author: Mr. JUSTICE LEIGHTON

text:
    Stanley L. Goodfriend et al., Plaintiffs-Appellees, v. The Board of Appeals of Cook County et al., Defendants-Appellants.
    (Nos. 56421(A), 56421(B) cons.;
    First District (2nd Division)
    November 13, 1973.

      Edward V. Hanrahan, State’s Attorney, of Chicago (Theodore M. Swain, Special Assistant State’s Attorney and Thomas E. Brannigan, of counsel), for appellants.
    Kirkland & Ellis, of Chicago (Don H. Reuben, Lawrence Gunnels and John E. Angle, of counsel), for appellees North Marina City Building Corporation and Harris Trust and Savings.
    Charles A. Bane, David J. Rosso and Patrick B. Long, of Isham, Lincoln & Beale, of Chicago, for appellees Stanley L. Goodfriend et al.

    Thomas D. Flanagan, of Chicago, for appellee LaSalle National Bank.
    John J. Sullivan and William J. Harte, both of Chicago, for appellee Mid-Continental Realty Corporation.
   Mr. JUSTICE LEIGHTON

delivered, the opinion of the court:

These are six appeals from judgments permanently enjoining the collection of certain 1970 real estate taxes in Cook County. Originally, they were taken directly to the Supreme Court on the ground that revenue was involved and public interest required expeditious resolution of the issues presented. A justice of that court, in vacation, consolidated the cases but reserved the question of jurdisdiction for decision in the full term. On September 16, 1971, orders were entered transferring the appeals to us for disposition.

I.

Five issues are presented for review. (1.) Whether a common law writ of certiorari is the proper procedure by which to review the decision of a board of appeals. (2.) Whether, in one of the certiorari proceedings, it was error for the trial court to strike from the record a letter which appellants contended established a material fact. (3.) Whether, under the Revenue Act of 1939, to correct errors of judgment as to valuation, the County Assessor of Cook County had the authority to file with appellant Board of Appeals certificates of correction by which he proposed increases in the assessed valuation of real estate. (4.) Whether the appellant Board had jurisdiction to hear and rule on three certificates of correction filed by the County Assessor to correct errors of judgment as to> the valuation of the real estate involved. (5.) Whether by filing complaints which only questioned the jurisdiction of appellant Board of Appeals, a taxpayer waives his objection that the County Assessor did not give him notice and an opportunity to be heard before the assessed valuation of his real estate was increased in a nonquadrennial year. These issues arise from the following facts.

II.

In 1970, plaintiffs-appellees Stanley L. Goodfriend, Louis R. Solomon, Albert Robin, George Dovenmuehle and Arthur Rubloff, partners in four limited partnerships; North Marina City Building Corporation; Mid-Continental Realty Corporation; Harris Trust and Savings Bank, Trustee of Trust No. 30980 and La Salle National Bank of Chicago, Trustee of Trust No. 39814, were the owners of real estate in Cook County, Illinois. Defendants-appellants Board of Appeals of Cook County; George M. Keane and Harry H. Semrow, its members; P. J. Cullerton, County Assessor of Cook County; Edward J. Barrett, Cook County Clerk; Bernard J. Korzen, Cook County Treasurer and Robert J. Lehnhausen, Director, Illinois Department of Local Government Affiairs, were responsible, respectively, for the correction of erroneous assessment of property in the county, assessment of property for tax purposes, extension of taxes and issuance of warrants for their collection, collection of the taxes levied in accordance with law and the equalization of assessed valuations on taxable property in Illinois.

In the Cook County townships where appellees owned real estate, 1970 was a nonquadrennial year. Harris Trust and Savings Bank held title to the Brunswick Building in Chicago, a multi-story office structure in South Chicago Township which had a 1969 assessed valuation of $4,970,653. On or about December 12, 1970, Harris Trust received a notice from appellant County Assessor that on December 21, 1970, in his office, he was going to hold a hearing to consider an increase in the assessment of the Harris Trust real estate for 1970 taxes. Mid-Continental Realty Corporation owned seven parcels of real estate in North Township, City of Chicago, all improved with multi-story apartment buildings. On February 16, 1971, the corporation received a notice from the Assessors office stating that the seven parcels had been incorrectly assessed for 1970, and that the Assessor was instituting a correction “* * * which results in an increase in your real property assessment for 1970.” Therefore, the notice said, on February 26, 1971, also in the Assessors office, “* • * * [a] hearing will be held * * * at which you will have the opportunity of presenting any facts you may have bearing on the value of your holding.” LaSalle National Bank, whose realty was assessed for 1969 taxes at $2,826,014, also received a similar notice notifying it of a hearing on the same day, and for the same purpose.

As required by law, appellant Cullerton, as the County Assessor, on February 18 and 19, 1971, completed his work on the 1970 real estate assessments for North and South Chicago townships in the county. He forwarded the assessment books to appellant the Board of Appeals. Those books and collateral records showed that when the Assessor had completed his 1970 assesments for the townships involved, that is, a week before the February 26 hearings for which he had given notices, he had increased the assessed valuation of the real estate owned by Harris Trust, Mid-Continental and LaSalle National. In complaints they later filed before appellant Board, Harris Trust, Mid-Continental and LaSalle National attacked the Board’s jurisdiction and objected to the increased assessments on the ground that the Assessor did not give them a hearing before he increased the assessed valuation of their real estate. The Board rejected the objections and confirmed the increases.

The real estate owned by the Goodfriend partners consisted of five tracts of land in North Township improved by a residential and office complex known as Carl Sandburg Village in Chicago. In 1969, this real estate was assessed a total of $7,258,820. North Marina City Building Corporation owned a parcel, also in North Township, which had a 1969 assessed valuation of $1,470,080. Mid-Continental Realty Corporation, in addition to its seven North Township parcels, owned real estate in Lakeview Township which had .a total assessment of $9,402,482. On April 7, 1971, the Goodfriend, North Marina City and Mid-Continental (as to its Lakeview Township real estate), received notices from appellant Board that, as to each of them, the County Assessor had filed with it a certificate of correction by which he proposed an increase in the assessed valuation of their respective real estate. The notices stated “[t]he Cook County Assessor claims that an error (other than an error of judgment as to value) was discovered after the 1970 assessments were completed.” For the Goodfriend partners, the certificates of correction showed that the proposed increase was $4,426,340; for Marina City Building, $1,512,-783; for Mid-Continental, $2,739,153.

In later proceedings before appellant Board, Goodfriend, Marina City and Mid-Continental attacked the Board’s jurisdiction and objected to the proposed increases, on the ground that they were based on the Assessor’s error of judgment as to valuation of their real estate; and that despite their rights under the revenue laws, they had neither received a notice nor had a hearing prior to the Assessor’s having determined the amount by which the 1970 assessed valuation of their real estate was to be increased. On April 19, 1971, appellant Board sustained its jurisdiction, overruled the objections and confirmed the Assessor. Thereafter, Goodfriend, Marina City and Mid-Continental filed individual suits to permanently enjoin collection of the real estate taxes based on the increased assessments. The complaint in the Mid-Continental suit added a count for a writ of certiorari requiring appellant Board to certify to the court the proceedings it had undertaken pursuant to the certificates of correction filed by the Assessor.

In separate suits, Mid-Continental, as to its seven parcels in North Township, Harris Trust and LaSalle National, filed a two-count complaint. One count prayed for a permanent injunction against collection of the increased assessments and another petitioned for issuance of a writ of certiorari directing the appellant Board to certify to the trial court the proceedings by which it confirmed the Assessor. The trial court ruled that certiorari was “eminently proper” and issued the writs which had been prayed for in four of the six suits. After hearing evidence and reviewing the record shown on return of the writs, the trial court found that contrary to their rights under the revenue laws, Harris Trust, Mid-Continental Realty (as to its North Township real estate) and LaSalle National Bank were not given a hearing by the County Assessor before he increased the assessed valuation of their real estate for 1970 taxes. As to the certificates of correction in which the Assessor proposed increases in the assessed valuation of the real estate owned by the Good-friend partners, North Marina City Building Corporation and Mid-Continental Realty Corporation (the parcels in Lakeview Township), the trial court found that no hearing was given the affected taxpayers prior to the Assessor’s determination of the proposed increases, or prior to the filing of the certificates; and that the certificates were based on the Assessor’s errors of judgment as to valuation, an invalid use of a certificate of correction. The trial court filed a memorandum concluding that all the increased assessments were void; and that appellants, in their respective capacities, could not enforce them. Therefore, in the four cases where writs of certiorari had issued, the proceedings before the Board of Appeals and the Assessor were quashed; and in all the cases, collection of the 1970 real estate taxes based on the increased assessments was permanently enjoined.

III.

It is the law in this State that circuit courts have the power to issue common law writs of certiorari addressed to all inferior tribunals whenever it is shown either that they have exceeded their jurisdiction or have proceeded illegally, and no direct appeal or other mode of direct review of their proceedings is provided. (People ex rel. Loomis v. Wilkinson, 13 Ill. 660; Doolittle v. Galena and Chicago Union R.R. Co., 14 Ill.381; Kinsloe v. Pogue, 213 Ill. 302, 72 N.E. 906.) This law calls attention to the fact that by provisions in the Revenue Act of 1939, the legislature has vested appellants Board of Appeals, Keane and Semrow (its members), with the power to decide the property rights of others, a power which when exercised makes then- official actions judicial. (McKeown v. Moore, 303 Ill. 448, 453, 135 N.E. 747.) However, when considered in relation to the circuit court, the Board of Appeals is an inferior tribunal. Jarman v. Board of Review of Schuyler County, 345 Ill. 248, 178 N.E. 91.

