text:
    Robert Webb, Plaintiff-Appellant, v. Ronald Swick et al., Defendants-Appellees.
    (No. 59412;
    First District (3rd Division)
    December 5, 1974.

      Michael W. Schaefer, of Gordon, Brustin & Schaefer, Ltd., of Chicago, for appellant.
    Bichard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Jerome A. Siegan, Assistant Coiporation Counsel, of counsel), for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from the denial of plaintiffs section 72 motion (Ill. Rev. Stat. 1973, ch. 110, par. 72) to vacate an ex parte order of dismissal the court entered upon the defendants’ motion to strike and dismiss plaintiffs complaint. Plaintiff contends that the court abused its discretion in denying his section 72 motion, that the court improperly granted defendants’ motion to strike and dismiss plaintiffs complaint, and that the statute (111. Rev. Stat. 1965, ch. 85, par. 8 — 102) relied upon in defendants’ motion is violative of the protections afforded in the Constitutions of the United States and the State of Illinois.

We affirm.

The undisputed facts of this case are as follows. On June 2, 1971 plaintiff commenced this action against defendants to recover damages allegedly caused by the conduct of defendants, two Chicago police officers, on July 5, 1968. On February 9, 1973, a hearing was scheduled for defendants’ motion to dismiss the complaint for plaintiff failure to comply with the statutory notice provisions of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, par. 8 — 102), since defendants were municipal employees at the time of the complained of incident. Plaintiffs counsel alleges that he had departed the designated courtroom for a short time, after having first asked that the hearing be delayed for a short period of time. Counsel returned “a short period of time” later to find that defendants’ motion had been granted ex parte and plaintiffs complaint had been dismissed. On the 30th day after the order, plaintiff’s notice of motion to vacate the ex parte order was served upon defendants and plaintiffs lawyer’s clerk spindled the matter to come up for hearing by the court on March 13, 1973. At the hearing, the trial court refused to entertain plaintiff’s motion because such motions may be brought to the trial court only within 30 days of an order or judgment, noting that the motion was presented on the 31st day.

Subsequently, plaintiff moved under section 72 of the Civil Practice Act to vacate the ex parte order of dismissal of February 9, 1973. The court heard arguments on the motion and found that plaintiff was not entitied to relief under section 72 and denied the motion. Plaintiff appeals only from the denial of his section 72 motion.

Plaintiffs first allegation of error is that the trial court abused its discretion in denying plaintiff’s section 72 motion. The court found that the plaintiff was not diligent in presenting a motion to vacate the prior order, and had not properly alleged a meritorious defense pursuant to section 72 of the Civil Practice Act.

A petition under section 72, although filed in the original proceeding, is not a continuation thereof, but is treated as a new action. It has the limited function of bringing to the court’s attention facts not appearing of record which, if known to the court at the time of its order, would have prevented rendition of the order. (People v. Stevens (1970), 127 Ill.App.2d 415, 419.) The petitioner must allege ultimate facts in his petition which reveal both a meritorious defense in the original action and the exercise of due chligence in presenting such a defense. (Hall v. Hall (1973), 15 Ill.App.3d 599, 602.) Such a petition is addressed to the sound discretion of the court, whose ruling will not be interfered with unless there was an abuse of that discretion. Skach v. Lydon (1973), 16 Ill.App.3d 610.

In the instant case, the trial court entered an ex parte order upon defendants’ motion to strike and dismiss plaintiff’s complaint for failure to comply with the statutory notice requirements of section 8 — 102 of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, par. 8 — 102). This section provides that * * any person who is about to commence any civil action for damages on account of such injury against a local public entity, or against any of its employees whose act or omission committed while acting in the scope of his employment as such employees caused the injury,” must serve notice upon the local public entity within six months of the date the cause of action arose. The court’s order stated that the court was “advised in the premises” and that there was “no insurance in the matter as to the Police Department of the City of Chicago.” To properly allege a meritorious defense to defendants’ motion, plaintiff should have aHeged sufficient facts not appearing of record which, if known to the trial court would have prevented the court’s order dismissing plaintiff’s complaint.

With regard to his defense to defendants’ motion, plaintiff’s affidavit accompanying his section 72 motion states:

“That the dismissal was apparently based upon statute [sic] of the State of Illinois which is not applicable to this cause of action or if held to be applicable said statute would be in violation of the protections afforded in both the Ilfinois and the United States Constitutions.”

Defendants argue in support of the court's ruling that plaintiffs petition merely states legal conclusions which are insufficient to support a section 72 motion.

In Aetna Casualty & Surety Co. v. Sanders (1973), 15 Ill.App.3d 573, 577, the court wrote:

“The decisions are numerous holding that the grounds and facts upon which the merits of the defense arise must be stated so that the court will be able to judge the merits of such defense. [Citations.]”

In that case, the petitioner’s allegation that she “was not responsible for the injuries” was held to be nonfactual, and a conclusion of the pleader which was an insufficient showing of a good and meritorious defense under section 72.

In the case at bar, we reach a similar conclusion, and hold that plaintiffs bare allegations that the notice statute involved (Ill. Rev. Stat. 1965, ch. 85, par. 8 — 102) was “not applicable to this cause of action” and unconstitutional were insufficient to state sufficient facts to properly allege a meritorious defense to defendants’ motion to dismiss plaintiff’s complaint for failure to comply with the notice statute. Accordingly the court below did not err in denying plaintiff’s section 72 motion.

Although plaintiff argues that this court should exercise its equitable powers to prevent injustice, we feel that the circuit court properly exercised its power in this case, and we decline to interfere.

In passing, we note that plaintiff has failed to file either excerpts from the record or an abstract of record with this court, as provided for in Supreme Court Rule 342(b). Although we would have been warranted in dismissing the instant appeal for such a failure, we chose to consider the case on its merits. The same result would have been obtained. Denenberg v. Prudence Mutual Casualty Co. (1970), 120 Ill.App.2d 68; Frederick Chusid & Co. v. Collins Tuttle & Co., Inc. (1973), 10 Ill.App.3d 818, 295 N.E.2d 74.

Plaintiffs remaining contentions concerning the propriety of the circuit court’s granting of defendants’ motion are raised for the first time on appeal, and therefore will not be considered.

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

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE McGLOON

license: Public Domain

text:
    Bernadine Lein, Adm’x of the Estate of Wilbert Lein, Deceased, Plaintiff-Appellee, v. Marie Pietruszewski, d/b/a Fullerton Drake Lounge, et al., Defendants-Appellants.
    (No. 60130;
    First District (3rd Division)
    December 5, 1974.

      Paul H. Heineke, of Heineke & Schrader, of Chicago, for appellants.
    John B. Kincaid, of Mirabella, Facktor, Mirabella & Kincaid, of Wheaton, for appellee.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This appeal is from a judgment in the trial court entered against defendants, Marie Pietruszewski, Robert Culum, and Julia Culum, under the Dram Shop Act. (III. Rev. Stat. 1969, ch. 43, par. 135.) In her complaint, Bemadine Lein, as administratrix of the estate of Wilbert Lein, deceased, alleged that Robert and Julia Culum were the owners or trustees of the Fullerton Drake Lounge located at 3545 W. Fullerton Avenue in Chicago and that Marie Pietruszewski was the operator of said lounge; that they respectively sold and permitted to be sold alcoholic beverages to Daniel D’Amico and Edward Kuffel to the point that they became intoxicated; and that as a result of such intoxication they stabbed plaintiff’s decedent and caused his death. The jury returned a verdict against defendants and defendants now appeal.

We affirm.

On appeal defendants present three issues for review: (1) whether the plaintiff, suing as an administratrix, was the proper party in the action under the Dram Shop Act to recover for injuries to the means of support of herself and her two minor children; (2) whether the trial court ruled correctly when it sustained an objection to the competency of Mr. D’Amico as a witness and precluded him from testifying at all; and (3) whether the verdicts of the jury are so irrational that they may not be permitted to stand.

On September 27, 1969, Wilbert Lein and Chester Horton arrived at the Fullerton Drake Lounge in Chicago in the early evening. At about 11 P.M. that evening discord developed in the lounge and Horton and Lein began to argue with two other patrons in the lounge, Dan D’Amico and Edward Kuffel. All four of them left the tavern and a fight started. Horton chased D’Amico to his car to continue the fight after D’Amico had retreated to his automobile. D’Amico came out of his car carrying a knife and in the ensuing affray he stabbed Plorton four times and stabbed Lein, who died from the wound.

As a result of this incident a three-count complaint was filed in the circuit court of Cook County. In Count I, decedent’s administratrix, Bemadine Lein, brought action under the Dram Shop Act (Ill. Rev. Stat. 1969, ch. 43, par. 135) against defendants Marie Pietruszewski, the tavern operator, and Robert and Julia Culum, the owners of the premises. In Count II, decedent’s administratrix brought a wrongful-death action under the Injuries Act (Ill. Rev. Stat. 1969, ch. 70) against Dan D’Amico and Edward Kuffel. In Count III, Chester Horton brought a common-law negligence action against D’Amico and Kuffel. The jury returned a verdict of $135,000 against the three defendants in Count I and this amount was reduced by the trial court to $20,000, the maximum recoverable under the Dram Shop Act. The jury returned a verdict of $15,000 against D’Amico in Count II. Kuffel, the other defendant in Count II, was never served. As to Count III, Horton’s common-law negligence action against D’Amico and Kuffel, there were no instructions given to the jury and no verdict was ever returned. Although the record contains no formal dismissal of Count III, nowhere in the record of proceedings at trial is Count III ever considered.

This appeal concerns only the Count I defendants. D’Amico, a defendant in Count II, has not appealed the $15,000 verdict against him.

