having your mother, your father or your sister come into court to testify.”

Defendant made no objection to the prosecutor’s statement at trial.

I.

Defendant contends that statements made by the prosecutor in closing arguments denied him a fair jury trial although in neither instance urged on appeal was any objection raised at trial. Although we have some reservations as to their propriety, it is unnecessary to reach the merits of defendant’s contentions concerning the remarks made. The rule is well established that the failure to object to allegedly improper closing argument waives any error therein for purposes of appeal. (People v. Moore (1973), 55 Ill.2d 570, 304 N.E.2d 622; People v. Skorusa (1973), 55 Ill.2d 577, 304 N.E.2d 630; People v. Nuccio (1973), 54 Ill.2d 39, 294 N.E.2d 276; People v. Arnold (1974), 17 Ill.App.3d 1043, 309 N.E.2d 89.) Furthermore, the closing remarks of the prosecutor do not rise to the level of plain error under Supreme Court Rule 615(a). (Ill. Rev. Stat. 1973, ch. 110A, par. 615(a).) Defendant has not challenged the sufficiency of the evidence to establish his guilt. Moreover, a review of the record in the instant case leads to the conclusion that the verdict which was returned was the only reasonable one which could have been reached on the basis of the evidence presented. While complaint of serious prejudicial argument may be considered on appeal, even though no objection was made at trial, in order to be so recognized the allegedly improper argument must have played a significant factor in the jury’s determination. (People v. Moore, supra; People v. George (1971), 49 Ill.2d 372, 274 N.E.2d 26.) Upon the record herein, the statements of the prosecutor were not of such serious character to be a material factor in the defendant’s conviction, nor were they of such probable prejudice to require reversal.

II.

Defendant further contends that People’s Instruction No. 8 as to admissions was improperly given to the jury because the statement of defendant upon which it was based did not constitute a viable admission. Defendant first argues that since his exercise of the privilege to remain silent could not be used against him under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, the State could not equate defendant’s request to his co-defendant Wills to remain silent to exercise that right with an admission implying defendant’s guilt. Defendant further argues that his statement to Wilk at the police station was not an admission in that it did not carry the necessary implication of guilt, and that the statement is at most only an expression of defendant’s belief that the charges against him and the others could not be proved.

We reject defendant’s first argument. The privilege against self-incrimination is a personal right which cannot be invoked by or for a third party- (Hale v. Henkel (1906), 201 U.S. 43,50 L.Ed. 652.) Furthermore, the protection afforded by Miranda does not encompass statements made to a private individual, as distinguished from a law enforcement official, even after an accused is in custody or otherwise significantly deprived of his freedom. People v. Morehead (1970), 45 Ill.2d 326, 259 N.E.2d 8.

We now consider defendant’s second argument. An admission is a statement by an accused of fact or facts which, when taken in connection with proof of other facts, may lead to an inference of guilt of the crime charged, but from which guilt does not necessarily follow. (People v. Stanton (1959), 16 Ill.2d 459, 158 N.E.2d 47; People v. Hobbs (1948), 400 Ill. 143, 79 N.E.2d 202; People v. Saunders (1971), 132 Ill.App.2d 421, 270 N.E.2d 217.) However, there must be sufficient evidence in tire record to support an instruction lest the jury be confused by issues improperly before it. (People v. Bernette (1970), 45 Ill.2d 227, 258 N.E.2d 793, revd on other grounds, 403 U.S. 947, 29 L.Ed.2d 858, 91 S.Ct. 2290, 2291.) “It is the danger that the jury may be misled into believing that in the opinion of the court the evidence would support a finding that the facts exist upon which the proposition of law is based. (People v. Corbishly, 327 Ill. 312.)” People v. Banks (1962), 26 Ill.2d 259.