Taxation of property is a function that is legislative rather than judicial, and under the limitations expressed in section 1, article IX of the Illinois constitution, courts of this State do not possess authority to directly review a decision of the Board of Appeals. (White v. Board of Appeals of Cook County, 45 Ill.2d 378, 259 N.E.2d 51.) With the exception of actual or constructive fraud, instances which can be occasion for injunctive relief, the Board’s administrative decisions concerning assessments are final. (People ex rel. Nordlund v. S.B.A. Co., 34 Ill.2d 373, 215 N.E.2d 233.) Therefore, appellees having alleged that the Board had either exceeded its jurisdiction or had proceeded illegally, and that no mode of direct review was available, the writs of certiorari were the proper proceedings for review of its decisions. Jarman v. Board of Review of Schuyler County, 345 Ill. 248, 255, 178 N.E. 91; People ex rel. Brenza v. Chicago & N.W. Ry. Co., 411 Ill. 85, 103 N.E.2d 85.

In determining whether, in one of the certiorari proceedings, it was error for the trial court to strike from the record a letter which appellants contended established a material fact, we notice that the complaints with the certiorari count had, in addition, a separate count praying for declaratory and equitable relief. This count alleged a separate claim and stated a complete and different cause of action. (See Herman v. Prudence Mutual Casualty Co., 41 Ill.2d 468, 244 N.E.2d 809; compare Boozer v. United Auto Workers of America, AFL-CIO, Local 457, 4 Ill.App.3d 611, 279 N.E.2d 428.) Trial of the issues of fact formed by the pleadings in this count was governed by rules that generaHy determine the admissibility of evidence and the grant of declaratory or equitable relief.

Trial of the certiorari count, however, was governed by different rules. The writs, on their return, brought the relevant records in order that the trial court could determine whether, with regard to the assessments involved, the Board had jurisdiction and had acted in accordance with law. (Sanner v. Union Drainage District, 175 Ill. 575, 582, 51 N.E. 857.) The trial was to consist only of an inspection of the records of the Board’s proceedings. (See Peterson v. Lawrence, 20 Ill.App. 631; Murphy v. Houston, 250 Ill.App. 385.) Questions of fact could not be reviewed or decided. (Low v. Galena & Chicago Union R.R. Co., 18 Ill. 324; I.L.P. Certiorari, § 35.) The record could not be contradicted, it being the rule that, in the absence of statutory authorization, a trial court on the return of the writ of certiorari cannot admit extrinsic evidence either to support or overthrow the proceeding being reviewed. (Frye v. Hunt, 365 Ill. 32, 5 N.E.2d 398; 14 Am. Jur. Certiorari § 51.) With regard to the judgments which the court could enter, there were only two: (1) If from its record it appeared that the Board lacked jurisdiction or that its actions were illegal, the trial court could quash the Board’s proceedings. (2) If it appeared that the Board had jurisdiction and its actions were legal, the certiorari counts had to be dismissed and the writs quashed. People ex rel. Nelson Bros. Storage & Furniture Co. v. Fisher, 373 Ill. 228, 230, 25 N.E.2d 785.

With these principles in mind, we have studied the proceedings below; and it appears that on returns of the writs, the trial court examined the records of the Board. In the hearing on the certiorari count of Mid-Continental’s complaint as to its Lakeview Township real estate, appellants sought to include in its return a transmittal letter dated February 21, 1971, which the other parts of the record show was not before the Board of Appeals when it confirmed the Assessor. An objection was made to the letter, and the trial court granted a motion to strike it from the record.

In our judgment, this ruling was correct. When a court, by a common law writ of certiorari, reviews the proceeding of an inferior tribunal, the record of that tribunal cannot be impeached. A letter which was not before the Board of Appeals when it made the decision under review was not part of the record. (See Commissioners of Highways of The Town of Sonora v. Supervisors of Carthage, 27 Ill. 140, 143; compare McDonald v. Road District No. 3, 292 Ill. 386, 391, 127 N.E. 29.) To have included it, as appellants sought to do, would have been to impeach the record before the Board.

Despite this fact, the letter was admissible in the trial of the count that prayed for declaratory and equitable relief. When that count was heard, appellants neither offered the letter in evidence nor made it the subject of an offer of proof. It is a general rule that “[ejvidence may be admissible for a special purpose, but not admissible generally; or it may be admissible for one purpose but not for another * * *.” (88 C.J.S. Trial, § 82, p. 188; 1 Wigmore Evidence § 13 (3d ed.).) We conclude, therefore, that in the particular certiorari proceeding, the trial court did not err when it struck from the record the letter which appellants claim established a material fact.

It is agreed by the parties that on April 7, 1971, the Goodfriend partners, North Marina City Building and Mid-Continental Realty (as to its Lakeview Township property) received notices from the Board of Appeals that the County Assessor had filed certificates of correction proposing increases in the assessed valuation of their real estate for 1970 taxes. Appellants concede, and the trial court found, that the certificates were to correct the Asssessor’s errors of judgment as to the valuation of the real estate involved. Appellees Goodfriend and partners, North Marina City Building and Mid-Continental Realty contend, as the trial court held, that this use of certificates of correction was not authorized by the Revenue Act. Appellants, based on their construction of the statute, contend that the certificates were authorized by the Revenue Act of 1939. We are therefore required to decide whether the Revenue Act gave the County Assessor of Cook County authority to file with the Board of Appeals certificates of correction based on errors of judgment as to valuation, and thereby propose increases in the assessed valuation of the real estate involved.

The Revenue Act of 1939 provides that “[w]henever the county assessor * * * certifies to the board of appeals that there is a mistake or error other than a mistake or error of judgment as to the valuation of any real or personal property, in any assessment or in the entry of any assessment in the assessment books, setting forth the nature of such mistake or error and the cause thereof, the board of appeals shall give the person or corporation affected by such assessment notice and an opportunity to be heard thereon.” (Ill. Rev. Stat. 1969, ch. 120, par. 603.) Upon the making of such a certification, the appellant Board, after notice to the taxpayer and an opportunity to be heard, has the power to “[o]rder the county assessor to correct any mistake or error (other than mistakes or errors of judgment as to the valuation of any real or personal property) * * (Ill. Rev. Stat. 1969, ch. 120, par. 594(2).) These are the only provisions in the Revenue Act which authorize a county assessor to file and a board to consider a certificate of correction.

Appellants, however, do not agree with this construction of the statute. They argue that in one paragraph of the Act it is provided that “[cjomplaints by taxpayers and certificates of correction by the county assessor in relation to the assessment of real property shall be filed by townships with the board of appeals on or before the dates specified in the notices given pursuant to Section 115.” (Ill. Rev. Stat. 1969, ch. 120, par. 598.) Section 115 governs notice of the meetings which a board of appeals must hold when it sits to revise and correct assessments. (Ill. Rev. Stat. 1969, ch. 120, par. 596.) These provisions, appellants say, are inconsistent with another paragraph of the Act authorizing a board to act “[w]henever the county assessor * * * at any time prior to the time the board of appeals is required to complete its work * * * certifies to die board of appeals that there is a mistake or error * (Ill. Rev. Stat. 1969, ch. 120, par. 603.) Appellants argue that there is an inconsistency between the provisions of par. 596 and those of par. 603, because they establish different times for the filing of a certificate of correction. Appellants insist that these two paragraphs authorize the procedure used by the Assessor when he filed the certificates correcting his errors of judgment regarding the valuations.

We have examined the two paragraphs to which appellants refer and conclude. that they are free of inconsistency. One paragraph (Ill. Rev. Stat. 1969, ch. 120, par. 598) deals with the filing of complaints and certificates of correction and refers to another that governs notices of meetings which a board must hold. The other paragraph (Ill. Rev. Stat. 1969, ch. 120, par. 603) deals with certification by a county assessor to a board that he has made a mistake or error, other than a mistake or error of judgment as to the valuation of any real or personal property. In any event, an inconsistency between the provisions of these paragraphs, if one existed, could not be so construed as to give the Cook County Assessor the right to file a certificate correcting an error of judgment as to valuation and thereby proposing an increase in the assessed valuation of real estate, when there is no provision in the Revenue Act that creates such a procedure. [T]ax laws ought to be given a reasonable construction, without bias or prejudice against either the taxpayer or the State, in order to carry out the intention of the legislature and further the important public interest that such statutes subserve.” (People ex rel. Conner v. Burgess-Norton Mfg. Co., 49 Ill.2d 397, 275 N.E.2d 403; City of Chicago v. Neher, 5 Ill.App.3d 22, 282 N.E.2d 521; State ex rel. County of Hennepin v. Brandt (1948), 225 Minn. 345, 31 N.W.2d 5; 3 Sutherland, Statutory Construction § 6703 ( 3d ed.).) Therefore, we conclude that under the Revenue Act of 1939, the County Assessor of Cook County did not have the authority to file with appellant Board of Appeals certificates of correction, based as they were on errors of judgment as to valuation, and thereby proposed increases in the assessed valuation of real estate. The next issue, then is whether the appellant Board had jurisdiction to hear and rule on the certificates filed by the County Assessor.