Dram Shop defendants’ first contention is that the administratrix was not a proper party plaintiff to bring the action under the Dram Shop Act. (Ill. Rev. Stat. 1969, ch. 43, par. 135.) Plaintiff responds that this objection was not raised by answer, motion, or post-trial motion and was therefore waived. Defendants reply that in their answer to the first amended complaint, they denied that the plaintiff, Bernadine Lein, as administratrix, had a right to sue. Defendants, in answer to paragraph no. 8 of Count I of plaintiff’s amended complaint state the following: “They deny the aHegations of paragraph 8, except that they admit there is in force and effect a statute commonly known as the Dram Shop Act.” Paragraph 8 of Count I of plaintiff’s amended complaint reads as foHows:

“That by virtue of the provisions of Chapter 43, Section 135 of the Illinois Revised Statutes, plaintiff is entitled to recover her damages of and from the defendants, Marie Pietruszewski, Robert Culum and Julia Culum.”

We do not believe that such a general denial that plaintiff was entitled to relief is sufficient to preserve on review the issue of whether or not administratrix was a proper party to sue under the Dram Shop Act. This issue was never argued in the trial court and was not raised by motion or post-trial motion. It is a well estabfished rule that an appellate court does not have authority to consider a matter not passed upon by the trial court. (Trisko v. Vignola Furniture Co. (1973), 12 Ill.App.3d 1030, 1034, 299 N.E.2d 421, 424; Ray v. City of Chicago (1960), 19 Ill.2d 593, 602, 169 N.E.2d 73, 78; Consoer, Townsend & Associates v. Addis (1962), 37 Ill.App.2d 105, 109-10, 185 N.E.2d 97, 99.) Furthermore, “an appellate court should not, and will not, consider different theories or new questions if proof might have been offered to refute or overcome them had they been presented at the trial.’” Hux v. Raben (1967), 38 Ill.2d 223, 225, 230 N.E.2d 831, 832.

Furthermore, the objection that the plaintiff, as representative of deceased, was an improper party plaintiff, is an objection to the pleadings which should have been raised by motion. (Ill. Rev. Stat. 1973, ch. 110, par. 45(1).) Section 45(1) further requires that “[t]he motion shaU point out specifically the defects complained of * * Defendants did not file any motion with respect to the pleadings and the objection that plaintiff was an improper party under the statute was not specificaHy set out in the answer. Paragraph 8 of defendants’ answer to Count I of the amended complaint denies only the allegation in the amended complaint that “by virtue of the Dram. Shop Act plaintiff is entitled to recover damages from defendants.” The essential, specific words “improper party plaintiff,” “not the real party in interest,” or the like, are never used.

Defendants’ second contention is that the trial court committed reversible error when it refused under the Dead Man’s Act to allow D’Amico to testify in his own behalf to the events of the stabbing.

The Dead Mans Act has been amended effective 1973, but this amendment has no application to the present case. The version of the Dead Man’s Act applicable to this case is section 2 (Ill. Rev. Stat. 1969, ch. 51, par. 2) which reads in pertinent part as follows:

“No party to any civil action, suit or proceeding, or person directly interested in the event thereof, shall be allowed to testify therein of his own motion, or in his own behalf, by virtue of the foregoing section, when any adverse party sues or defends as the trustee or conservator of any habitual drunkard, or person who is mentally ill or mentally deficient, or as the executor, administrator, heir, legatee or devisee of any deceased person, or as guardian or trustee of any such heir, legatee or devisee, unless when called as a witness by such adverse party so suing or defending, and also except in the following cases, namely:
t$ e #
Third — Where, in any such action, suit or proceeding, any such party suing or defending, as aforesaid, or any persons having a direct interest in the event of such action, suit or proceeding, shall testify in behalf of such party so suing or defending, to any conversation or transaction with the opposite party or party in interest, then such opposite party or party in interest shall also be permitted to testify as to the same conversation or transaction.”

Under the third exception, if Chester Horton, who testified at trial, was a party suing, then D’Amico’s testimony should have been allowed. If Horton was not a party suing then D’Amico’s testimony was properly disallowed under the Dead Man’s Act.

In Count III of the amended complaint, Chester Horton is a plaintiff complaining against defendants D’Amico and Kuffel. Plaintiff, Bernadine Lein, states in her brief that during the course of the discovery deposition of Chester Horton, taken 5 months before the trial, attorneys for both defendants were advised that Mr. Horton was no longer pursuing his case against the defendants. Plaintiff further states in her brief that when the case was assigned to trial the court was advised that Mr. Horton was no longer a party plaintiff and that the court requested defense counsel to prepare an appropriate order.

Defendants correctly state that there is no record of any conversations concerning Horton’s dismissal as a party plaintiff. Furthermore, no order dismissing Horton from the case was ever prepared. Although it is true that there was never any formal dismissal of Horton from the case, we believe that the case, taken as a whole, indicates that Horton was not a party suing when the case went to trial.

Throughout the entire proceedings in the trial court, the plaintiff was referred to in the singular. In giving the instructions to the jury the court referred only to Bernadine Lein, the plaintiff in Counts I and II. No instructions were even tendered concerning Count III. Furthermore, the jury entered verdicts for the plaintiff, Bernadine Lein, on Counts I and II, but entered no verdict on Count III. Counsel for defendant D’Amico, who in the amended complaint is being sued by both Bernadine Lein in Count II and Chester Horton in Count III, referred to plaintiff in the singular in his closing argument. When Chester Horton testified at trial, he did not testify to any medical treatment, expenses or disability relating to his injuries. In light of these facts, we believe that Chester Horton appeared at the trial as a witness and not a party in interest and that the trial court ruled correctly in barring D’Amico’s testimony under the Dead Man’s Act.

Defendants’ third contention is that the verdicts of the jury are so irrational that they may not be permitted to stand. On Count II, the wrongful-death count, the jury returned a verdict of $15,000. On Count I, the Dram Shop count, the jury returned a verdict of $135,000, which was reduced by the trial court to $20,000, the maximum recoverable under the Dram Shop Act. The defendants’ argument is that damages for "pecuniary injuries” recoverable under the wrongful-death act include damages for loss of “means of support” recoverable under the Dram Shop Act. Defendants argue that because the jury returned a verdict of $15,000 (Hi the wrongful-death count, this was the upper limit of recovery for loss of means of support under the Dram Shop count.

We have reviewed the cases cited by the defendants and find nothing that dictates that the $15,000 recovery awarded by the jury under the wrongful-death count was the upper limit of recovery under the Dram Shop count. The procedure to be used in assessing damages under the Dram Shop Act is clearly stated in Kurth v. Amee, Inc. (1972), 3 Ill.App.3d 506, 510, 278 N.E.2d 162, 165:

“We believe that the proper procedure is to assess the total damages, without reference to any amounts already received, and then reduce the verdict by such amounts. The difference, of course,

would be subject to the maximum limits provided in the Act.” Using this procedure, the $135,000 awarded by the jury under the Dram Shop Act should be reduced by $15,000, with the resulting $120,000 subject to the $20,000 maximum recovery under tire Dram Shop Act. This procedure was followed by the trial court.

Furthermore, the elements of damages for “pecuniary injuries” and the elements of damages for “loss of support” as set out in the instructions are not so similar that it could be said that the jury was acting under an erroneous impression of the law when it returned verdicts with such a large monetary spread.

For the reasons above stated, we affirm the judgment of the circuit court of Cook County.

Judgment affirmed.

McNAMARA, P. J„ and DEMPSEY, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ricardo Norals, Defendant-Appellant.
    (No. 60003;
    First District (1st Division)
    December 2, 1974.
    James J. Doherty, Public Defender, of Chicago (Robert P. Isaacson, Assistant Public Defender, and Frederick F. Cohn, of counsel), for appellant.
    Remard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael J. PoleUe, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    Harvey Walker et al., Plaintiffs-Appellants, v. John C. Marcin, City Clerk, of Chicago, et al., Defendants-Appellees. Curtis A. Shank et al., Plaintiffs-Appellants, v. John C. Marcin, City Clerk, of Chicago, et al., Defendants-Appellees.
    (Nos. 59213-4 cons.;
    First District (3rd Division)
    December 5, 1974.
    Morton Siegel, of Chicago (Allan Goldberg, of counsel), for appellants.
   PER CURIAM.

Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Lucia T. Thomas, Assistant Corporation Counsel, of counsel), for appellee John C. Mamin.

Arthur S. Gomberg and Joel H. Greenburg, both of Chicago, for amicus curiae 8300 South May Block Club.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael O’Connell, Defendant-Appellant.
    (No. 73-200;
    Second District
    December 30, 1974.
    Daniel Burke, of Kuhn & Geraghty, of Glen Ellyn, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Ralph J. Gust, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant, after being stopped by an officer monitoring a traffic radar unit, was cited for speeding and for driving while his license was suspended. (Ill. Rev. Stat. 1971, ch. 95%, §§ 11 — 601(b) and 6 — 303(a), respectively.) After a bench trial, he was found guilty on both charges, fined $25 plus costs on the first and $100 plus costs on the second. A 7-day sentence in the county jail was imposed in accordance with the finding of guilt on the latter charge; sentence was suspended. Defendant appeals, claiming that it was prejudicial and reversible error to allow, over objection, the introduction of a certified copy of his driving abstract which contained evidence of two prior convictions for driving while his license was suspended.

The same issue was passed upon by this court in People v. Gathman, 12 Ill.App.3d 904 (1973). There, as here, the defendant cited People v. Archibald, 3 Ill.App.3d 591, 594-595 (1972), as authority for his claim that evidence is incompetent where it tends to show the commission of other offenses unrelated to the offense with which defendant is charged. This court held that such rule related to jury trial, but that in bench trials, criminal and civil, the judge, as trier of fact, is presumed to have considered only such evidence as is competent. People v. Gathman, supra, and cases cited therein.