In the instant case, defendant’s statement, “You don’t got nothing to worry about, they ain’t got nothing. So say you don’t know nothing and we will beat the case in court” does not constitute an admission which would lead to an inference of guilt. Defendant, as well as Wilk, had a right to remain silent. The statement appears to be an expression of defendant’s belief that the charges against them could not be proved. We conclude that the trial court erred in giving People’s Instruction No. 8 to the jury.

However, a reversal is not warranted in this case. Where an improper instruction is given to a jury, reversal is inappropriate unless it can be said that a defendant was so prejudiced by the instruction as to affect the outcome of the verdict. (People v. Stewart (1970), 46 Ill.2d 125, 262 N.E.2d 911; People v. Parks (1971), 133 Ill.App.2d 348, 273 N.E.2d 162.) The giving of the instant instruction was harmless error which does not justify reversal since the evidence of guilt is so clear and convincing. (People v. Haygood (1965), 60 Ill.App.2d 70, 208 N.E.2d 373.) We have already stated that the jury returned the only reasonable verdict which could have been reached from the evidence presented. The instruction could not have affected the outcome at trial.

Judgment affirmed.

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


author: Mr. JUSTICE MEJDA.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Curtis Stillwell, Defendant-Appellant.
    (No. 59371;
    First District (3rd Division)
    October 17, 1974.

      James J. Doherty, Public Defender, of Chicago (Matthew J. Beemster-boer and Ronald P. Alwin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE MEJDA.


author: Mr. JUSTICE DEMPSEY

text:
    Steven Toushin et al., d/b/a Stratford-on-Avon, Plaintiffs-Appellants, v. The City of Chicago et al., Defendants-Appellees.
    (No. 59707;
    First District (3rd Division)
    October 17, 1974.

      Patrick A. Tuite and Angelo Ruggiero, both of Chicago, for appellants.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quin-lan and Jerome A. Siegan, both Assistant Corporation Counsel, of counsel), for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

This is an interlocutory appeal by the plaintiffs, Steven Toushin and Jerry Krule, from an order which (a) denied their motion for a temporary injunction restraining the City of Chicago and its superintendent of police from interfering with the operation of their business, and (b) granted the City’s motion for an order forbidding them from conducting their business within the City’s limits.

Toushin and Krule, on July 3, 1973, opened an establishment known as Stratford-on-Avon at 4411 North Broadway in the City of Chicago. On July 5, and each of several days following, City police arrested the manager and employees of Stratford and charged them and the plaintiffs with operating a massage parlor without a license and with permitting female employees to massage male patrons, all in violation of chapter 152 of the Municipal Code of Chicago. The plaintiffs responded on July 16 by filing this action. Their complaint alleged irreparable harm from the repeated raids and sought a declaration of the unconstitutionality of chapter 152, as well as temporary and permanent injunctions.

The asserted bases of the ordinance’s infirmity were: that the State has not expressly delegated to municipalities the power to regulate massage parlors; that the City’s ordinance was vague and lacked standards and guidelines necessary to prevent arbitrary administration; that its prohibition against massages by members of the opposite sex discriminated on the basis of sex in violation of the Illinois Constitution, article I, section 18. The plaintiffs further contended that they did not need a license to operate under a void ordinance and that even if the enactment was valid it did not apply to their particular business, which they styled a “sensitivity center” and a private club.

The City answered and counterclaimed, seeking temporary and permanent injunctions against the operation of Stratford. Its position was that ample authority justified enactment of the ordinance under the police powers derived from its charter and several statutes; that the law was reasonably related to the ends to be served — protecting the public health and welfare and community morals; that this applied with special force to the requirement that females not administer massages to male patrons. The counterclaim characterized Stratford as a masturbatory-massage parlor, in which the massages administered were for the purpose of sexual arousal and the gratification of clients, and allege that irreparable harm and a multiplicity of litigation would result from the continued operation of the business. It was alleged that the plaintiffs’ attempt to distinguish Stratford from massage parlors regulable under chapter 152 because it was a private club and sensitivity center had no substance, since “membership” was available to anyone willing to pay a $5 fee; that the purported restrictions on immoral behavior included in the membership agreement were not enforced and the only service actually provided was the sexually oriented massage.