Jurisdiction is power, the power to hear and determine a cause. (People ex rel. Raymond v. Talmadge, 194 Ill. 67, 61 N.E. 1049; City of Mattoon v. Stump, 4 Ill.2d 149, 122 N.E.2d 250.) Under the Revenue Act, appellant Board of Appeals had the power only to hear and “* * * correct any mistake or error (other than mistakes or errors of judgment as to the valuation of any real or personal property) * * *.” (Ill. Rev. Stat. 1969, ch. 120, pars. 594, 603.) The three certificates which the Assessor filed were, as the trial court found, to correct his errors of judgment as to the valuation of the real estate involved.

Within the scope of its administrative powers, appellant Board is an inferior tribunal. (Parker v. Kirkland, 298 Ill.App. 340, 18 N.E.2d 709.) It has only the jurisdiction given it by statute. (People ex rel. Carr v. Keogh, 306 Ill. 323, 325, 137 N.E.2d 816.) It cannot make an assessment; it can only review assessments made by the County Assessor. (Jarman v. Board of Review, 345 Ill. 248, 178 N.E. 91.) It did not have the authority to consider increases in assessments which a county assessor, by a certificate of correction, proposes in order to correct his errors of judgment as to the valuation of property. Consequently, the Board of Appeals did not have jurisdiction to hear and rule on the three certificates by which, to correct errors of judgment as to valuation, the County Assessor of Cook County proposed increases in the assessed valuation of real estate owned by the Goodfriend partners, North Marina City Building Corporation and Mid-Continental Realty Corporation (the parcels in Lalceview Township).

Mid-Continental Realty, as to its seven parcels in North Township; Harris Trust and Savings Bank, as to the Brunswick Building in South Chicago Township; and LaSalle National Bank, as to its two parcels also in North Township, were treated differently by the County Assessor than were the taxpayers affected by the certificates of correction. Without an opportunity to be heard by him, the County Assessor, when he completed his work on February 18 and 19, 1971, increased the assessed valuation of Mid-Continental’s seven parcels from $6,120,153 to $9,122,415; Harris Trust’s from $4,970,653 to $8,372,153 and LaSalle National’s from $2,826,014 to $4,560,946. As soon as these increases came to their attention, the three taxpayers filed complaints before appellant Board of Appeals attacking the jurisdiction of the Board to confirm the Assessor’s increases. They contended that the Assessor could not increase the assessed valuation of their real estate without previous notice to them and without giving them an opportunity to be heard by him. The three taxpayers did not introduce any evidence relative to the accuracy of the assessed valuations, but insisted that the increased assessments were illegal and void because they violated the provisions of the Revenue Act of 1939.

In this court, appellants contend that in filing complaints which only attacked the Board's jurisdiction to confirm the Assessor, and by failing to introduce evidence to support their contention that the increased assessments were unreasonable, Mid-Continental, Harris Trust and LaSalle National waived their right to object to the Assessor’s failure to give them a hearing before he increased the assessed valuations of their property for 1970 taxes. Appellants maintain that subsequent to filing their complaints the three taxpayers had a hearing before the appellant Board, which cured any defect in the assessment procedure.

Appellees reply that their complaints were necessary and indeed, were the only way they could raise the essential jurisdictional and legal questions concerning the conduct of the Assessor increasing the assessed valuation of their real estate for 1970 taxes. Therefore, we must determine whether previous notice to a taxpayer and an opportunity to be heard by a county assessor are jurisdictional prerequisites to an increase in assessments by a county assessor in a nonquadrennial year, and whether, by filing complaints which only questioned the jurisdiction of appellant Board of Appeals, Mid-Continental Realty, Harris Trust and LaSalle National Bank waived their objection that the County Assessor of Cook County did not give them an opportunity to be heard before the assessed valuations of their real estate were increased.

We begin with the premise that when these assessments were increased, it was a constitutional guaranty in this State “* * * that every person * * * shall pay a tax in proportion to the value of his, her or its property—such value to be ascertained by some person or persons, to be elected or appointed in such manner as the general assembly shall direct, and not otherwise * ." (Ill. Const. 1870, art. IX, sec.

1.) Accordingly, it has been provided that in Cook County there shall be an assessor, who, aided by clerical help and deputies, shall assess property in the county for tax pmposes. (Ill. Rev. Stat. 1969, ch. 120, par. 487.) The assessment of property for taxation must be made by the county assessor or his deputy. (People ex rel. Cutmore v. Harding, 333 Ill. 384, 164 N.E. 827; People ex rel. Smith v. Coen, 415 Ill. 73,112 N.E.2d 119.) In fact, by statute the assessor takes an oath that this will be done. (Ill. Rev. Stat. 1969, ch. 120, par. 488.) He, exclusively, is vested with power to make assessments. (See Bistor v. McDonough, 348 Ill. 624, 181 N.E. 417; compare People ex rel. Town of Cicero v. Sweitzer, 339 Ill. 28, 170 N.E. 728.) This power imposes on the assessor the duty that is correlative to a right which inheres in every person in the county: the right to be informed of the value placed on his property by the County Assessor in order that he who is aggrieved may appeal to the Board. See Lindheimer v. Nelson, 369 Ill. 312, 16 N.E.2d 734.

The Revenue Act 1939 provides that quadrennially, that is to say that every four years, there shall be an assessment year for eveiy township or taxing district in every county of the State for the purpose of taxation. (Ill. Rev. Stat. 1969, ch. 120, par. 524.) The quadrennial assessment as modified, equalized or changed establishes the assessment on which taxes are levied during the remainder of the quadrennial period. (People ex rel. Town of Cicero v. Sweitzer, 339 Ill. 28, 36, 170 N.E. 728.) The year 1970, the tax year with which we are concerned in these appeals, was not the quadrennial assessment year in the townships where appellees’ parcels of real estate were located. Therefore, revision of the assessed valuation of their real estate was governed by the limitation that' no assessment could be increased “* * * without previous notice to the owner and an opportunity to be heard.” (Ill. Rev. Stat. 1969, ch. 120, pars. 578, 579.) These provisions of the Revenue Act have never been construed by a court of this State. Nonetheless, there are analogous constructions by courts in other jurisdictions.

For example, in Amerada Petroleum Corp. v. Hester (1940), 188 Okla. 394, 395, 109 P.2d 820, the Supreme Court of Oklahoma said that “[a]n ‘opportunity to be heard’ * * * is synonymous with ‘hearing.’ ‘Hearing,’ as used, ‘contemplates a listening to facts and evidence for the sake of adjudication.’” In State v. Orris (1971), 26 OhioApp.2d 87, 89, 269 N.E.2d 623, it was held that “[h] earing suggests to ‘give audience to,’ a meaning which attaches when in the law a court holds a ‘hearing’.” In People v. Ivenditti (1969), 276 Cal.App.2d 178, 180, 80 Cal.Rptr. 761, the court of appeals of California had occasion to say that “[a] ‘hearing’ is generally understood to be a proceeding where evidence is taken to the end of determining an issue of fact and a decision made on the basis of that evidence.” Compare Thede v. Thornburg (1929), 207 Iowa 639, 223 N.W. 386. Therefore, we hold that when the legislature enacted that in a nonquadrennial year the County Assessor of Cook County shall not increase an assessment “* * * without previous notice to the owner and an opportunity to be heard,” it imposed a duty on the County Assessor, before he increases a property assessment for taxation, to give the taxpayer a notice and hearing within the common meaning of those terms. Notice to the property owner and an opportunity to be heard are jurisdictional; they must precede any change or reassessment. (Lindheimer v. Nelson, 369 Ill. 312 316, 16 N.E.2d 734.) An assessment without notice and hearing is invalid. People ex rel. Edgar v. National Box Co., 248 Ill. 141, 93 N.E. 778.

In support of their contention that Mid-Continental Realty, Harris Trust and La Salle National, by filing complaints with appellant Board, waived their objection that the County Assessor did not give them a hearing, appellants rely on Dietman v. Hunter, 5 Ill.2d 486, 126 N.E.2d 22 and Little Sister Coal Corp. v. Dawson, 45 Ill.2d 342, 259 N.E.2d 35. We have examined these cases and observe that, in both, the statute which governed changes in assessments for taxation did not give the taxpayer the right to previous notice and an opportunity to be heard before the assessed valuation of his property could be increased. Therefore, Dietman and Little Sister Coal cases are not in point.

In the cases before us, Mid-Continental Realty, Harris Trust and LaSalle National had the right to previous notice from appeHant County Assessor and an opportunity to be heard by him on the justness of any increase in the assessed valuation of their real estate for 1970 taxes. (Ill. Rev. Stat. 1969, ch. 120, par. 578.) The notice and hearing were jurisdictional. (People ex rel. Rea v. Nokomis Coal Co., 308 Ill. 45, 50, 139 N.E. 41.) Appellate Board of Appeals could not confirm the increases in assessments in the presence of this jurisdictional defect. Under these circumstances, the complaints which Mid-Continental, Harris Trust and LaSaUe National filed were necessary; they did not waive any right under the Revenue Act. Therefore, by filing the complaints which only questioned the jurisdiction of appellant Board of Appeals, Mid-Continental, Harris Trust and LaSaHe National did not waive their objection that the County Assessor had not given them notice and an opportunity to be heard before the assessed valuation of their real estate was increased in a nonquadrennial year.

IV.

For these reasons, we conclude that the trial court did not err when, in the four cases in which it had issued writs of certiorari, it quashed the proceedings before the appellant Board of Appeals; and when by its permanent injunction, it enjoined appeHants from coHecting the 1970 real estate taxes based on the increased assessments. The judgments are affirmed.

Affirmed.