The State’s submitting into evidence a copy of a driving abstract which shows prior and various offenses is a practice to be discouraged. In a jury trial, such practice would be grounds for reversal even if the other entries on the abstract had been obliterated. (People v. Archibald, 3 Ill.App.3d 591 (1972).) In a trial without a jury, the State is not relieved of observing fundamental fairness. It would, therefore, be the preferred practice for the State to obtain a certified driving abstract free of reference to any offenses unrelated to the charge.

In this case, defendant’s guilt was proven, without reliance on the driving abstract, by the unrebutted testimony of the police officer who related defendant’s admission to driving while his license was suspended.

Judgment affirmed.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. JUSTICE RECHENMACHER.

text:
    The People ex rel. Donald Ballard, Petitioner-Appellant, v. Peter B. Bensinger et al., Respondents-Appellees.
    (No. 73-449;
    Second District (2nd Division)
    January 2, 1975
    Ralph Ruebner, of State Appellate Defender’s Office, of Elgin, for appellant.
    William Sisler, State’s Attorney, of Freeport, for the People.
   Opinion by

Mr. JUSTICE RECHENMACHER.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Scott Feigleson, Defendant-Appellant.
    (No. 73-351;
    Second District (1st Division)
    January 2, 1975.

      Kenneth Moy, of Elmhurst, for appellant.
    John J. Bowman, State’s Attorney, of Wheaton (Malcolm F. Smith, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant, on September 4, 1972, was involved in a two-car accident at the corner of Belden and West Avenues in Elmhurst, in which his car ran into the rear of another, damaging both. He was charged with failing to reduce his speed in order to avoid an accident, in violation of section 11 — 601 of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95Vz, par. 11 — 601). On September 20, 1972, he was, on a bench trial, found guilty and fined $10, plus $5 costs.

On October 19, 1972, the defendant filed a document in the trial court worded as follows:

“NOTICE OF APPEAL FOR NEW TRIAL
NOW COMES SCOTT FEIGLESON, Defendant, by and through
his attorney, KENNETH MOY, and states to the Court as follows:
1. That the verdict was against the manifest weight of the evidence.
2. This was an accident case in which no direct eye witnesses appeared against the defendant.
3. That Judge Borovic took the evidence of the officer on reconstruction and that the cars were moved.
4. That the attorney for the defendant made proper motion for dismissal at the end of the State’s case and then did not proceed any further.
WHEREFORE, your petitioner prays that a new trial be granted the defendant.”

On the next day, the above post-trial motion was withdrawn and was refiled, in the same form, on January 24, 1973. On January 25, 1973, an order was entered reciting that notice of defendant’s appeal had been filed within 30 days, setting the appeal bond at $30 and extending the time for filing the record in the appellate court to April 4, 1973. On February 15, 1973, the defendant filed another document in the trial court, worded as follows:

“PLEASE TAKE NOTICE that Defendant SCOTT FEIGLESON hereby appeals to the Appellate Court for the Second District of the State of Illinois from the' suspension of January 26, 1973, against the Defendant. The Defendant prays that the Appellate Court reverse the Order of the Trial Court and find for the Defendant.”

After various extensions, a record was finally filed which included, in lieu of a report of proceedings, an “Agreed Statement of Facts” reflecting, in an extremely skimpy way, the testimony, objections, motions and rulings at the trial.

Although the case has been briefed and submitted without objection to our jurisdiction or any motion to dismiss the appeal, this court cannot ignore the matters above set forth insofar as they relate to our jurisdiction.

Rule 606 of the Supreme Court (Ill. Rev. Stat. 1971, ch. 110A, par. 606) in pertinent parts, provides as follows:

“(b) Time. The notice of appeal shall be filed within 30 days from the entry of the order or judgment from which the appeal is taken; or if the appellant applies for probation or files a motion for a new trial or in arrest of judgment, the notice of appeal shall be filed within 30 days after the ruling of the court on the application for probation or the denial of the motion. Except as provided in the next paragraph, no appeal may be taken from a trial court to a reviewing court after the expiration of 30 days from the entry of the order or judgment from which the appeal is taken.
(c) Extension of Time in Certain Circumstances. On motion supported by a showing of reasonable excuse for failing to file a notice of appeal on time filed in the reviewing court within 30 days of the expiration of the time for filing the notice of appeal, or on motion supported by a showing by affidavit that there is merit to the appeal and that the failure to file a notice of appeal on time was not due to appellant’s culpable negligence, filed in the reviewing court within six months of the expiration of the time for filing the notice of appeal, in either case accompanied by the proposed notice of appeal, the reviewing court may grant leave to appeal and order the clerk to transmit the notice of appeal to the trial court for filing.”

The final judgment (fine and costs) which the defendant here challenges was entered on September 20, 1972. Although a document entitled “Notice of Appeal for New Trial” was filed within 30 days (October 19, 1972), its text makes it clear that it was actually a post-trial motion for a new trial and sought relief, not from an appellate court, but from the trial court. Furthermore, the defendant withdrew it the next day and refiled it, in precisely the same form, on January 24, 1973, more than 4 months later. Neither of these documents constituted a notice of appeal to this or any other reviewing court.

The first document that could be considered a notice of appeal was that filed on February 15, 1972, almost 7 months after the final judgment here challenged. Not only was said notice of appeal filed too late, but it purports to appeal, not from the conviction and sentence (fine and costs) of September 20, 1972, but from “the suspension of January 26, 1973.”

Obviously, the “suspension” referred to was an administrative suspension of his driving permit by the Secretary of State under article II of the Illinois Vehicle Code (Ill. Rev. Stat. 1971, ch. 95%, par. 6 — 206 (a)(2)) for three “moving” violations within 1 year, and the only manner of challenging such an administrative order would be under the Administrative Review Act. ILl. Rev. Stat. 1971, ch. 95%, par. 6 — 212.

In any event, not only was the defendant’s notice of appeal too late but he has never appealed from the conviction and fine which he here attempts to challenge by his brief and argument.

In People v. Ilg (1965), 60 Ill.App.2d 295, 210 N.E.2d 20, the defendant was convicted of driving his car while under the influence and on April 1, 1964, was fined $100 and $5 costs. In July of 1964, he filed a writ of error comm nobis raising certain evidentiary points, but he did not challenge the validity of the information. His motion was denied on July 31, 1964, and on that same day he filed a notice of appeal from that denial but not from the conviction of April 1, 1964. On his appeal, he contended that the information was void in that it did not charge a crime and was not brought in the authority of the People of the State of Illinois.

In dismissing his appeal, the Appellate Court for the First District, at pages 298-299, said:

“We agree with the position taken by the State. Defendant could have perfected his appeal from the order of April 1, 1964, either by filing a notice of appeal within 30 days of the conviction or by filing a petition for leave to appeal in this court. Defendant did not comply with the prerequisites of Supreme Court Rule 27 (7) (a) and thus his appeal as to the order of conviction is ineffectual. Johnson v. Cook County, 368 Ill. 160, 13 N.E.2d 169 (1938). Walton v. Winter & Hirsch, Inc., 18 Ill.App.2d 540, 152 N.E.2d 602 (1958).
Defendant contends that the State made no attempt to dismiss his appeal and thus is estopped from alleging that this court has no jurisdiction. We disagree with defendant. Failure to file a notice of appeal cannot be waived by agreement of the parties or by an estoppel arising out of the conduct of either party. Wishard v. School Directors of Dist. No. 11, 279 Ill.App. 333 (1935).”

In People v. Nordstrom (1966), 73 Ill.App.2d 168, 219 N.E.2d 151, this court, through Mr. Justice Davis, at page 177, said:

“* * * [A]n accused must perfect an appeal from the judgment of guilty within 30 days from the entry thereof unless the accused applies for probation, and if such application is made, he must then perfect an appeal from the judgment of guilty, as well as from the order granting or denying probation, within 30 days from the date of the order which rules on the petition for probation.
* * * In the case at bar, we hold that the defendant did not file notice of appeal in apt time to review his original judgment of guilt and that we cannot now review such judgment.”

In People v. Davis (1971), 133 Ill.App.2d 611, 273 N.E.2d 540, the First District, at page 612, said:

“Defendant’s appeal must fail for the following reasons: Under Supreme Court Rule 606(b) an appeal must be perfected within 30 days of the entry of the order of judgment appealed from. This section is mandatory. (People v. Nordstrom (1966), 73 Ill.App.2d 168, 219 N.E.2d 151.) Because the appeal was not filed until 23 months after the judgment was entered, the appeal is not timely.”

And in People v. Kennedy (1972), 8 Ill.App.3d 1041, 291 N.E.2d 256, the Fourth District, through Mr. Justice Smith, at page 1043, said:

“The notice of appeal was not filed until more than four and one half months after the entry of the judgment finding the defendant guilty of aggravated battery and there was no excuse claimed or stated for failure to file a notice of appeal within 30 days as required by Supreme Court Rule 606(b) nor was there any showing by affidavit that there was merit to the appeal and that the failure to file within the time limited was not due to the appelIant’s culpable negligence. Accordingly, the appeal must be dismissed on the courts own motion for want of jurisdiction.”

We likewise, on the eourt’s own motion, dismiss the appeal for want of jurisdiction.

Appeal dismissed.

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


text:
    Nicholas Migliore, Plaintiff-Appellant, v. The County of Winnebago et al., Defendants-Appellees.
    (No. 73-177;
    Second District
    December 27, 1974.

      Foster A. Smith and David F. Smith, both of Loves Park, for appellant.
    North, North & Ohlson, of Rockford (Larry E. Ohlson, of counsel), for appellees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiff brought an action under the Local Governmental and Governmental Employees Tort Immunity Act (III. Rev. Stat. 1971, ch. 85, § 2— 202) to recover damages caused by the alleged wilful and wanton misconduct of the defendants. The jury returned general verdicts finding the defendants not guilty. The jury further found, by way of two special interrogatories, that the defendants were not, but the plaintiff was, guilty of wilful and wanton negligence which proximately caused the occurrence in question.