At the hearing on the motions, only one witness appeared for each side. Michael Lescher, Stratford’s assistant manager, described the physical layout of the establishment, the conditions of membership, and the extent to which employees were supervised. The premises consisted of a reception room, a recreation or waiting room containing refreshments and a pool table, a locker and shower area, and nine 6' x 7' cubicles in which massages were given. These rooms were semi-private, with doorways covered by curtains.

Potential customers were first required to join the club which, admittedly, had neither officers nor directors. Life membership was available at a cost of $5 and was conditioned on the applicant’s signing an agreement that he would not request, offer or agree to perform any act of prostitution with any of Stratford’s employees, and declaring that he was at least 18 years of age and was not worldng for any law-enforcement agency. Stratford’s female employees numbered approximately 15. They too were required to sign an undertaking; by it they agreed not to perform acts of prostitution with members, under threat of dismissal. Their attire was left to their own taste, subject to the requirement that some form of pants and top be worn.

Lescher testified that the club’s purpose was to provide a place of relaxation for its members. As he described it, a member typically would enter the recreation room, where several female employees would be waiting. From the recreation room the member would proceed to one of the booths, where he would receive a “sensitivity rub” from one or more employees. Fees for the rubs began at $20 for a half-hour massage by a single employee and progressed upward to $100, varying in price according to the duration of the rub and the number of participating masseuses. Such skills as these employees possessed were imparted to them in occasional sessions of instruction by a licensed masseur, whom Lescher remembered only by the name of Tony. Supervision of the operation consisted of periodic walks past the massage booths by the manager on duty, who would not observe the activities, but instead listened to “see if we can hear if anything is going on beyond what’s allowed.” Notwithstanding the six raids by police during the times Lescher was on duty, and the arrest each time of several employees on charges which included prostitution, he maintained that to his knowledge there had been no violations of the rules against such acts and that no employees had been dismissed for such a reason. But there was no rule against the fondling of a customer’s genitals in the course of a massage, since that was believed to be activity outside the scope of the prohibitions of the law against prostitution. Ill. Rev. Stat. 1971, ch. 38, par. 11 — 14.

Andrew Murcia, an officer in the Vice Control Division of the Chicago Police Department, testified that on July 5, 1973, he registered as a member. At tire time he was handed a paper listing the rules of behavior, but they were not explained. Once admitted, he was told that it would cost him $20 for a half-hour. The receptionist tiren conducted him to the recreation room, which was occupied by several young women in flimsy pajamas and transparent costumes. One of them greeted him and led him to one of the massage booths, where she told him to remove all his clothing and climb onto a table. He did as she instructed; for a short while, as he lay on his stomach, she massaged his back, legs, neck and shoulders with a lotion. She then told him to turn over. When he had done so, she said he could fondle her breasts, which she had bared, and then began to fondle his penis. When told not to continue, she replied, “Well, how else can I make you come?” They then were interrupted by tire appearance of arresting officers. While they dressed, the girl, still unaware that Murcia was a policeman, took $10 payment in return for her promise that the next time he came she would permit him to perform an act of cunnilingus.

The purpose of a temporary injunction is to prevent a threatened wrong or further perpetration of an injury pending a full hearing on the merits of the case. (H.K.H. Development Corp. v. Metropolitan Sanitary District (1964), 47 Ill.App.2d 48, 196 N.E.2d 494.) In order to obtain the writ a party is not required to make out a case which will in all events warrant relief at the final hearing. (Aurora v. Warner Bros. Pictures Distributing Corp. (1958), 16 Ill.App.2d 273, 147 N.E.2d 694.) It is only necessary for the petitioning party to raise a fair question as to the existence of the right claimed, lead the court to believe that he probably will be entitled to the relief prayed for if the proof should sustain his allegations, and make it appear advisable that the positions of the parties should stay as they are until the court has the opportunity to consider the case on the merits. (Frederick Chusid & Co. v. Collins Tuttle & Co. (1973), 10 Ill.App.3d 818, 295 N.E.2d 74.) The motion is addressed to the sound discretion of the trial court; its determination ordinarily follows an attenuated offer of evidence and argument as to controlling principles of law. Accordingly, the role of an appellate court when reviewing the grant or denial of an interlocutory decree is restricted solely to a determination whether the judge correctly exercised his broad discretionary power. Frederick Chusid & Co. v. Collins Tuttle & Co.