STAMOS, P. J., and HAYES, J., concur.


source: Caselaw Access Project

author: Opinion by Mr. JUSTICE DOWNING.

license: Public Domain

text:
    Stevo Nikolic, Plaintiff-Appellant, v. The City of Chicago, DefendantAppellee.
    (No. 57126;
    First District (2nd Division)
    November 13, 1973.
    Paulson & Ketchum, of Chicago, (Milton Pfetzer, of counsel,) for appellant.
    Richard L. Curry, Corporation Counsel, of Chicago (William R. Quinlan and Harvey N. Levin, Assistant Corporation Counsel, of counsel), for appellee.
   Opinion by Mr. JUSTICE DOWNING.


text:
    Steven Sher, Plaintiff-Appellant, v. Hospital Service Corporation et al., Defendants-Appellees.
    (No. 57446;
    First District (2nd Division)
    November 13, 1973.
    Rabens, Formusa & Glassman, of Chicago (George C. Rabens, of counsel), for appellant.
    Gorham, Adams, White & DeYoung, of Chicago (John F. Arnold, of counsel), for appellees.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

The only issue in this appeal is whether the trial court erred in striking plaintiff’s amended complaint and dismissing his suit for declaratory judgment. Resolution of this issue requires us to decide whether the allegations of the complaint stated a cause of action.

I.

Plaintiff Steven Sher is a resident of Chicago, Illinois. Defendants Hospital Service Corporation and Illinois Medical Sendee are corporations organized under Illinois law. Hospital Service provides what is known as the Blue Cross plan for hospital care. Illinois Medical provides what is known as the Blue Shield plan for medical expense indemnity. On or about April 1, 1969, each corporation issued a certificate to the plaintiff, In one, Hospital Service agreed to provide him with its Blue Cross hospital benefits; in the other Illinois Medical agreed to provide him with its Blue Shield medical expense indemnity. Each certificate contained two provisions: (1) A clause which provided that it could be cancelled by either party at any time after 30 days written notice. (2) A clause which provided for conversion of the certificate when plaintiff became 65 years of age.

On February 10, 1970, Hospital Service and Illinois Medical notified the plaintiff that, retroactive to April 1, 1969, the date of issue, the certificates were cancelled. At the same time, all premiums which he had paid were returned to him. Despite the notices, on about May 25,. 1970, plaintiff tendered, and defendants accepted, the premiums due on the certificates for the period from June 1, 1970 to August 1, 1970. On June 17, 1970, plaintiff was admitted to the Michael Reese Hospital in Chicago where he remained until July 31, 1970. He was again admitted to Michael Reese on August 8, 1970 for medical treatment and there remained until September 7, 1970.

Defendants contend that the notices of cancellation they gave plaintiff on February 10, 1970, were retroactive to April 1, 1969, because they returned all the premiums he had paid. Plaintiff contends that because he paid and defendants accepted premiums to August 1, 1970, the certificates were in force when he became hospitalized on June 17, 1970. Moreover, he contends that the notices of cancellation were of no effect because (a) back-dating them contravened the notice provisions of the certificates; (b) defendants’ acceptance of premiums on May 25, 1970 (paying the certificates to August 1, 1970) estopped them from asserting any claim of cancellation; (c) the cancellation provisions of both certificates were in conflict with the provisions giving plaintiff the right to convert the certificates at the age of 65, thus creating a conflict that created an ambiguity in the coverage with respect to his rights and privileges: if the cancellation provisions were effective and enforceable, they would constitute a fraud on plaintiff, who had relied on conversion provisions that suddenly became meaningless.

Plaintiff prayed for a judgment declaring that (a) defendants’ notices cancelling the two certificates were null and void; (b) the clauses that gave the right to cancel and those that gave the right to conversion at age 65 were in conflict, ambiguous, and should be construed favorably to the plaintiff; (c) enforcement of the canceUation provisions so that they prevail over the conversion provisions would constitute a fraud on the plaintiff; (d) defendants are estopped from cancelling the certificates and the coverages provided by them; (e) plaintiff is entitled to such other and further relief as to the court may appear just and appropriate, including recovery for hospital and medical expenses incurred by him from and after June 17, 1970.

II.

Defendants moved to dismiss the amended complaint on the ground that the certificates could be canceUed by either party on 30 days written notice. The cancellations, they asserted, were effected consistent with the terms of the certificates. After a hearing and the filing of briefs, the trial court ruled that although defendants attempted to cancel the certificates retroactive to April 1, 1969, the notices dated February 10, 1970 were effective 30 days thereafter, on March 10, 1970; that plaintiff’s hospitalization occurred after the effective date of the cancellations; that acceptance of premiums by defendants on May 25, 1970 did not estop them from asserting their notices of cancellation; that the cancellation provisions of the certificates were not in conflict with the right of conversion at age 65; that there was no ambiguity in the coverage afforded by the certificates with respect to any of plaintiff’s rights or privileges; and that the provisions of the certificates did not constitute a fraud on the certificate holder. After making oral findings and reaching the conclusion that it did not state a cause of action, the court entered an order dismissing plaintiff’s amended complaint, with prejudice.

In this appeal, it is plaintiff’s contention that the cancellation and conversion provisions of the two certificates were mutually repugnant; therefore, the provisions for cancellation were void as. against the provisions which gave him the right to convert the certificates on his attaining the age of 65. Plaintiff argues that as a result, he is entitled to a construction of the certificates which would give him hospitalization and medical indemnity coverage until he reaches 65 years of age and the certificates can be converted.

III.

The certificates were contracts for hospitalization and medical services which by law had to be approved by the Illinois Director of Insurance. (Ill. Rev. Stat. 1967, ch. 32, pars. 562a, 570(5), 571.) In the absence of an allegation to the contrary, we will assume that the Director approved the certificates in the proper discharge of his official duties. Sharp v. Hospital Service Corp., 55 Ill.App.2d 379, 382, 204 N.E.2d 607.

As in the case of contracts generally, the certificates should be read to determine the intent of the parties in order that the agreement can be given effect. (See Scott v. Inter-Insurance Exchange of Chicago Motor Club, 352 Ill. 572, 186 N.E. 176; Nationwide Insurance Co. v. Ervin, 87 Ill.App.2d 432, 231 N.E.2d 112; Couch on Insurance 2d §§ 15:7, 15:9.) Accordingly, we have read the certificates and conclude that plaintiff and defendants intended to give either party the right to cancel the certificates on 30 days written notice, for any reason. They further intended that if the certificates were in force when plaintiff reached the age of 65 (that is, if they had not been cancelled in the meantime) the certificates could be converted into one then being offered by defendants to persons in the group to which plaintiff belonged. The power to cancel was valid. (See Brown v. Federal Life Insurance Co., 353 Ill. 541, 187 N.E. 484.) When read with the conversion provisions, it did not make either clause ambiguous. We cannot, by distortion of language or the exercise of inventive powers, create an ambiguity where none exists. (Wallace v. Blue Cross Hospital Service, Inc., 13 Ill.App.3d 803, 300 N.E.2d 531; Bartulis v. Metropolitan Life Insurance Co., 72 Ill.App.2d 267, 218 N.E.2d 225.) Nor can we construe the certificates as noncancellable. Courts, in construing contracts, must enforce the agreement the parties make, not make a better or different one for them. (Murray v. Kaskaskia Live Stock Insurance Co., 204 Ill.App. 568; Boyle v. Inter-Insurance Exchange of Chicago Motor Club, 335 Ill.App. 386, 82 N.E.2d 179; Couch on Insurance 2d § 15:37.) Therefore, it is our judgment that the cancellation and conversion provisions of the two certificates were not mutually repugnant, and that the cancellation provisions need not give way to those which gave plaintiff the right to convert the certificates on his attaining the age of 65. Plaintiff’s amended complaint for declaratory judgment did not state a cause of action. Consequently, dismissal was not error. The order is affirmed.

Affirmed.

STAMOS, P. J., and HAYES, J., concur.


author: Mr. PRESIDING JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Orlando Ortiz, Defendant-Appellant.
    (No. 57829;
    First District (2nd Division)
    November 13, 1973.

      James J. Doherty, Deputy Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. PRESIDING JUSTICE STAMOS

delivered the opinion of the court:

Defendant was charged with the unlawful use of weapons and failure to comply with state and city gun registration laws. After a bench trial he was found guilty of unlawful use of weapons, and sentenced to one year probation with the first 90 days to be served in the House of Correction. On appeal defendant seeks a reversal of his conviction or a reversal and remandment for a new trial. He contends that (1) the trial court erred in failing to sustain defendant’s motion to suppress the evidence; to wit, the gun; and (2) proof of defendant’s guilt was not established beyond a reasonable doubt.

A Chicago police officer testified at the hearing on the motion to suppress that on September 23, 1971, at approximately 10:00 P.M., he observed defendant and a companion walking down the street. His attention was drawn to defendant because he knew defendant’s companion as a prior offender, and has “processed him on prior occasions.” The officer and his partner then curbed their squad car and motioned defendant and his companion to approach the car. As they approached, the wind caused defendant’s jacket to open and the officer noticed the butt of a gun protruding from defendant’s belt. The officer then placed defendant under arrest. After this testimony the court denied defendant’s motion to suppress.

In addition to the above testimony which was introduced into the record at trial, the officer testified that the gun found on defendant was inventoried and was a .25 caliber pistol. The officer conducted a “pat down” search of defendant after the arrest and did not find a state or city registration card for the gun. On redirect examination, he stated that he looked in defendant’s wallet and did not see a registration card; on recrossexamination he testified: “I don’t remember if he had a wallet. We normaUy have all things removed.”