Plaintiff appeals contending that (1) the conduct of defendants was wilful and wanton; (2) plaintiffs conduct, as a matter of law, was not wilful and wanton; (3) the trial court erred in admitting certain evidence; (4) defense counsel’s argument to the jury was prejudicial; and (5) the jury was improperly instructed.

On April 28, 1971, an attorney called plaintiff and asked if he would testify the next day in a matter involving the construction of a swimming pool. Plaintiff refused. The attorney informed plaintiff that he would have him subpoenaed. Plaintiff responded that he intended to evade the subpoena.

Later that same day, Winnebago County deputies Sweet and Kraut were commanded by subpoena to summon “Nick Migliore, Rockford Sewer, 6204 Forest Hills, Loves Park, 111.” to testify the following afternoon in the circuit court in Rockford, Illinois. A check for $12, made payable to Nick Migliore, was attached to the subpoena. That evening, the officers, both in uniform, arrived at the address and were admitted by plaintiff. One of the officers told plaintiff they were there to serve Nick Migliore with a subpoena, and asked if he was that person. Plaintiff stated, “I don’t know.” The officer again asked and plaintiff responded, “Get out, you are on private property.” Thereupon, the officer touched the plaintiff’s right arm with the subpoena, laid it on the desk, and left the premises. The officer testified that he was certain that the person with whom he spoke was Nick Migliore.

Later that some evening, the officers became concerned over the earlier events, contacted their superior, Detective Heisler, and were directed to meet him at the plaintiffs house. Upon their arrival at the home, the detective identified himself and plaintiff allowed them to enter his garage. The detective explained that they were there to serve a civil subpoena on Nick Migliore and asked the plaintiff his name. The plaintiff told them to get off the premises, that they were trespassing. The detective told the plaintiff that if he did not tell them who he was, they would arrest him for obstructing a police officer. Plaintiff again told the officers to leave the premises, whereupon he was arrested for the charge stated.

Plaintiff was searched, handcuffed and transported to the police station where, on inquiry and for the purposes of being booked and fingerprinted, he identified himself as Nick Migliore. He was released the following morning after posting bond. On June 10, 1971, the criminal charge was dismissed on motion by the State’s Attorney.

Plaintiff’s complaint charges that the defendants’ conduct, which proximately caused his injuries, was wilful and wanton. He asserts (a) that the jury erred in finding the defendants not guilty of wilful and wanton misconduct, and (b) that as a matter of law, he was not guilty of wilful and wanton misconduct. Plaintiffs position is bottomed on the premise that he has no legal duty as a private citizen to give police officers his name when he is in his own home.

At the time the officers attempted to serve the subpoena, they were under a legal duty to do so. (Ill. Rev. Stat. 1971, ch. 125, § 15.) If they failed to obey the command of tht subpoena they could be held in contempt of court and also held liable for damages to the aggrieved party. (Ill. Rev. Stat. 1971, ch. 125, § 16.) A witness shall respond to any lawful subpoena of which he has actual knowledge if payment of the fee and mileage has been tendered. (Ill. Rev. Stat. 1971, ch. 110A, § 237(a).) Upon execution, the officer must complete the return which states:

“I have duly served the within writ by reading the same to the within named_____as I am hereby commanded this___day of_, 19__”

After accomplishment of the above, the witness is under a legal duty to appear; refusal may constitute contempt of court. Ill. Rev. Stat. 1971, ch. 38, § 155 — 2.

A citizen also has legal duties: not to knowingly resist or obstruct a police officer in the performance of any authorized act (Ill. Rev. Stat. 1971, ch. 38, § 31 — 1); and not to knowingly resist or obstruct the authorized service of any civil process (Ill. Rev. Stat. 1971, ch. 38, § 31 — 3). Courts do not favor those who seek to evade service of summons. (People v. Rauschenberg, 29 Ill.App.2d 293, 300 (1961), affd, 23 Ill.2d 511 (1961).) Resistance or obstruction may be passive as well as active. (People v. Raby, 40 Ill.2d 392, 403-03 (1968); People v. Shinn, 5 Ill. App.3d 468, 472 (1972); cf. People v. Gibbs, 115 IllApp.2d 113 (1969); Township of East Brunswick v. Malfitano, 108 N.J. Super. 244, 260 A.2d 862 (1970); People v. Cooks, 58 Cal. Rptr. 550 (Super. Ct. San Diego County 1967); 44 A.L.R.3d 1018 (1972).) A citizen may be found guilty of resisting or obstructing a police officer in the performance of his duty merely by stating that he will not move on when requested to do so by a police officer. City of Chicago v. Meyer, 44 Ill.2d 1 (1969).

Applying the law to the facts related, we are of the opinion that at the time defendants attempted to serve the subpoena upon plaintiff, they were acting under a legal, authorized duty. Performance of this duty included a determination that the person to be served was in fact Nick Migliore. The determination was necessary for two reasons: to establish that plaintiff had actual knowledge of the subpoena and to make possible a proper return as commanded by the court. We therefore hold that plaintiff, upon being informed of the nature of defendants’ business, was under a legal duty to comply with defendants’ request by giving his name.

Plaintiffs theory of the case at bench was premised on the assumption that he was under no duty to give his name to the defendants and, therefore, he committed no offense for which he could be arrested. Based upon this initial premise, plaintiff reasons that the subsequent acts of being arrested, handcuffed, photographed, fingerprinted, and confined constituted wilful and wanton negligence on the part of the defendants.

An officer may arrest without a warrant, when he has reasonable grounds to believe that the person arrested is committing, or has committed, a crime. (Ill. Rev. Stat. 1971, ch. 38, §107 — 2(c).) Here, after being specifically advised that his continued refusal to state his name would constitute an obstruction of a police officer in the performance of his duty, plaintiff persisted in his unwarranted action. Under the circumstances, plaintiffs arrest was not improper. The record reveals that defendants, in effecting the arrest, used no unreasonable force. The belligerent attitude of the plaintiff was sufficient basis for the use of handcuffs. Ill. Rev. Stat. 1971, ch. 38, § 7 — 5.

Upon these facts the jury found defendants not guilty of wilful and wanton negligence. To reverse, it would be necessary that we find the verdict to be against the manifest weight of the evidence, that is, that an opposite conclusion was clearly evident. We cannot so conclude. In reaching this determination it becomes unnecessary for us to consider the issue of whether plaintiff was guilty of any wilful and wanton misconduct as found by the jury.

Plaintiff asserts that his testimony, elicited during cross-examination (that he was subpoenaed because he had earlier refused an attorney’s request to voluntarily appear, and that he intended to avoid the service of process), was improperly admitted over objection. He claims that such evidence was immaterial. Where tire evidence is offered to prove a proposition which is a matter in issue or is probative of a matter in issue, the evidence is material. (McCormick, Handbook of the Law of Evidence 434 ( 2d. ed. 1972).) We find the evidence offered was probative of the issue of plaintiff’s contributory wilful and wanton misconduct and, consequently, that it was admissible. Unfounded, therefore, is plaintiffs further contention that it was error for defense counsel to comment on this evidence during closing argument.

Plaintiff further claims prejudicial error in defense counsel’s statement in argument that defendants must be found to be 100% at fault in order for plaintiff to recover. Plaintiff argues that he could be negligent and still recover against a wilful and wanton defendant. The statement is correct; however, in the instant cause the word “fault” was used as being synonymous to “wilful and wanton misconduct.” While overly broad, the comment was not prejudicial and not reversible error. La Salle National Bank v. Wieboldt Stores, Inc., 60 Ill.App.2d 188, 211 (1965).

Plaintiff’s last contention is that the trial court erred by refusing to give his burden-of-proof instruction in lieu of that of the defendants. Plaintiff’s objection, registered at the conference on instructions, was on different grounds than those now asserted on appeal. At the conference on instructions, grounds for objections shall be particularly specified. (Supreme Court Rule 239(b), Ill. Rev. Stat. 1971, ch. 110A, § 239(b); Johnston v. Basic, 16 Ill.App.3d 453, 457 (1973).) Where specific objections to instructions not previously noted are raised for the first time on review, or in a post-trial motion, they are not properly preserved for review. Delany v. Badame, 49 Ill.2d 168, P78 (1971); Saunders v. Schultz, 20 Ill.2d 301, 314 (1900).

For the stated reasons, the judgment of the trial court is affirmed.

Judgment affirmed.

RECHENMACHER and GUILD, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mark Bolender et al., Defendants-Appellants.
    (No. 73-179;
    Second District
    November 27, 1974.

      Supplemental opinion upon denial of rehearing filed January 17, 1975.

      Charles S. Wilson, III, and Charles W. Toomey, both of Waukegan, for appellants.
    Jack Hoogasian, State’s Attorney, of Waukegan (James W. Jerz and Charles D. Sheehy, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

The defendants, Mark Bolender, James Fassbinder and James Lindley, were charged in a two count indictment with possession of more than 500 grams of a substance containing cannabis, more commonly known as marijuana, in violation of the Cannabis Control Act (Nicholas Migliore, Plaintiff-Appellant, v. The County of Winnebago et al., Defendants-Appellees.. Rev. Stat. 1971, ch. 56%, par. 704(e)) and with possession of more than 30 grams of lysergic acid diethylamide, more commonly known as LSD, in violation of the Controlled Substances Act (Nicholas Migliore, Plaintiff-Appellant, v. The County of Winnebago et al., Defendants-Appellees.. Rev. Stat. 1971, ch. 56%, par. 1402(a)(8)). They waived a jury, were tried by the court, were found guilty and each of the defendants was sentenced to the penitentiary for a term of not less than 4 and not more than 6 years.