In support of their appeal, the plaintiffs have renewed and amplified the arguments presented to the trial court. They assert the following: (1) the underlying ordinance is void because it exceeds the City’s powers under its charter and because it lacks standards or guidelines and thus leaves arbitrary enforcement powers in the hands of City officials; (2) the ordinance is further void because it denies equal protection and due process of the law by segregating the sexes; (3) the court’s finding that plaintiffs’ business was a public nuisance was unjustified by the evidence and the court could not enjoin the activity solely because it involved what the court believed to be the commission of a crime; and (4) the court’s formulation of the decree exceeded the proper scope of a temporary injunction, altering rather than preserving the status quo, and in fact decided the case on tire merits, thus depriving the plaintiffs of a trial. They seek reversal and remandment for reconsideration of the denial of their own motion, of the order granting the temporary writ requested by the City, and of the court’s preliminary finding as to the constitutionality of chapter 152.

We must first stress that the substantive issues are not before us for resolution. They were not finally decided by the trial court and we will not decide them now. (Frederick Chusid & Co. v. Collins Tuttle & Co.) Rather, each will be examined only so far as is necessary to our inquiry as to whether the court acted within the bounds of proper discretion.

Concerning the challenges to the validity of chapter 152, the City cited to the trial court a number of provisions in the Cities and Villages Act delegating powers to municipalities to pass and enforce all necessary police ordinances, to suppress bawdy or disorderly houses and houses of assignation, to prevent prostitution, and to make all regulations necessary or expedient for the promotion of health or suppression of diseases. (Ill. Rev. Stat. 1971, ch. 24, pars. 11 — 1—1, 11 — 5—1, 11— 5 — 4, 11 — 20—5.) Individually or collectively they could be construed to support an implied delegation to the City of powers to license and control massage parlors. Moreover, the courts have enforced chapter 152 over its long history. (See People ex rel. Anderson v. City of Chicago (1941), 312 Ill.App. 187, 37 N.E.2d 929 [abstract opinion].) This, plus the general rule that ordinances and regulations adopted under the police power are presumed valid and will not be disturbed unless shown to be palpably arbitrary or unfair (see Schuringa v. City of Chicago (1964), 30 Ill.2d 504, 198 N.E.2d 326, cert. denied, 379 U.S. 964), support the court’s decision. It was well within the court’s discretionary power, relying on these commonly held principles, to enter its preliminary finding upholding the validity of chapter 152, pending a more complete consideration of the law at the final hearing. The fact that the plaintiffs also raised issues of due process and equal protection in their attack on the so-called segregation of sexes does not alter this conclusion. While the equal protection issue is a serious one (see Cianciolo v. Members of City Council (E.D. Tenn. 1974), 376 F.Supp. 719), normally an attack on the constitutionality of a statute should not be resolved upon application for a temporary injunction. (LeBaron v. Los Angeles Building & Construction Trade Council (S.D. Cal. 1949), 84 F.Supp. 629, aff’d (9th Cir. 1950), 185 F.2d 405; 16 C.J.S. Constitutional Law, § 95, at 329 (1956).) The delay entailed by this deliberate approach works no harm on Stratford’s owners. Even if the ordinance had been voided as unconstitutional, Stratford was still subject to the court’s equitable powers to declare it a public nuisance and enjoin its operation on that ground. Cianciolo v. Members of City Council.