The trial court found defendant not guilty of violation of the gun registration charges.

Defendant argues that the action of the police officer in calling him to the car was an unreasonable stop, and resulted in an infringement of his constitutional right to freedom and privacy. Defendant concludes, therefore, that the observation of the gun was the result of an illegal stop, and that his motion to suppress should have been granted.

In support of this argument, defendant relies on Ill. Rev. Stat. 1971, ch. 38, par. 107—14 which provides in pertinent part:

“A peace officer, after having identified himself as a peace officer, may stop any person in a public place for a reasonable period of time when the officer reasonably infers from the circumstances that the person is committing, is about to commit or has committed an offense * *

Defendant’s reliance upon the above statute is misplaced. Our courts have held that the essence of a “stop” (or a “seizure,” in the language of the Supreme Court in Terry v. Ohio, 392 U.S. 1, 20 L.Ed.2d 889, 38 S.Ct. 1868) is an element of force or threatened force which constitutes a restraint on the freedom to walk away. The mere calling to defendant to approach the police car did not amount to a “stop.” (People v. Hines, 12 Ill.App.3d 582, 299 N.E.2d 581; People v. Howlett, 1 Ill.App.3d 906, 274 N.E.2d 885.) When the wind blew defendant’s jacket open and the officer observed the gun, there arose probable cause to arrest defendant. For these reasons we conclude that the trial court’s denial of the motion to suppress was proper.

Defendant’s final contention is that the officer’s testimony, the only testimony presented, was palpably unpersuasive, improbable and contradictory, and defendant, therefore, was not proven guilty beyond a reasonable doubt. Defendant bases his contention upon three facts: (1) the officer described the gun as a .25 caliber weapon at trial, whereas the complaint described it as a 6.35 caliber pistol; (2) the gun was not introduced into evidence; and (3) the trial court found defendant not guilty of the registration charges.

The record does not support defendant’s argument. The gun was described as a .25 caliber weapon by the officer at trial after it had been inventoried and identified. The variance between the complaint and the evidence does not impair the credibility of the officer’s testimony. The failure of the prosecution to introduce the weapon at trial did not impair the officer’s credibility or raise a reasonable doubt of defendant’s guilt. (People v. Herrera, 6 Ill.App.3d 898, 287 N.E.2d 87.) Defendant relies upon People v. Burlinski, 8 Ill.App.3d 800, 291 N.E.2d 339, to support his argument that the officer’s testimony, found to be unreliable by the trial court as to the search of defendant for gun registration cards, raised a reasonable doubt concerning his entire testimony. In Burlinski, the court reversed a conviction for aggravated battery on the grounds that the police officers’ testimony regarding the sale and possession of narcotics by defendant and the apprehension of defendant was so unreliable as to raise a reasonable doubt as to the aggravated battery conviction. However, the evidence in the instant case does not approach the magnitude and scope of the contradicting and impeaching testimony which pervaded the record in Burlinski. Here, the officer’s testimony of the facts leading to defendant’s arrest was clear and uncontraverted. From our review of the record we are convinced that defendant was proven guilty beyond a reasonable doubt of the unlawful use of weapons charge.

Defendant has filed a motion before this court for reduction of sentence pursuant to the Unified Code of Corrections, effective January 1, 1973. (Ill. Rev. Stat., 1972 Supp., ch. 38, pars. 1001—1—1 et seq.) Defendant was sentenced to one year probation with the first 90 days to be served in the House of Correction—a so-called “split-sentence.” Section 1005—6—3 of the Code of Corrections provides in pertinent part:

“(d) The court shall not require as a condition of the sentence of probation or conditional discharge that the offender be committed to a period of imprisonment except under Article 7.”

In answer to defendant’s motion, the State has filed a motion alleging that (1) a bill was subsequently passed by the legislature which permitted, inter alia, split-sentencing, and, although the bill was vetoed, the governor did not object to the split-sentencing provision, and the bill is now back in the legislature; and (2) Section 1005—6—3(d) violates the separation of powers mandate of the United States Constitution and Article I, Section 10 of the Illinois Constitution of 1970 which sets forth the objectives of penalties.

Initially, we note that the bill permitting split-sentencing has not become the law of Illinois, and we cannot consider the “intent” of the legislature in passing such a bill. As of this date, Section 1005—6—3(d) is the law of Illinois to which we must adhere.

Secondly, we do not agree with the State that the prohibition against split-sentencing is a usurpation of judicial power. We agree that the power to impose a sentence as a punishment for crime is purely judicial. (People v. Montana, 380 Ill. 596, 44 N.E.2d 569.) However, the legislature has the power to determine the nature, character and extent of punishment in light of the public interest. (People v. Smith, 14 Ill.2d 95, 150 N.E.2d 815.) The prohibition of split-sentences indicates the legislature’s redefinition of the nature and character of probation. The determination of whether defendants shall be admitted to probation, as well as the period of probation and the conditions of probation, within the limits set forth in the statute, remain in the discretion of the trial court.

We have studied cases which have held statutory provisions to be unconstitutional infringements upon judicial powers. However, we have found these authorities to be inapposite as they concern the power to provide rules governing appeals which power the Illinois Constitution has delegated to the Supreme Court. (People ex rel. Stamos v. Jones, 40 Ill.2d 62, 237 N.E.2d 495; People v. Taylor, 50 Ill.2d 136, 277 N.E.2d 878.)

For these reasons we conclude that section 1005—6—3(d) does not violate the Illinois Constitution. In light of the public policy expressed in the Code of Corrections, and to conform to the provisions of the Code, we hereby modify the order of probation by eliminating the condition of imprisonment in the House of Correction. We affirm the judgment as modified.

Judgment affirmed as modified.

LEIGHTON and HAYES, JJ., concur.

       Ill. Rev. Stat. 1971, ch. 38, par. 24—1(a)(4).

       Ill Rev. Stat., 1972 Supp., ch. 38, par. 1005—7—1:
      “(a) A sentence of periodic imprisonment is a sentence of imprisonment to be served on certain days or during certain periods of days, or both, specified by the court as part of the sentence.”

      Ill. Rev. Stat. 1971, ch. 110A, par. 615(b).

       We do not consider this modification to be a proscribed change from an order of incarceration to probation; rather we are modifying the order of probation.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Poindexter, Defendant-Appellant.
    (No. 58013;
    First District (1st Division)
    November 13, 1973.
    Richard A. Siebel, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant was, after a bench trial, found guilty of the theft of an electric typewriter alleged to have been owned by the Republic Packaging Corporation, of the value of $100, and was sentenced to nine months in the Cook County Jail.

On appeal, he contends inter alia, that the ownership of said typewriter was not established by competent evidence. We agree and reverse and remand, without reaching the other grounds urged by him.

At approximately 3:30 A.M., March 12, 1970, Officer James Gorman drove to the Republic Packaging Company building in response to a Wells Fargo burglar alarm received at police headquarters. Upon arriving, he noticed the defendant Poindexter and another named Echéis emerging from the shrubbery alongside the building. Officer Gorman detained the men and radioed for assistance. While waiting for them to arrive, the two men explained that they were drinking wine in the shrubbery. When assistance arrived., Officer Gorman turned the men oyer to the assisting officers and then proceeded to check the building for a possible burglary. His search revealed a broken window. Inside the building and just below the window, he found numerous pieces of office equipment including calculators, typewriters, and adding machines. Outside and just across the street from the building he noticed an unattended parked white Cadillac with its engine running and the keys in the ignition. The car had several bullet holes in its windows. There was no identification inside the car and he was unable at that time to determine the car’s owner. He proceeded to remove the keys from the ignition and to use them to open and unlock the trunk. There he found an IBM typewriter. He placed the two men under arrest and advised them of their rights. Both men were charged with the theft of said typewriter.

Prior to trial, a motion to suppress was made. In addition to the facts above summarized, Lillian Porter, grandmother of Echéis, identified the white Cadillac as hers and testified that her husband had given the two defendants permission to use it the night of the incident in question. The court denied the motion and both defendants pleaded not guilty and demanded a jury trial.

When the case was subsequently called for trial, both parties waived jury trial. The judge carefully explained to each defendant his right to have 12 citizens decide his guilt or innocence but the defendant Echéis, through his attorney, and the defendant Poindexter, himself expressly asked that the court hear the case, after which the trial was delayed while the Public Defender talked further to his clients.

At the trial, John Carmody testified that he was Manager of Design and Development for the Republic Packaging Corporation; that, after the incident in question, he went to its office, where he saw:Sgt. Gorman and a man from Wells Fargo; that he found five or six typewriters, two or three adding machines and two or three calculators stacked under the broken window; that he then went to the police station where he observed People’s Exhibit No. 1 for identification, being an IBM electric typewriter; and that he personally checked the serial number of that typewriter against a bill of sale for that typewriter and found that the numbers on said typewriter matched those on the bill of sale. The defendant’s counsel objected on the ground that the bill of sale itself should be produced and that the witness’ statement concerning the matching of the numbers was but a conclusion. The objection was overruled and the typewriter was admitted into evidence.

After Sgt. Gorman had testified as above summarized, the defendant Poindexter took the stand and testified that he was waiting for a bus at about 3:30 on the morning when Echéis picked him up in a white Cadillac; that he was only a passenger and did not drive; that he and Echéis were drinking wine alongside the building when they saw an officer coming and threw the bottles down; that he did not go inside the building, did not take anything outside the building or help anyone else do so and that he did not put the typewriter in the rear trunk of the car; and that, when questioned he denied so doing.