The sole issue raised in this appeal concerns the sufficiency of the complaint for search warrant issued on March 21, 1972, by Judge Robert McQueen. The basis of the search warrant was established by the arrest of an informer who advised the sheriff that he had purchased the three bags of marijuana at the residence of the defendants. The informer further advised the sheriff that he had bought marijuana there four or five times before from “Mark.” The complaint for the search warrant reads as follows:

“COMPLAINT FOR SEARCH WARRANT
Now comes your affiant, THOMAS BROWN, of the Lake County Sheriff’s Office, being first duly sworn on oath according to the law of the State of Illinois and under oath does hereby complain to and informs this date, March 21, 1972, in the County of Lake, State of Illinois, that MARK, last name being unknown at this time, an individual approximately six foot in height, weight approximately 160 pounds, with long light brown hair, does have in his personal and constructive possession within that one-story dark brown, wood frame house with blue shingled roof located on the west side of Cedar Lake Road, more commonly known as 1618 Cedar Lake Road, Lake County, Round Lake Beach, Illinois, and within the said premises there is now being concealed certain property, to-wit: Cannabis Sativa L, more commonly known as Marijuana, and possession of the aforementioned property is in violation of Chapter 56V2 of the Illinois Revised Statutes of 1971. And that such information is based upon his interrogation and investigation specifically but not Hmited to the interrogation by your affiant of an informant who has been arrested and charged with Possession of Marijuana at 2:00 p.m. this 21st day of March, 1972, who has informed your affiant approximately fifteen minutes prior to the time of the arrest he was at the above described location and premises and had purchased from MARK, last name being unknown at this time, described as above, over thirty (30) grams of Marijuana. And further that the informant on four or five prior occasions has purchased Marijuana from the same person at the same premises. On each of these five or six occasions the informant has made the purchases without placing any prior orders for the Marijuana and on this particular occasion, the 21st day of March, 1972, the informant when he purchased three (3) plastic bags of Marijuana heard the rustling of numerous plastic bags at the time the above-described MARK brought the three (3) plastic bags of Marijuana from another room, and further that the said possession by MARK is unlawful as set forth in Chapter 56% of the Illinois Revised Statutes, of 1971.
Your affiant further states that he believes from said interrogations and investigations that the said MARK, described above, does have in his possession and concealed in the above described premises the described items mentioned herein.
WHEREFORE, your affiant prays that a Search Warrant may be issued according to the law.
/s/ Thomas Brown THOMAS BROWN Lake County Sheriff’s Department”

The evidence discloses that on March 21, 1972, Sergeant Thomas S. Brown of the Lake County Sheriff’s office executed the above search warrant by going to the premises in question where he found the three defendants and read the search warrant to them. Three other deputies accompanied Sergeant Brown and the premises were searched. A considerable number of bags of marijuana, bricks of marijuana and LSD were found in various parts of the house in question. Defendants do not raise any question as to the amont of the marijuana and LSD recovered by the police officers in the search of the premises.

On April 20, 1972, the defendants filed a motion to quash the search warrant. The trial court conducted a hearing on the motion to quash and denied defendants’ motion on June 8, 1972. Subsequently, on September 14, 1972, as indicated above, the court found the defendants guilty of unlawful possession of marijuana and unlawful possession of LSD.

The basic contention of the defendant is that the complaint for the search warrant does not indicate that the information received from the informant was credible or reliable. In support of this contention the defendant has cited Giordenello v. United States (1958), 357 U.S. 480, 2 L.Ed.2d 1503, 78 S.Ct. 1245. It is to be noted at the outset that Giordenello preceded the cases of Aguilar v. Texas (1964), 378 U.S. 108, 12 L.Ed.2d 723, 84 S.Ct. 1509; Spinelli v. United States (1969), 393 U.S. 410, 21 L.Ed.2d 637, 89 S.Ct. 584; United States v. Harris (1971), 403 U.S. 573, 29 L.Ed.2d 723, 91 S.Ct. 2075. In Giordenello the affidavit of the complainant merely stated that Giordenello received and concealed narcotic drugs. The Supreme Court stated the complaint for the search warrant "does not indicate any sources for complainant’s belief.” Giordenello is not controlling under the facts of the instant case.

The controlling cases under the factual situation presented to us are Aguilar, Spinelli and Harris. Preceeding these three cases the United States Supreme Court had previously held in considering a complaint for a search warrant in Jones v. United States (1960), 362 U.S. 257, 4 L.Ed.2d 697, 80 S.Ct. 725, that “we concur therefor that hearsay may be the basis for a warrant.” In Aguilar v. State of Texas, supra, the Supreme Court cited Giordenello and Nathanson v. United States (1933), 290 U.S. 41, 78 L.Ed. 159, 54 S.Ct. 11, and held that in Aguilar, as in Giordenello and Nathanson, the affidavit was the mere conclusion of the affiant and stated that “the magistrate must be informed of some of the underlying circumstances from which the informant concluded that the narcotics were where he claimed they were, and some of the underlying circumstances from which the officer concluded that the informant, whose identity need not be disclosed, [citation] was ‘credible’ or his information ‘reliable’.” (378 U.S. 108, 114.) The court went on to hold the affidavit did not provide a sufficient basis for a finding of probable cause.

In Spinelli v. United States, supra, the Supreme Court considered Aguilar and again held that the affidavit for the search warrant which therein contained the allegations that the informer was “reliable,” with no other information, was not sufficient to establish probable cause, however, the court in a concurring opinion therein, Justice White stated, “But if, for example, the informer’s hearsay comes from one of the actors in the crime in the nature of admission against interest, the affidavit giving this information should be held sufficient.” 393 U.S. 410, 425.

In United States v. Harris, supra, the Supreme Court again considered the prior cases of Aguilar, Nathanson, Jones and Spinelli. In Harris the court considered an affidavit which contained a statement against the informant’s penal interest, to-wit: “These statements were against the informant’s penal interest, for he thereby admitted major elements of an offense under the Internal Revenue Code.” (403 U.S. 573, 583.) It can thus be seen that in this line of cases the Supreme Court of the United States has arrived at the conclusion that an affidavit based upon an informant’s statement given to the affiant which is against the penal interest of the informant may suffice to establish the reliability and credibility of the informer upon which to base probable cause for the magistrate to issue the search warrant.

The Supreme Court of Illinois in People v. Saiken (1971), 49 Ill.2d 504, considered the cases above and found that a warrant issued upon the assertions of the informant which admitted his implication in a crime was sufficient to lend credence to what he said and that the search warrant issued on such statement to affiant was sufficient and established probable cause for the issuance of the search warrant.

In the case before us the informant was arrested at 2 o’clock in the afternoon and charged with the possession of narcotics. He stated that he had purchased the marijuana 15 minutes before from one “Mark” at the premises here in question. The affidavit of Officer Brown, based upon this information, was presented to the magistrate and the search warrant was issued thereon at 6:15 the same day.

We find that factually the statement of the informant was against his penal interest and, therefore, comes within the purview of Hams, supra. We find that factually there was sufficient basis for a finding of probable cause herein for the issuance of the search warrant based upon the officer’s affidavit or complaint, in which he stated the informant was in possession of marijuana and had stated to him that he had not only purchased the marijuana in question 15 minutes before his arrest but that he had purchased it four or five times before from the same party at the same address.

While it is true in the case before us that the informer had been arrested prior to making the statement as to where and from whom he had purchased the marijuana, we feel that the same principle applies as enunciated in Harris, supra. The informer who had been arrested obviously was not required to make any statement. Nonetheless, he did do so and advised the authorities from whom and where he had purchased the marijuana. We find that the statement was “against the informer’s penal interest * # *” as it certainly could be used against him in any proceeding wherein he might be charged with possession of marijuana.

Another issue to be disposed of is defendants’ contention that the informant had “heard the rustling of numerous plastic bags” at the premises in question. Defendants contend that we should take judicial notice that plastic bags do not make rustling noises. This is not correct. Inasmuch as the defendant has raised the issue, we take judicial notice that plastic bags do, in fact, make rustling noises.

We, therefore, conclude that the complaint for a search warrant herein did in fact constitute probable cause for the issuance of a search warrant for the property in question.

The judgment of the trial court is affirmed.

Affirmed.

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

SUPPLEMENTAL OPINION

In our opinion herein we have cited People v. Saiken (1971), 49 Ill.2d 504, 275 N.E.2d 381, cert. denied, 405 U.S. 1066, 31 L.Ed.2d 796, 92 S.Ct. 1499. In the petition for rehearing counsel for the defendants infers that this court’s reliance on the case is unfounded because of the habeas corpus proceedings brought in the Federal court on behalf of the defendant, Samuel Saiken. We are familiar with the subsequent habeas corpus proceedings filed in the United States District Court, United States ex rel. Saiken v. Elrod (N.D. Ill. 1972), 350 F.Supp. 1156, and the appeal therefrom found in United States ex rel. Saiken v. Ben-singer (7th Cir. 1973), 489 F.2d 865.

We did not, and we do not, feel that the Federal court proceedings in any way affects our decision in the instant case. In United States ex rel. Saiken v. Bensinger, supra, the Circuit Court of Appeals stated:

“We agree with the Supreme Court of Illinois that informant’s disclosure of his participation in the burial would constitute an admission against his penal interest as well as an explanation of the manner in which he obtained his knowledge. 275 N.E.2d at 386-387. Our difficulty, however, lies in the fact that this information was not set forth in the affidavit * * (489 F.2d 865, 867.)

The affidavit for a search warrant in Saiken did not disclose the informant’s participation in the crime. In the case before us the affidavit herein specifically states that the informant, who had been arrested for possession of marijuana 15 minutes before, advised the arresting officer as to the place of purchase and from whom he purchased the marijuana. We have stated that this is a statement against the informant’s penal interest, and we adhere to that decision.

Petition denied.


author: Mr. JUSTICE ALLOY

text:
    Vivian A. Jackson, Plaintiff-Appellee, v. William A. Jackson, Defendant-Appellant.
    (No. 73-255;
    Third District
    December 30, 1974.
    Theodore R. Sherwin, of Sherwin & Sherwin, of Chicago, for appellant.