The court’s memorandum included preliminary findings that the operation of the plaintiffs’ unlicensed business in continuous and open violation of chapter 152 was a public nuisance, and that the circumstances justified issuance of an injunction against the commission of a crime. The plaintiffs argue that there was no showing to support the conclusion that a public nuisance- existed, and that the court had no authority in equity to enjoin the tiOinmission of a crime.

As a general rule, equity will not enjoin criminal and quasi-criminal acts. This proceeds from a recognition that the legislature by invoking the criminal sanction has expressed a preference for the form which punishment should take. It is also grounded in the fear that rights guaranteed to criminal defendants may be circumvented by proceeding against such persons through a juryless civil action. However, exception is made to the general rule “* * * when the act complained of constitutes a menace to the public health, safety or welfare, and where the enforcement of the criminal law is merely incidental to the general relief sought.” (City of Chicago v. Larson (1961), 31 Ill.App.2d 450, 454, 176 N.E.2d 675.) Equity looks to substance and not to form. If the underlying purpose of an unjunctive order is to prevent interference with the City’s obligation to protect its citizens, the court’s hands will not be bound merely because the activity sought to be restrained also constitutes a criminal offense. Aurora v. Warner Bros. Pictures Dist. Corp. (1958); City of Chicago v. Larson.

The court’s summation made clear that the question of criminality was not uppermost:

“* * * [A]t a minimum what is being conducted here is a massage parlor which is not duly licensed under Chapter 152 of the Municipal Code of Chicago. What appears to be in operation here beyond that is the conduct of something that may or may not be short of a house of prostitution. Whether it is or it is not, it is clear that this type of activity has a deleterious effect upon the morals and welfare of the community.”

Indeed, the available evidence tended to show that the plaintiffs’ objective from the first was to pursue activities which bordered on illegality without quite crossing into it. To avoid licensing and regulation under chapter 152, the business was termed a private club while massages became sensitivity rubs; the supposed loophole in the laws against prostitution was relied upon to support the legality of what was nevertheless blatantly sexual massage. Precisely because the criminality of the plaintiff’s operation was uncertain, we believe the public nuisance doctrines of Warner and Larson are especially apt in this case. The court’s finding that Stratford was a public nuisance amenable to restraint constituted no abuse of discretion.

But the discretion to restrain the operation of nuisances is not an unfettered one. The injunction must be reasonable and should go no further than is essential to safeguard the rights of the petitioner. (Kessie v. Talcott (1940), 305 Ill.App. 627, 27 N.E.2d 857.) The interlocutory decree awarded the City was of such scope that far from preserving the issues of the case it had the effect of finally deciding them. The decree, which restrained tire plaintiffs from “operating their business at 4411 North Broadway, Chicago, Illinois, or at any other location within the City of Chicago # # *” was overbroad and the cause must be remanded for its modification.

When criminal offenses are carried on in a manner which makes the place of their occurrence a nuisance, equity will intervene to order abatement of the nuisance, but the decree runs only against the nuisance, not the illegal or immoral practices themselves. It is the place of the nuisance which is enjoined. (People ex rel. Barrett v. Fritz (1942), 316 Ill.App. 217, 45 N.E.2d 48.) A statutory exception exists under the act govrning public nuisances (Ill. Rev. Stat. 1971, ch. 1OO11/2, par. 1 etseq.), which provides for county-wide injunctions against the operation of houses of prostitution. However, this cause was not brought under that statute. The effect of this decree was to enjoin hypothetical prospective nuisances at other places. By doing so it failed to recognize that the sources of classification as a nuisance might be abated, and thus it exceeded its proper scope.

The plaintiffs suggest that the status quo would better have been preserved by an order prohibiting the police from interfering with their operation pending a disposition at the final hearing. As the City points out, to grant such relief would be tantamount to immunization of the business against the need to observe the law, and would be at least as conclusive of rights as the order which was actually granted. Cf. Kleins Restaurant Corporation v. McLain (1937), 293 Ill.App. 54, 11 N.E.2d 644.