The court found both men guilty and Poindexter, who had three prior convictions of theft and one attempted burglary, was sentenced to nine months in jail. Motions for a new trial and in arrest of judgment were denied and Poindexter appealed.

We shall limit our consideration to the question of whether or not the ownership of the IBM electric typewriter was proved by competent evidence.

In IV. Wigmore on Evidence, Chadboum Revision, in the introduction to § 1177, at 406 (1972), it is said:

“The first to be considered of the rules of auxiliary probative policy is the rule requiring that a writing be produced in its original text, instead of evidencing it by somebody’s testimony to. its contents. * * *”

In 20 Am. Jur. Evidence, §§ 403, 406, 407, at 364, 366—7, 407, it is said, in pertinent parts:

“§ 403. Generally.—It is an elementary principle of the law of evidence that the best evidence of which the case in its nature is . susceptible and which is within the power of the party to produce, or is capable of being produced, must always be adduced in proof of every disputed fact. Secondary evidence is never admissible unless it is made manifest that the primary evidence is unavailable, as where it is shown that it has been lost or destroyed, is beyond the jurisdiction of the court, or is in the hands of the opposite party who, on due notice, fails to produce it.
§ 406. Of Matters Incorporated or Recorded in Writings.— Where proof is to be made of some fact which is recorded in a writing, the best evidence of the contents of the writing consists in the actual production of the document itself. Any proof of a lower degree is secondary evidence which will be received as proof only where nonproduction of the writing is properly accounted for. The contents of a written instrument may not, as a general rule, be proved by parol, unless the failure to produce the paper itself is accounted for. The principle is controlling in every case wherein it is sought to prove the contents of written instruments of any kind whatsoever.
§ 407. Private Writings.—The principle requiring the production of an instrument to prove its contents is not restricted to public documents and writings; it applies with equal force where the instrument to be proved is of a private character. Where the contents of such a writing are in issue, the instrument itself is the best evidence thereof, and the writing must be produced or its absence must be legally accounted for and excused. * *

In 32A C.J.S. Evidence, §§ 777, 799, at 93,131, it is said:

“The rule of evidence commonly known as ‘the best evidence rule’ is that the highest degree of proof of which the case from its nature is suspectible must, if accessible, be produced; or, in other words, that no evidence shall be received which presupposes that the party who offers it can obtain better evidence.
Where the title to personal property is in issue, and it appears that the title is evidenced by a bill of sale or other similar written instrument, it is generally held that the writing is the best evidence, and parol evidence is not admissible unless the instrument is lost or its absence is otherwise satisfactorily explained. There is, however, authority to the effect that title to personalty can be shown by parol, even though there is a writing, not produced, evidencing the same fact, at least where the title is not a matter of record, or where the witness bases his statement on his own knowledge, and the written evidence consists merely of entries made by him from such knowledge.”

This is good Illinois law.

In Rawson v. Curtiss (1858), 19 Ill. 456, a witness testified that he saw a “letter of credit” and testified as to the substance of its contents, although the letter itself was never produced nor the failure to do so explained. The trial court excluded the testimony as to the contents of the letter but refused to exclude that part of his testimony which described it as a ‘letter of credit.” In reversing, our Supreme Court, at page 473, said:

“The court permitted the witness to give this character to a paper which was not produced, and its non-production unaccounted for, violating that familiar rule of evidence that the contents of a writing can not be shown by parol, unless notice to produce it has been given and disregarded, or that it is lost or destroyed.”

In Sullivan v. People (1903), 108 Ill.App. 328, the defendant was charged with conspiracy to bribe jurors and there was testimony as to the contents of a letter allegedly written by the defendant to a Mrs. McGuirk, who was not charged. The letter itself was not produced nor was the failure to do so explained. In reversing, the court, at pages 340-341, said:

“* * * in Anderson v. Irwin, 101 Ill. 411, 414, the court say: ‘Thus it is a familial rule that no evidence will be received of a fact which, from its very nature, shows there is better evidence of such fact, without first satisfactorily accounting for the absence of the higher order of evidence; or, more briefly, the law requires in proof of a fact the best attainable evidence.’
Such being the rule in civil cases, no reason is perceived why it should be relaxed in a criminal case in which the defendant’s liberty is involved.”

In the case at bar, the only testimony as to the ownership of the typewriter, which the police removed from the white Cadillac, was that of the Manager of Design and Development for the Republic Packaging Corporation, who testified that the serial numbers on said typewriter matched those on a bill of sale he had seen at its office. This was objected to as being a mere conclusion of the witness and as not being the best evidence but the trial court overruled the objection and the typewriter was admitted into evidence.

The original of the bill of sale was never produced nor was the failure to produce it explained. And this sole witness apparently had no independent knowledge of the ownership or prior possession or use of the typewriter. The ownership of the typewriter could easily have been proved, without reference to the bill of sale, by the testimony of a secretary who had used it, or by an inventory showing it to have been on hand before the incident here involved, etc., but the prosecution took no such care in putting it in its case.

As is said, in 20 Am. Jur. Evidence, § 237, at 233:

“§ 237.—Personal Property.—As a general rule, proof of the possession of personal property is prima facie evidence of title or is said to raise a presumption of ownership, which may be rebutted or overcome by evidence of ownership in another # #

In Barnes v. People (1856), 18 Ill. 52, our Supreme Court, at page 53, said:

“The same general evidence of property is admissible and as sufficient in criminal as in civil cases. Possession, with general acts of ownership over the horse, such as riding to the hotel, and putting up as a guest, are sufficient to warrant the verdict, where there is no evidence offered to rebut or contradict the right of property. *

We therefore hold that the ownership of the typewriter was not proved by competent evidence and reverse and remand for a new trial.

The other grounds urged upon us for reversal are predicated upon testimony, trial tactics and rulings which may not recur on a retrial and we therefore do not pass upon them.

Judgment reversed and cause remanded for a new trial.

BURKE, P. J., and EGAN, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank L. Rakas, Defendant-Appellant.
    (No. 73-240;
    Fifth District
    March 26, 1974.
    CARTER, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    Michael J. Henshaw, State’s Attorney, of Harrisburg, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bobby Joe Alexander, Defendant-Appellant.
    (No. 73-239;
    Fifth District
    April 2, 1974.
    CARTER, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    Michael J. Henshaw, State’s Attorney, of Harrisburg, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Dunning, Defendant-Appellant.
    (No. 73-253;
    Fifth District
    April 2, 1974.
    CARTER, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    Robert Howerton, State’s Attorney, of Marion, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charlie King Young, Jr., Defendant-Appellant.
    (No. 73-273;
    Fifth District
    April 2, 1974.
    CARTER, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville, for the People.
   PER CURIAM.


text:
    The People ex rel. Michael Urban, Petitioner-Appellant, v. Elza Brantley, Warden, Illinois State Penitentiary at Menard, Respondent-Appellee.
    (No. 73-321;
    Fifth District
    April 2, 1974.
    CARTER, J., took no part.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon, (Timothy F. Flynn, Assistant Appellate Defender, of counsel), for appellant.
    Robert H. Rice, States Attorney, of Belleville, for the People.
   PER CURIAM.


author: Mr. JUSTICE EBERSPACHER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Humble, Defendant-Appellant.
    (No. 71-256;
    Fifth District
    April 2, 1974.
    Robert E. Farrell, Deputy Defender, of Mt. Vernon (Richard E. Cunningham, Assistant Appellate Defender, and Daniel Tobin, Senior Law Student, of counsel), for appellant.
    Nicholas G. Byron, State’s Attorney, of Edwardsville (P. J. O’Neill, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

The defendant, James Humble, was charged by indictment in Madison County with the crime of murder. Trial was held to a jury and the jury returned a verdict of guilty to the lesser included offense of voluntary manslaughter. The defendant’s post-trial motions and application for probation were denied. The court then sentenced the defendant to serve a term of not less than 2 nor more than 8 years in the Illinois State penitentiary system. The defendant has brought this appeal asserting that the State failed to prove the defendant guilty beyond a reasonable doubt and that the court erred in the instructions to the jury.

On the evening of March 21, 1971, the events which led to the defendant’s conviction and this appeal unfolded. The defendant along with Thad Harrell, “Trigger” Terrell and Alvin Thompson, the victim, left the Madison Garrett Pool Room, also known as Venice Pool Hall, in Venice, Illinois. The defendant told Thompson that Thompson had forgotten his coat whereupon the defendant returned to the pool room and brought back a coat for Thompson. Thompson, Terrell and the defendant then left to go to a liquor store.

Later the defendant returned to the pool room and gave the coat to the manager of the pool room. The true owner of the coat, Carl Waters, attacked and beat the defendant. The defendant attempted to get Thompson to explain to Waters what happened with the coat but Thompson refused. The testimony of the witnesses differed as to whether or not Thompson also participated in the defendant’s beating.

Subsequent to the beating the defendant left the pool room. Again there is a variance in the testimony as to the length of time the defendant was gone from the pool room but testimony other than the defendant’s did indicate a minimum of 5 minutes; Harrell testified that the defendant was gone for 20 minutes; Waters testified 7 or 8 minutes and Terrell testified 5 to 10 minutes. The defendant in testifying in his own behalf said that he staggered outside the pool room, saw more men outside whom he testified he thought were going to attack him again, so he picked up a pipe and ran back into the pool room.