      Dean J. Sadaro, of Oak Park, for appellee.
   Mr. JUSTICE ALLOY

delivered the opinion of the court:

Defendant, William Jackson, appeals from the decree of the circuit court of Will County which found that Jackson was guilty of mental cruelty toward plaintiff, Vivian A. Jackson, as a ground for divorce. The bench trial, on stipulation of the parties, was held only on the issue of whether grounds for divorce existed. The appeal is on the issue alone of whether the conclusion of the trial court is correct, that a ground of mental cruelty existed by reason of the treatment by defendant Jackson of his wife, Vivian.

The complaint made allegations of physical and mental cruelty, but the trial court found that certain of the mental cruelty allegations and none of the allegations concerning physical cruelty were sustained by the evidence. The finding of mental cruelty for divorce was based principally on defendant William A. Jacksons continued, though nonadulterous, relationship with one Janice Webb, a patient of defendant, who is a physician. During the association of defendant with Janice Webb, the record indicates he was away from home very frequently until early morning hours. He was found to have overly dominated his wife, plaintiff, Vivian A. Jackson, in financial and other marital affairs during this period of time. He also refused to explain his late absences to his wife, and it was shown that the continuous late absences from home caused his wife, with a newborn child, extreme mental distress.

Plaintiff Vivian Jackson filed a complaint for divorce in Cook County on June 29, 1971. Two weeks later the case was transferred to Will County by reason of improper venue. That complaint remained pending until October 13, 1971, when plaintiff took a voluntary nonsuit and thereafter filed the complaint in the instant case. The complaint for divorce alleged both physical and mental cruelty. The facts which were presented are contained in many volumes of transcript and will not be summarized in detail in this opinion.

Defendant is a physician and plaintiff is a physical therapist. They were married in January 1963. They lived in Park Forest and were both extremely active socially. Defendant operated two clinics, and plaintiff took care of most of the record keeping and the financial work for the clinics and the family. The couple attended many parties and were active in many social and community organizations. Defendant, in particular, was involved intimately with the operation of Prairie State Junior College. Plaintiff took an interest in the activities of defendant and participated in many of her own. The family prospered financially. They built an addition to their home and took numerous vacations and trips together. In November of 1969, defendant began treating' Janice Webb at his clinic. He saw her professionally some 8 to 10 times and testified that he did not see her after May 1970. During this time, defendant testified for Janice Webb in her divorce proceeding in his capacity as a physician.

Plaintiff testified that, beginning about November 1969, defendant spent many nights away from home and often did not return until 3 A.M. or later. She testified that she wrote down on a calendar every night the time of his return, and her lists which were admitted into evidence were very extensive. Defendant explained that some of the absences were due to late meetings involving the various community organizations in which he participated.

A child was born to the parties in January 1970. Plaintiff stated that defendant did not continue the frequent late-night absences from then until he began staying out late again in November of 1973. Plaintiff testified that defendant refused to explain the continuous absences and late returns to the home. At defendant’s insistence, both parties signed what is apparently an addition to a marriage contract in which they agreed that neither party would interfere with, nag or otherwise disturb or bother the professional, social, personal, and civic affairs of the other. Plaintiff also testified that defendant often cut off her money for household expenses, took away her gasoline credit card, let air out of her tires, pushed her out of bed, demeaned her sexual adequacy and commented on her unfavorably in comparison with white women. Plaintiff and defendant are both Negroes. Plaintiff testified that, during this time, she was very nervous and suffered emotional stress, although she did not seek the assistance of a doctor.

On appeal in this court, defendant contends that the finding of the trial court was against the manifest weight of the evidence and that there was inadequate evidence to support the decree. The trial court found that there was no physical cruelty but that there was mental cruelty, arising as a result of the maintenance of the association with Janice Webb, even though the relationship was not adulterous, and by reason of the fact that, during such period of association, defendant frequently stayed away from home at night and refused to explain his absences to his wife. The circumstance that the parties had a young child only IY2 years of age, attended by plaintiff at the time the complaint was filed, together with defendant’s constant late absences, from home, caused the wife-plaintiff considerable distress.

On the basis of the record and the fact that the trial court had ample opportunity to observe the witnesses and determine the credibility of such witnesses, we do not believe that this court would be justified in concluding that the trial court erred in finding there was a mental-cruelty basis for divorce in the record in this cause. Defendant also contends that the court erred in allowing plaintiff to testify that she had a disturbance and nervous tension. Plaintiff testified that she, as a physical therapist, had analyzed her own condition with respect to her marital relationship and recognized her disturbance and nervous tension. Plaintiff merely testified, as any lay person may do, that she suffered from a disturbance and from nervous tension. The trial court could clearly assess the value of this testimony and determine what if any bearing it had upon the issues before the court.

It is also contended that the court erred in refusing to allow the testimony of plaintiff’s obstetrician concerning plaintiff’s physical and mental condition. The obstetrician, Dr. Karasch, was excluded on the ground of physician-patient privilege. Plaintiff points out that the court found against her on the allegations of physical cruelty and found no physical impairment whatsoever, and thus the failure to admit the testimony of Dr. Karasch as to plaintiff’s physical condition could not be prejudicial to defendant. While there may have been error in the refusal to permit the testimony of Dr. Karasch, such error appears to be harmless and nonprejudieial, in view of the voluminous record in the case from which the trial court determined the issue.

Defendant also contends that the court erred in admitting certain of plaintiff’s exhibits as “past recollections recorded.” Plaintiff had testified at the trial that defendant developed a habit of continuously returning home at odd hours in the morning. She recorded the time of his return on the calendar, and these notations were transferred later to pocket calendars. While she could not, solely through her memory, recall all the times and dates of defendant’s late homecomings, she could use the pocket calendars to jog her memory. The calendars were sufficiently shown to be accurate records of the facts therein noted and could be properly admitted in evidence in the bench trial, in view of the issues in the case.

It is further objected that the court erred in not finding a condonation on part of plaintiff in that the parties lived together after the alleged acts complained of. This is tied into the argument that the mental cruelty was limited to the period between November 1969 and May 1970. There is, however, no indication that the trial court so limited the time for its findings, and plaintiff’s record of defendant’s late returns to the home actually extended through June 29, 1971, the day she filed the initial divorce complaint. Plaintiff denied having sexual relations with defendant, and, even if she did have them, this does not show condonation on the facts in this case. (Deahl v. Deahl, 13 Ill.App.3d 150.) It is clear that the affirmative defense of condonation was not adequately shown by defendant in this cause.

A final contention is made by defendant that plaintiff was sufficiently at fault herself to justify denying her a divorce. Defendant contends that plaintiff ignored him and refused to go on trips with him and that she made false allegations in her complaints of adultery, physical cruelty and several types of mental cruelty. Defendant concludes from these assertions that plaintiff was sufficiently at fault to justify denial of her complaint for divorce. The allegations of the complaint in the cause were not shown to have been made as deliberate false accusations. The trial court apparently found that any of the conduct on part of plaintiff, complained of by defendant, was in response to defendant’s mental cruelty and conduct. We note that there was evidence of one instance, after the divorce proceedings had been filed, when defendant apparently pushed her out of bed and may himself have withheld love and affection from plaintiff. Accordingly, we find no support for defendant’s contention that plaintiff’s fault barred her from a finding in her favor on the issue of mental cruelty.

Since the trial court had the opportunity to view the witnesses and to evaluate the credibifity of the witnesses, we do not feel that we would be authorized to reject the court’s finding in the light of the record in this case. The judgment of the Circuit Court of Will County is, therefore, affirmed.

Affirmed.

STOUDER, P. J., and DIXON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert J. Johnson, Defendant-Appellant.
    (No. 73-28;
    Third District
    December 30, 1974.
    James Geis, of State Appellate Defender’s Office, of Ottawa, for appellant.
    James O. Christy, Assistant State’s Attorney, of Peoria, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of tihe court:

This is an appeal from the judgment of the Circuit Court of Peoria County, following a jury trial, in which defendant was found guilty of aggravated battery and sentenced to the penitentiary for the term of not less than 2 nor more than 6 years.

On appeal in this court, defendant contends that the evidence in the cause failed to prove that defendant was guilty beyond a reasonable doubt. It is also contended that the section of the act under which defendant was convicted (111. Rev. Stat. 1971, ch. 38, §12 — 4(a)) is unconstitutional in that there is an improper delegation of legislative authority and, also, that the provision is in violation of equal protection of the laws. An issue challenging the jury panel was withdrawn by defendant.

The issue as to whether the evidence proved defendant guilty beyond a reasonable doubt requires a review of evidence on the issue of identification of defendant Johnson. Two significant witnesses testified for the State. The first witness, Walter Jatkoswki, was employed as a grocery clerk at a Kroger Store on Jefferson Street in Peoria. He testified that on October 19, 1971, he saw a man, whom he identified in the courtroom as the defendant, with another man, having an argument with Leslie Williamson, the manager of the store. Jatkowski said that the argument went on until he went to the office to call the police on the instructions of the manager. He thereafter saw defendant’s companion in the store put a chicken under his coat and run toward the front of the store. Jatkowski pursued this man and, upon reaching the front of the store, he saw that defendant had the chicken at the checkout counter. Jatkowski then got into an argument with defendant as to whether or not he actually paid for the chicken. The argument terminated when Jatkowski told defendant and his companion to leave the store.