The order of the court is affirmed, but the cause is remanded for reformulation of the decree in a manner not inconsistent with this opinion.

Affirmed and remanded.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John W. Narducy, Defendant-Appellant.
    (No. 59904;
    First District (3rd Division)
    October 17, 1974.

      Edwards, Haney, Singer & Stein, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE McNAMARA.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Jerome Zacharia, Defendant-Appellee.
    (No. 59938;
    First District (3rd Division)
    October 17, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Linda West Conley, and Forrest M. Tatel, Assistant State’s Attorneys, of counsel), for the People.
    Frederick F. Cohn, Julius Lucius Echeles, and Constantine P. Xinos, all of Chicago, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE McNAMARA.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Henry Johnson, Defendant-Appellee.
    (Nos. 59956-7 cons.;
    First District (3rd Division)
    October 17, 1974.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
    No appearance for appellee.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Woodin, Defendant-Appellant.
    (No. 59992;
    First District (3rd Division)
    October 17, 1974.
    James J. Doherty, Public Defender, of Chicago (Terrence McQuigg and Matthew J. Beemsterboer, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alexander Pujoue, Defendant-Appellant.
    (No. 59032;
    First District (3rd Division)
    October 17, 1974.
    James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Alexander Pujoue, was convicted following a bench trial of unlawful use of weapons in violation of section 24 — 1(a) (10) of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 1(a) (10)) and sentenced to 90 days in the House of Corrections. In this appeal, he contends that the complaint upon which he was tried was fatally defective and that he was not proven guilty beyond a reasonable doubt.

We reverse.

The defendant’s first contention on appeal is that the complaint failed to charge a crime. The complaint alleged:

“Officer W. Gehl complainant, * * * states that Alexander Pujoue has, on or about 4 Nov 1972 at Arthington & Kedzie, Cook County 111 committed the offense of UNLAWFUL USE OF WEAPONS in that he knowingly carried (on or about his person) a firearm to wit: 32 Cal H & R Revolver Serial Number AJ 77584 in violation of Chapter 38, Section 24 — la4—10 * # *.
/s/ Wayne Gehl #14715 (Complainant’s Signature)
A/4 SOG 744-4000
(Complainant’s Address) (Telephone No.)”

The offense of unlawful use of weapons is defined in section 24 — (a) (10) (Ill. Rev. Stat. 1973, ch. 38, par. 24 — 1(a) (10)), which provides: “§ 24 — 1 Unlawful Use of Weapons.

(a) A person commits the offense of unlawful use of weapons when he knowingly:

ft ft ft

(10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm.”

The Code of Criminal Procedure (Ill. Rev. Stat. 1973, ch. 38, par. 111 — 3 (a)(3)) provides that:

“(a) A charge shall be in writing and allege the commission of an offense by:
ft ft ft

(3) setting forth the nature and elements of the offense charged.” The defendant contends that the complaint did not state that the firearm was loaded, and therefore failed to set forth an element of the offense. We agree.

It is a fundamental rule of criminal pleading that a complaint which does not set forth the nature and elements of the crime sought to be charged fails to state an offense and is subject to dismissal. People v. Billingsley (1966), 67 Ill.App.2d 292, 213 N.E.2d 765.

In the instant case, the complaint failed to allege that the pistol was loaded. Inasmuch as the term “a firearm to wit: 32 Cal H & R Revolver” does not necessarily involve a loaded firearm in violation of the statute, we hold that the complaint failed to allege an offense. Where a conviction rests on such a complaint, we will reverse without remand. People v. Leach (1972), 3 Ill.App.3d 389, 393, 279 N.E.2d 450, 452.

In view of this holding, it will not be necessary to discuss the defendant’s other contentions.

For the aforementioned reason, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

McNAMARA, P. J., and MEJDA, J., concur.