Testimony was that upon returning to the pool room the defendant struck the deceased with whatever he had in his hand. The defendant admitted that the object was a pipe. The deceased expired. There was testimony to show that prior to the deceased being struck that the deceased had held up a pool stick. One witness, Mr. Terrell, testified that the deceased did not raise the pool stick until after he was hit by the defendant and that after the pool stick was raised the defendant struck the deceased twice more whereupon the deceased collapsed and never again regained consciousness. There was no testimony other than the defendant’s that the deceased ever struck the defendant either during the first altercation or the second when the defendant returned into the pool room.

The Madison County Coroner, Robert Thomas, testified that he examined the body of the deceased and the only mark found on the deceased was a slight abrasion over the nose.

The final State witness was Dr. Francisco Campos, a pathologist 22 years. He testified that on March 22, 1971, he had performed an autopsy on the deceased. The witness first made an external examination of the body. He found that there was an abrasion with a small amount of skin discoloration over the right side of the nose and that the right wrist was swollen and possibly fractured.

The internal examination by the witness revealed that the deceased had a persistent thymus. He explained that this is an organ which should shrink up and go away after puberty but that the deceased’s thymus was five times the normal size. The doctor diagnosed the cause of death as status thymicolymphaticus. He also stated that the condition exists from birth and renders a person in a weakened condition, thereby making the person susceptible to sudden death from trivial trauma, shock or fear. The doctor further testified that a person with this condition could die suddenly where no shock or fear was apparent and the cause precipitating death could not be determined. He also testified that status thymicolymphaticus renders the adrenal gland smaller than normal, causing a loss of body sugar, but he stated that science has been unable to explain why the body is not able to cope with this malady.

Finally the doctor testified in response to the State’s hypothetical question that he was not positive as to three blows causing the deceased’s death based upon the autopsy and reasonable medical certainty.

The defendant first asserts that the corpus delicti of the offense of voluntary manslaughter was not established beyond a reasonable doubt. There is no doubt that such proof is necessary to sustain the conviction. (People v. Manske, 399 Ill. 176, 77 N.E.2d 164; People v. Bailey, 56 Ill.App.2d 261, 205 N.E.2d 756.) The defendant’s assertion is based upon the testimony of the pathologist. The doctor stated that although he was not certain that the three blows caused the death that the blows may have caused the death. The corpus delicti in a homicide case consists of proof that the death was caused by the criminal agency of some person. (People v. Watts, 101 Ill.App.2d 36, 241 N.E.2d 463.) The defendant asserts that because of the doctor’s testimony that there was not proof beyond a reasonable doubt that the death was caused by the defendant. The State does not have the burden of proving guilt beyond any possibility of doubt. (People v. Branion, 47 Ill.2d 70, 265 N.E.2d 1; People v. Hunter, 3 Ill.App.3d 676, 279 N.E.2d 490.) The defendant’s conviction need not be reversed, therefore, merely because there is a possibility that his criminal agency did not cause the death.

The defendant cites People v. Benson, 19 Ill.2d 50, 166 N.E.2d 80, a case in which the supreme court reversed a murder conviction. In that case, a 69-year-old woman died shortly after she had been raped by the defendant. The doctor who performed an autopsy on the woman testified that she had been suffering from brain lesions which had caused seepage of blood into the brain for weeks or months prior to the decedent’s death. The doctor stated that in his opinion the death resulted from a combination of several things and that the main thing was the sexual assault in conjunction with the recent brain damage. He also stated that a lesser cause was the older brain lesions. The court reversed the murder conviction because it was not proved beyond a reasonable doubt that death resulted from criminal agency and stated:

“* * * it is a maxim of our law that where an act may be attributed to a criminal or to an innocent cause it will be attributed to an innocent cause rather than to the criminal one. A crime is never presumed where the conditions may be explained on an innocent hypothesis.” 19 Ill.2d at 61, 166 N.E.2d at 86.

The Benson case, however, is distinguishable from the instant case. In Benson the evidence showed that it was very possible that the deceased died from a cause, the brain lesions, which was completely independent from any criminal act by the defendant. It was possible, in other words, that the deceased would have died from the brain lesions whether she was sexually attacked or not. In the instant case, the physical defect of the decedent would not cause death unless triggered by some event. There is evidence that the triggering event was the defendant’s criminal agency. Also, in Benson there was no evidence of how the sexual attack could have combined with the physical condition of the woman to cause death. In this case there is medical testimony that the attack by the defendant could very likely have combined with the decedent’s physical condition to cause death.

The case of Cunningham v. People, 195 Ill. 550, 63 N.E. 517, is nearer the present factual situation. In Cunningham the evidence indicated two men robbed the décedent and punched him in the head. The decedent then got up, staggered a few feet, fell down, and died soon thereafter. Medical evidence indicated that the man’s heart was in such a condition that any excitement at all could have produced a sudden death. Although the defendant’s conviction of manslaughter was reversed for other reasons, the court stated:

‘It was a question for the jury to determine whether the bruises upon the head of the deceased were caused by the blow from file fist or by the fall upon the pavement, and whether the fall upon the pavement was because of an injury or shock resulting from the blow, or from drunkenness, or from the effects of his many ailments.” 195 Ill. at 566, 63 N.E. at 523.

We therefore hold that it is a factual question for the jury to decide whether the death was caused by the criminal agency of the defendant. There is adequate competent evidence in the record to support the jury’s findings.

It is undisputed that thé defendant had a fight with Carl Waters in the pool room before he struck the deceased. The defendant claimed that Thompson, the deceased, aided Waters in that altercation by striking the defendant with a pool stick. The defendant admitted that he then went outside, picked up a pipe, went back into the pool room and, because Thompson had his pool stick up in the air, struck the deceased with the pipe. Harold Terrell stated that while the defendant and the deceased were in Garrett’s Pool Room, he was across the street in Garrett’s Tavern. He went to the pool room when he heard that the defendant was being beat up, and when he got there the defendant was dirty and bleeding, and Thompson was shooting pool. Terrell stated that if there had been an incident between Carl Waters and the defendant, he had not seen it. Terrell testified that he then went to the washroom, and soon after he came out he saw the defendant entering the pool room with something like a stick in his hands. Terrell said that when Thompson turned around with the pool stick, the defendant hit Thompson in the side. The deceased then raised the pool stick, the defendant struck the pool stick and hit Thompson in the side, and the defendant then hit Thompson for the third time in the lower part of his body.

Carl Waters testified that he went across the street to Garrett’s Tavern after he had the fight with the defendant. Waters said that 7 or 8 minutes later he noticed the defendant walking up the street with something like a stick or a cane in his hand. Waters then went back to the pool room and stated that he saw the defendant and Thompson fighting. He further testified that the defendant swung at Thompson and that .Thompson fell to the floor, but he never saw the defendant actually hit Thompson.

Waters testified, however, that he got to the pool room while the fight was going on and that the defendant might have hit Thompson earlier. Considering this with Terrell’s testimony that the defendant struck Thompson three times, it was not unreasonable for the jury to find that the defendant struck Thompson and caused the death.

It is also relevant that Thompson collapsed immediately after being struck. Charles Wright testified that he was iji Garrett’s Tavern when he was told that Thompson, an acquaintance, was on the floor in the pool room. He immediately went to the pool room and saw that Thompson was gasping for breath. Thompson took a few breaths and Wright heard no more. Wright then searched for a heartbeat and got no reaction. Thad Harrell also testified that he came .from the tavern into the pool room immediately after the incident. He stated that Thompson was lying on the floor for about ten minutes until the ambulance came and that Thompson never moved during that time. Robert Thomas, the Madison County coroner, stated that Thompson was dead on arrival at St. Elizabeth’s Hospital. It was not unreasonable for the jury to decide that this testimony ruled out any reasonable hypothesis that the death could be attributed to an innocent cause.

Since the criminal agency of the defendant triggered the death of the deceased, his conviction need not be reversed merely because the blow would not have kfiled a man who was in good health. In Cunningham, the supreme court stated:

“The rule of law is well established that if a person who is enfeebled by disease is unlawfully assaulted, and an injury inflicted upon him which would not have been mortal to a man in ordinary good health but which was mortal to Mm in his then physical condition, the assailant is to be deemed, in law, guilty of unjustifiable homicide, either murder or manslaughter, as the case may be, and that though the assailant did not know the enfeebled condition of the person assaulted.” (195 Ill. at 572, 63 N.E. at 525.)

In People v. Brown, 9 Ill.App.3d 730, 293 N.E.2d 1, the defendant allegedly beat the deceased to death, but medical testimony indicated that death would not have resulted if the deceased had not been drunk. The Court upheld the involuntary manslaughter conviction citing the followipg language from People v. Meyers, 392 Ill. 355, 64 N.E.2d 531, 533:

“ ‘The law is that when the State has shown the existence, through the act of the accused, of a sufficient cause of death, the death is presumed to have resulted from such act, unless it appears death was caused by a supervening act disconnected from any act of ...the defendant.’” (9 Ill.App.3d at 734-735, 293 N.E.2d at 4.)

The corpus delicti in the instant case was proved beyond a reasonable doubt..

. The defendant also asserts that the evidence overwhelmingly supported Ms theory of self-defense. It is uncontradicted that the defendant was in a fight with Carl Waters in Garrett’s Pool Room. The elapsed time between tMs fight and the striking of Thompson may be important. The defense claims that Waters and Thompson beat Mm, that he left the pool room only for a few moments, that he came back into the pool room with the pipe because he feared another beating from some men outside the pool room and that he then struck the deceased when Thompson raised his pool stick. The defendant contends, therefore, that Carl Waters and the deceased were the aggressors and that they remained the aggressors.