Jatkowski returned to his work but a short time later, while helping an elderly lady out of the store with her groceries, he encountered the two individuals who had been in the store and they began an argument in the parking lot next to the store claiming that Jatkowski was prejudiced against them because they were black and because he had falsely accused them of stealing the chicken. The men said they would not permit Jatkowski to return to the store, and as he attempted to return, defendant struck him twice on the face from a position to the side of the other man. Jatkowski stated that he could see the defendant’s face clearly. After Jatkowski was hit from behind several times by defendant’s companion and several more times by defendant himself, he fell to the ground, and from a prone position he saw the defendant and his companion running away from the scene. Jatkowski stated that he then crawled back into the store where Williamson instructed one of the other employees to take him to the hospital, while Williamson called the police. At the hospital it was revealed that Jatkowski had incurred a broken nose and a broken jaw.

When he was cross-examined, Jatkowski stated that he was approximately 2 feet away from defendant while arguing in the store but did not notice any scar on defendant’s face at that time. He did notice a. scar when defendant’s attorney pointed it out at the trial. Jatkowski testified that he also did not notice any speech defect in defendant when they were arguing, but attributed that to the fact that defendant was shouting at him at the time. Thereafter, the defense attorney positioned defendant in the courtroom at approximately the same distance he was at the time the argument occurred, and Jatkowski stated that he then could not see the scar from that distance.

The store manager, Williamson, testified that he noted a young man in the store who appeared to be shoplifting and that when he accosted this young man an argument ensued about whether he was in fact shoplifting. During the argument the young man threatened to “beat him up." During the course of the argument, another man, identified as defendant, joined the young man with whom Williamson was having the argument, and after the argument was terminated, Williamson returned to his office. Five minutes later, he stated, he saw Jatkowski coming into the store, bleeding from the head. He then testified he directed a store employee to take Jatkowski to the hospital. Williamson identified the two men in court and corroborated the testimony of Jatkowski as to the argument and confrontation in the store.

A police officer who appeared at the scene after the incident, testified that Williamson told him that he had not paid attention to the smaller man but that he could identify the taller of the two black men. He did, however, identify the smaller man in court. The defense consisted chiefly of an alibi that defendant had gone fishing with his son. The son did not testify. The alibi witnesses placed him 2 miles from the grocery store. The alibi did not account for the whereabouts of defendant at exactly the time of the battery. The witnesses who testified on behalf of defendant as to the alibi were defendant’s sister, defendant’s wife, and defendant himself.

In this court, defendant contends that the in-court identification which was in conflict with the alibi defense testified to by more than one witness raised a reasonable doubt as a matter of law. He cites a line of cases, notably People v. Gardner, 35 Ill.2d 564 (1966), in support of such proposition. That case does not stand for exactly the principle which is contended for by defendant in this court. In that case, Mr. Justice Schaefer indicated that where a conviction of a defendant rests upon an identification which is doubtful, vague or uncertain, and there is rehable alibi evidence, the conviction would be reversed. The judge, however, indicated that the testimony of a single witness, if it is positive and the witness is credible, is sufficient to convict even though it is contradicted by the accused.

In the cause before us, the identification is not so weak and the alibi so strong that a reasonable doubt is created as a matter of law. While the identification did not specifically cover the scar or certain missing teeth, there was corroborative identification by the store manager of the testimony of the clerk who was the victim of the assault. The facts of the case, therefore, distinguish this case from those cited by defendant since there was clear identification of defendant. The question, therefore, was one for the jury to determine and not for action by the court, on the basis of evidence presented, as a matter of law. The determination of the jury indicated that the jury believed the testimony of the two eyewitnesses who clearly identified the defendant and that such identification was sufficient to sustain the verdict of the jury.

The issue of constitutionality which was raised as to section 12 — 4 (a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, §12 — 4(a)) is one which we have considered recently in the cases of People v. Chambers, 15 Ill.App.3d 23, 303 N.E.2d 24, People v. Williams, 15 Ill.App.3d 294, and People v. Cook, 15 Ill.App.3d 345. We indicated in such cases that under the precedent of People v. Keegan, 52 Ill.2d 147, the aggravated battery provision in the Criminal Code, which provides for a penalty alternatively of imprisonment in a penal institution other than a penitentiary, or in the penitentiary from 1 to 10 years, is a constitutional provision. We will not repeat the detailed analysis which is found in such cases and adhere to the previous opinions announced by this court and herein referred to on such issue.

Since we find no reversible error in this cause, the judgment of the Circuit Court of Peoria County is affirmed.

Affirmed.

STOUDER, P. J., and SCOTT, J., concur.


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard K. Spear, Defendant-Appellant.
    (No. 12289;
    Fourth District
    December 30, 1974.

      David V. Munnis, of Champaign, for appellant.
    James R. Burgess, Jr., State’s Attorney, of Urbana, and Frances Hulin, for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

Defendant was convicted of unlawful manufacture of cannabis following a jury trial and sentenced to 2 to 6 years in the penitentiary. This was the second trial, the previous one having ended in a mistrial. He argues on appeal that he was twice placed in jeopardy by the fact of being tried again, that he was not proved guilty beyond a reasonable doubt, proscribed cross-examination of one of the State’s witnesses, admission into evidence of incompetent evidence, and error in sentencing. With regard to the latter he asserts that the jury made no finding as to the quantity of cannabis involved; thus, he should have received the lowest sentence of many prescribed for cannabis violations.

The mistrial at the first trial was on his motion. This looks like self-invited error and, if so, it generally is of no avail. To get around this impediment, he argues that he was forced to do so because the reasons for aborting the trial were caused by the State in “an attempt to take unfair and improper advantage of the defendant.” What this advantage might be we are not told. Clearly, the State did not comply fully with the order of discovery in advising defendant of an oral statement of his — which, when testified to, was highly prejudicial — “knowledge of or involvement in a crime, a burglary, not before the court.” The court termed this testimony “highly prejudicial” and the mistrial followed on defendant’s motion. Apparently, too, at the first trial the chain of possession witnesses for identification of the marijuana was something less than complete. The necessity of additional witnesses was disclosed and the State moved to add two more to its list. Though defendant does not tell us so exactly, the juxtaposition in his brief of this circumstance together with the testimony of the oral statement of defendant, we take it that we are supposed to infer that the highly prejudicial statement was elicited for purposes of terminating the trial by forcing the defendant to ask for a mistrial. When the court inquired as to the reason for offering this testimony, the State’s reply was that it was a foundation “for something that didn’t materialize.” As we have noted, defendant says that this “something” was the attempt to take unfair advantage of him.

This reasoning seems to us to be somewhat convoluted. It is only surmise, at best, that the State interjected something highly prejudicial knowing that it would trigger a mistrial because defendant simply had to ask for it — i.e., he had no other choice. It is just as reasonable to surmise the contrary. Defendant’s motion for a mistrial related to the failure to disclose his oral statement prior to trial — and this was the basis for the court’s allowance. That the statement was “highly prejudicial,” that defendant’s counsel was somewhat surprised, and had not an opportunity to defend against it, were the reasons for the ruling. True, it was “caused” by the State — but “caused” in the sense only that it forgot to de something. We cannot discern that this “something” was an áttempt to obtain an unfair advantage. Tire cases cited by defendant are not, in our opinion, apposite.

The point as to conviction beyond a reasonable doubt requires a short recital of the evidence. Defendant was arrested after fleeing from a home — not his — which had been raided by the police — city, State and sheriff. In the raid, 15 separate items of marijuana were seized from the attic, living room, kitchen and basement. They ranged from burned cigarette paper to 32 kg. of raw marijuana found in the basement Also seized were some hypodermic needles and LSD. Such material was sent to a laboratory in Chicago for testing — which raises the point of chain of possession, which we will examine shortly. An accomplice, who had pleaded guilty to various charges arising from the search, testified that on August 3 or 5, 1972, he saw defendant and others bring a quantity of marijuana to this particular residence and that it remained there and was seized by the officers on August 16. Apparently, the raw marijuana was processed in the kitchen by drying it in the oven and he testified that Spear was present when such processing took place. Another accomplice — a minor — testified that he and the defendant picked 5 of 10 pounds of marijuana on the day before the raid, placing them in plastic bags and returning them to the residence in question. These were also seized. Defendant was sitting in the living room when the police arrived and the dryer was on in the basement where some of the raw marijuana was located. The first accomplice, who had pleaded guilty to unlawful possession of marijuana, was granted immunity in return for voluntarily giving a statement which incriminated defendant, and the disposition on his plea had not been determined at the time of trial.

If one believes the accomplices, it is hard to see how the argument that there was insufficient proof for conviction can prevail, for, from our short recitation, the facts were certainly there on which a conviction can be sustained. To the argument that their testimony was incredible, we have to say, as always, that such was for the jury and not for the court, much less a reviewing court. No question of law is here presented where we can say that the proof was absent on which to ground this conviction.

Defendant next argues that his cross-examination of one of the accomplices was so limited by the court that an abuse of discretion is present. This is hard to see under the circumstances. As a general rule, the latitude to be allowed in cross-examination rests largely in the discretion of the trial court, and it is only in cases of clear abuse that a reviewing court will interfere at all. (People v. Halteman, 10 Ill.2d 74, 139 N.E.2d 286; People v. Nugara, 39 Ill.2d 482, 236 N.E.2d 693.) The accomplice testified as to events between August 3-5 and August 16, the day of the raid. When attempts were made to go outside of this period, objections thereto were sustained. Defendant argues that such preclusion prevented him from establishing possible facts that might have further shown “bias” on the part of one of the accomplices and render his testimony unbelievable. But we are not pointed out exactly in what particular the cross-examination was limited and as-to the specific details of what questions and what areas of inquiry were prejudicial to him that the court prevented him from pursuing. All we can say is that there was clearly no abuse of discretion in keeping the interrogation within the time frame testified to on direct.

We next come to the chain of possession argument. Eighteen exhibits were admitted into evidence, as to which defendant says there was no continuous chain of custody. These exhibits have to do with the marijuana seized during the raid. In essence, a great many different officers gathered the evidence and subsequently gave it to other officers to transport to the chemist in Chicago and then back again to the chief of police. Conflicts developed in the testimony as to who received it in Chicago, as to what was actually seized and what was identified, exactly when all the exhibits were turned over to the chief and as to what was delivered by the chief to the officers transporting the exhibits for analysis. The chemist had no recollection as to Exhibits 5 through 18 in their “field condition,” but he did at the trial recognize Exhibits 2 through 18. Significantly, various officer-witnesses did identify the material that was taken from the house. And though we might observe that things could have been done differently and better so far as the chain of possession was concerned, the identification at the trial was pretty complete. When we couple this identification with the chain of possession evidence, and put it in context with a complete lack of evidence as to any tampering or substitution, we can only say that these exhibits were properly admitted into evidence. As was said in People v. Hines, 131 Ill.App.2d 638, 645, 267 N.E.2d 696: “The chain of possession was complete and the fact that certain other people had access to the exhibits at various stages of the possession would not affect the admissibility of the exhibit unless there was actual evidence of tampering or substitution” (emphasis added), and in People v. Belousek, 110 Ill.App.2d 442, 448, 249 N.E.2d 693:

“Nothing in the record suggests tampering, alteration or substitution, either intentional or accidental, with the separately wrapped items during this period. [Citation.] Under these circumstances the failure to show who carried the items from the receiving desk of the crime laboratory to Forslev’s laboratory is not a fatal defect in the chain of possession.”

The final point urged has to do with the propriety of the sentence— 2 to 6 years. The verdict returned did not specify any particular weight as to the cannabis involved and the argument is therefore made that only the lesser of the sentences available — 180 days — could be imposed under section 5 of the Cannabis Control Act (Ill. Rev. Stat. 1971, ch. 56%. par. 705). Under this paragraph anyone who manufactures 2.5 grams or less is only subject to 180 days. Defendant argues from People v. Swinson, 406 Ill. 233, 92 N.E.2d 758, that in larceny, where the indictment fails to charge the value of the amount stolen and there is no finding by the jury of value, the only sentence that can be imposed is that fixed for the lesser of two valuations.

Here, with regard to the facts, the total weight was far in excess of 500 grams — in the neighborhood of 42 kg. There was no issue made as to weight or quantity, and, of course, we are dealing with weight and not value as in theft. Where no issue exists as to quantity, we think that no finding thereof is necessary by the jury and that a general verdict, as in this case, will support the penalty imposed. Because there was no contest, there is no factual issue for the jury to decide — thus, no need for a finding. With regard to theft, we might point out that in People v. Wilson, 84 Ill.App.2d 269, 228 N.E.2d 131, and People v. Piehl, 6 Ill.App.3d 296, 285 N.E.2d 612, general verdicts were returned with no specific finding as to value and felony convictions upheld because value greater than $150 was not in issue. If defendant thought an issue was presented, he should have submitted an instruction as to weight. His failure implies a lack of issue in this regard.

The conviction appealed from is affirmed.

Affirmed.

TRAPP, P. J., and KASSERMAN, J., concur.


author: Mr. JUSTICE TRAPP

text:
    Larry L. Stout, Plaintiff-Appellant, v. Orin G. Smith, Defendant-Appellee.
    (No. 12468;
    Fourth District
    December 30, 1974.
    Hugh A. Henry, Jr., of Bloomington, for appellant.
    Dunn, Brady, Goebel, Ulbrich, Morel & Jacob, of Bloomington (Frank M. Brady, of counsel), for appellee.
   Mr. JUSTICE TRAPP

delivered the opinion of the court:

Plaintiff appeals a judgment for defendant entered following a bench trial. The trial court found that plaintiff had failed to sustain his burden of proof that defendant was guilty of negligence which proximately caused plaintiff’s personal injury and property damage.

The automobile driven by defendant struck that of plaintiff in rear as both parties were travelling south in the right-hand lane of a four-lane highway. There is conflicting evidence of the intensity of a snowstorm, plaintiff testifying that it was a “mild snow” in flurries, while all of the other witnesses testified that visibility was near zero and the pavement snow covered.

The collision occurred almost immediately after a tractor-trailer passed both vehicles. In doing so, it threw up snow clouds and snow blew from the top of the trailer so as to obscure the vision of each party for some seconds. The issue of fact here is whether such occurrences caused plaintiff to suddenly slow his car by applying the brakes so that defendant drove into it. The court stated that it did not accept plaintiff’s testimony at the trial that he did not apply his brakes or slow his car suddenly. Plaintiff’s credibility was tested by the testimony of a State trooper and of the defendant that plaintiff had made contrary statements at the scene. The court also concluded that the evidence showed that defendant was driving at a reasonable speed and slowed such speed as the trailer was passing.

The issues and the credibility of the witnesses were for the trier of the fact. We find nothing in tire record which shows such verdict as contrary to the manifest weight of the evidence. Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 226 N.E.2d 624.

The judgment is affirmed.

Affirmed.

SMITH, J., and SIMKINS, P. J., concur.


author: Mr. PRESIDING JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Herman Taliaferro, Defendant-Appellant.
    (No. 12332;
    Fourth District
    December 30, 1974.

      Frederick P. Erickson, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur (Robert I. Wrigley, Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SMITH

delivered the opinion of the court:

Defendant herein was charged with driving under the influence of an intoxicating liquor, leaving the place of an accident, making an improper left turn and other offenses resulting from an automobile collision. After a jury trial, the defendant was convicted on all counts and sentenced to 6 months. This appeal followed. Three errors were alleged: (1) failure to prove the defendant guilty beyond a reasonable doubt; (2) prejudicial remarks in the opening statement, and (3) an excessive sentence.

The facts reveal that about 8:15 P.M. on August 19, 1972, in Decatur, Illinois, a Donald Jensen was traveling west on Decatur Street. He approached an intersection and stopped at a stop sign behind another vehicle. A third vehicle approached the intersection traveling south and made a left turn onto Decatur Street. When making the turn, the driver stopped and went over the curb onto the sidewalk and then completing the turn, his vehicle hit and glanced off the rear of Jensen’s automobile. This vehicle then proceeded east without stopping. The driver was described as a Negro male with medium hair and about 30 years of age. He was alone in the vehicle. The car was described as light colored, and Jensen thought the color was green. He stated that the color of some paint left on his car was darker than blue; he thought it was green but he was not sure. Jensen’s vehicle was blue.

This incident was reported to the police and a hit-and-run accident report was filed. Subsequent investigation turned up a 1963 green-over-white Ford parked at a 30-degree angle in a driveway with its lights on but the engine off. Defendant was found asleep in the vehicle, lying across the seat with his head down on the right front seat with his feet hanging out the driver’s door. He exhibited strong signs of intoxication. The defendant was frisked and placed in the paddy wagon; no keys were found either on him or in the car.

The arresting officer testified that there was some damage to the left front of this vehicle and remembered that there was some dark blue paint on the left front bumper or fender. He also testified that he found damage to the left rear of the Jensen vehicle and particles of green paint in that area. The defendant was given a breathanalyzer test and the results showed the defendant to be intoxicated.

In cases of this nature, the burden upon the State is among other things to prove beyond a reasonable doubt that the defendant was, in fact, the driver of the vehicle, that he was intoxicated and that the vehicle herein was the one that collided with the Jensen vehicle. (People v. Miller, 23 Ill.App.2d 352, 163 N.E.2d 206.) GuHt may be established by circumstantial evidence, and frequently circumstantial evidence can and does have more probative value than direct eyewitness identification. To support a conviction, it is essential that the facts produced be not only consistent with defendant’s guilt but they must be inconsistent with any reasonable hypothesis of innocence. (People v. Branion, 47 Ill.2d 70, 265 N.E.2d 1; People v. Mundorf, 97 Ill.App.2d 130, 239 N.E.2d 690.) The jury, however, does not have to disregard the reasonable inferences that flow from the evidence before it. (People v. Chamberlain, 5 Ill.App.3d 235, 282 N.E.2d 784.) When, however, the record reveals a reasonable doubt as to defendant’s guilt, the appellate court must reverse. People v. Varley, 8 Ill.App.3d 657, 290 N.E.2d 346.

The standard of proof required has not been met in this case. Perhaps a tight circumstantial evidence case could have been made, but it was not. The identification of the vehicle was vague. Jensen thought the paint of the vehicle was green, but he was not sure; no police officer or other person identified paint scrappings or matched them to the car in which the defendant was found. Jensen was not shown any photographs of the vehicle to identify. There was no testimony as to the length of time between when the vehicle was found and when the accident had occurred, nor was there testimony as to the distance between where the accident occurred and where the defendant was arrested. Similarly, the identification of the defendant as the driver of the vehicle is totally lacking. The automobile was not running at the time the defendant was arrested. No keys were found in his pockets nor in the vehicle. The defendant was asleep at the time he was arrested, and there is no testimony as to the time between the accident and defendant’s arrest. No one identified him as the driver of the vehicle nor, in fact, that he had ever driven the' vehicle. No fingerprints were taken from the steering wheel to show that defendant even had used it.

The most that the evidence therefore showed was that a vehicle similar to the one defendant was found asleep in sometime in the past at some unknown distance from where the vehicle was parked had collided with the Jensen vehicle. To say with certainty that this was the vehicle involved in the accident and that defendant was the driver under these facts is to rest the conviction upon surmise and conjecture and not upon proper or reasonable inferences inevitably drawn from the web of circumstantial evidence. (People v. Striker, 3 Ill.App.3d 464, 274 N.E.2d 881; People v. Rutzen, 100 Ill.App.2d 323, 241 N.E.2d 609.) For these reasons this conviction cannot stand.

Because of the holding of this comt as aforesaid, it is not necessary to discuss the other two aUeged errors.

Accordingly, this cause is reversed and remanded to the trial court with directions to enter judgment for defendant.

Reversed and remanded.

CRAVEN and CLARK, JJ., concur.