It must first be noted that the defendant’s testimony to the effect' that Thompson had hit him is uncorroborated. The evidence does not directly contradict the defendant’s statement, but .Carl Waters’ testimony indicates that the first fight was only between himself and the defendant. Waters was not asked whether Thompson had assisted him in the fight.

Even if it were to be determined that Thompson had joined in the beating of the defendant, is seems clear that the defendant was not defending himself from this beating when he later struck Thompson. The defendant’s testimony that he left the pool room only for a moment and returned immediately with a pipe is contradicted by the testimony of Waters, Harrell and Terrell. Waters stated that after he had the fight with the defendant, he (Waters) went across the street to Garrett’s Tavern. About 7 or 8 minutes later Waters allegedly observed the defendant walking toward the pool room with something like a stick or cane in his hands. It was not until this time that the defendant allegedly entered the pool room and struck Thompson. Harrell told a similar story and stated that, after the fight with Waters, the defendant left the pool room. According to Harrell, there was not anyone waiting outside the pool room for the defendant when he left. Harrell stated that after the fight, Waters and he went across the street to the tavern, and about 20 minutes later, he saw the defendant walking toward the pool room with a pipe or stick in his hand. When Harrell went over to the pool room again, Thompson was lying on the floor, and some other men were kicking the defendant. Terrell testified that he arrived at the pool room after the fight between Waters and the defendant. He then went to the restroom and came out about 5 minutes later. At this time Terrell saw the defendant come into the pool room carrying a stick with which he hit Thompson.

The testimony of Waters, Harrell and Terrell indicates that several minutes passed from the time of the fight between Waters and the defendant until the incident in which the defendant struck Thompson. Therefore, even if Thompson had joined in the earlier attack upon the defendant, he should not be considered the aggressor in the later incident.

The defendant asserts that he reentered the pool room carrying an object for his own protection. Based upon the evidence this claim is unfounded. The defendant’s explanation at trial was that he immediately reentered the pool room because of a threatening group of men outside. As previously noted, however, the testimony of Waters, Harrell and Terrell indicates that the defendant left the pool room for several minutes.

The defendant also mentions testimony that Thompson raised his pool stick when the defendant entered the room with a pipe in his hands. It does not seem unreasonable that he would do so if he feared an attack by the defendant. There is no evidence that Thompson threatened to hit the defendant with a stick at this time. Even the defendant did not make such a claim. He stated that Thompson had the stick up, so the defendant hit him. It is suggested, therefore, that it was not unreasonable for the jury to determine that the defendant was not acting in self-defense.

The defendant next claims that the trial court erred in instructing the jury. The defendant had been charged with murder, and he asserted the defense of self-defense. At the instructions conference the defendant offered an instruction defining self-defense, and it was accepted. The State offered two instructions defining the offense of voluntary manslaughter. The first was I.P.I. Criminal Instruction 7.03 which defines voluntary manslaughter as the killing of an individual by one acting under a sudden and intense passion resulting from serious provocation. The defense objected to this instruction, but it was given. The State also offered I.P.I. Criminal Instruction 7.05 which defined voluntary manslaughter as an intentional and knowing killing committed in the belief that the circumstances were such that the killing was done in self-defense, but the belief was unreasonable. The defense counsel stated that he objected to both 7.03 and 7.05, but that if one of those instructions should be given, it should be 7.05 and not 7.03. Since the court had already accepted 7.03 the judge told defense counsel to object to 7.05 or accept it. In fact, the court specifically told defense counsel that it was up to him whether 7.05 would be given. Counsel replied that he would stand on the record with his objection, and Instruction 7.05 was denied. It is obvious, therefore, that the defendant is the party who prevented the giving of Instruction 7.05.

The defendant maintains that, even though he objected to 7.05, the court erred by failing to give that instruction. The defendant cites People v. Sweeney, 114 Ill.App.2d 81, 251 N.E.2d 897, for the proposition that a defendant is entitled to any instruction favorable to his theory of the case if there is any evidence at all supporting that instruction. In Sweeney, however, the defendant had tendered an appropriate instruction, and it was refused. That case does not hold that an instruction favorable to the defendant must be given even though it has not been offered by the defendant, and in fact, if it has been objected to by him.

The defendant also relies on the Committee Note following I.P.I. Criminal Instruction 7.05 which states:

“When the charge is made, the defense is self-defense, and the proof supports a voluntary manslaughter instruction and verdict, the order of instruction should be: Instruction 7.01 (Murder); Second, this Instruction 7.05; Third, applicable instruction from Chapter 24—Defenses.”

The defendant seems to be asserting that the Committee Note requires that, when murder is the charge and self-defense is claimed, Instruction 7.03 cannot be given and 7.05 must be given. We do not agree with such a construction of the Committee Note. At most the note states a requirement that 7.05 should be given if requested. At the least, the note merely suggests the order in which the instructions should be given if they are offered and accepted.

The defendant cites People v. Johnson, 1 Ill.App.3d 433, 274 N.E.2d 168, in which a murder conviction was reversed because the trial court refused to give Instruction 7.05. The court stated:

“When the trial court determined that the facts in evidence justify or require the giving of an instruction on the justifiable use of force, diere are, in fact, three alternatives for the consideration of the jury, i.e., (1) murder, (2) that the use of force was justified and self defense was demonstrated, or (3) that while the defendant might have believed that the use of force was necessary under the evidence, such belief was unreasonable.” (1 Ill.App.3d at 435, 274 N.E.2d at 170.)

The defendant cites this language again seemingly suggesting that, when murder is the charge and self-defense is claimed, Instruction 7.03 cannot be given and 7.05 must be given.

In Johnson, there was absolutely no evidence which could have justified that giving of 7.03. Where die court mentioned the three alternatives available for the jury’s consideration, therefore, it was referring to such a case in which 7.03 was not appropriate. The court was not saying that, in a proper case, 7.03 could not be given as well as 7.05 and thus create a fourth alternative for the jury to consider. Johnson should not be read, tiierefore, as a holding tiiat 7.03 can never be given when the defendant is alleging self-defense.

Johnson did hold, with one judge dissenting, that 7.05 must not be refused if a self-defense instruction is given. Johnson is distinguished from the instant case, however, because the defendant in that case offered 7.05 and it was refused. Johnson does not hold that failure to give 7.05 is error if the defendant had not requested that instruction.

In People v. Zertuche, 5 Ill.App.3d 303, 282 N.E.2d 201, the appellate court followed Johnson and held that if a self-defense instruction was appropriate, then 7.05 should have been given. In Zertuche, however, the defendant had specifically requested Instruction 7.05, and it was denied. We have found no cases in which a reviewing court has reversed a conviction for the failure to give an instruction which the defendant had not requested.

The law is well settled that a trial court does not have to provide an instruction on its own initiative. In People v. Caldwell, 39 Ill.2d 346, 236 N.E.2d 706, the Illinois Supreme Court affirmed a murder conviction in which no manslaughter instructions were given. The court stated:

“We find therefore that the trial judge had no responsibility to give a manslaughter instruction on its own initiative when defense counsel failed to tender one.” (39 Ill.2d at 355, 236 N.E.2d at 712.)

In People v. Coddington, 123 Ill.App.2d 351, 259 N.E.2d 382, this court upheld a murder conviction over the defendant’s contention that the court erred in failing to give an instruction regarding the testimony of an accomplice. This court cited Caldwell and stated:

“In any event, if such an instruction were appropriate on this issue, the record discloses that defendant failed to submit one. And since the trial court is under no duty to give an instruction on its own motion, the defendant should not now be heard to complain of this error.” (123 Ill.App.2d 371, 259 N.E.2d at 392.)

Several other cases have recently recognized the rule that a trial court need not give an instruction on its own initiative. People v. White, 8 Ill.App.3d 416, 291 N.E.2d 46; People v. Holt, 7 Ill.App.3d 646, 288 N.E.2d 245; People v. Lenker, 6 Ill.App.3d 335, 285 N.E.2d 807; People v. Day, 2 Ill.App.3d 811, 277 N.E.2d 745.

The defendant does not specifically claim otherwise, but it does seem clear that there was sufficient evidence to support giving Instruction 7.03. The testimony of Harrell, Terrell and the defendant indicate that Thompson could have prevented Waters from beating the defendant. Waters accused the defendant of stealing a coat from the pool room. The defendant claims that Thompson led him to believe that the coat was his (Thompsons) and that when the defendant found out otherwise, he brought the coat back to the pool room. The testimony indicates that Thompson refused to explain the situation to Waters and that Waters then severely beat the defendant. This is sufficient evidence to submit to the jury that the defendant may have been seriously provoked by the deceased and that he may have acted under a sudden and intense passion resulting from that provocation. It is also relevant that the defendant testified that the deceased had struck him with a pool stick while he was being beaten by Waters.

The trial court did not err by giving Instruction 7.03 and in failing to give 7.05.

The judgment is affirmed.

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


author: Opinion by Mr. JUSTICE T. MORAN.

text:
    John Snyder, Plaintiff-Appellant, v. Clarence Tanner, DefendantAppellee.
    (No. 72-181;
    Second District
    April 3, 1974.
    Raymond T. Brasel, of Batavia, for appellant.
    O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellee.
   Opinion by Mr. JUSTICE T. MORAN.