author: Mr. PRESIDING JUSTICE THOMAS J. MORAN Mr. PRESIDING JUSTICE THOMAS J. MORAN Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Pepper Keating, Defendant-Appellant.
    (No. 70-189;
    Second District
    — Original Opinion, May 24, 1971;
    Supplemental Opinion, September 14, 1971;
    Additional Supplemental Opinion, December 21, 1971.
    E. Roger Horsky, and Ralph Ruebner, of Defender Project, of Elgin, for appellant.

      William Ketcham, States Attorney, of Geneva, (W. Ben Morgan, and Leo Wotan, Jr., Assistant State’s Attorneys, of Elgin, of counsel,) for the People.
   ORIGINAL OPINION

Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

A jury found the defendant guilty of the possession and sale of narcotics; only the latter conviction is appealed.

Defendant contends that (1) the court erred in denying his pretrial motion for a list of last known residence addresses of state witnesses when there was no showing that the lives of the witnesses or their families had been threatened by defendant; (2) the court erred in refusing to instruct the jury on the issue of entrapment; (3) the court erred in failing to instruct the jury that the sale had to be knowingly made; and (4) the sentence imposed was excessive and tantamount to cruel and unusual punishment.

At the time of the crime, defendant was 17 years old, single, and gainfully employed. His parents were divorced and he had lived with several different families. He had been previously convicted for contributing to the delinquency of a minor for which he served a two week sentence.

On August 12, 1969, two Illinois Bureau of Investigation agents and an Aurora policeman agreed to use an informer in an attempt to purchase marijuana from the defendant. One IBI investigator, shabbily attired and wearing a moustache, drove an unmarked car to the informer’s house. The two had not previously met. They drove to defendant’s house, parked across the street and the informer went to the door. Moments later defendant emerged carrying a coffee can. Defendant and the informer entered the car and defendant directed the agent to pull around the corner. There the agent was shown the 169 grams of marijuana contained in the can, gave defendant $100 in prerecorded currency in exchange for the can and returned defendant and the informer to their homes.

The entire transaction was corroborated by the second IBI agent and the Aurora policeman who had followed in another unmarked car. The informer did not testify at the trial because he was in jail in another State at that time.

Prior to trial, defendant moved for the production of a list of the last known residence addresses of the prosecution witnesses. The record discloses the following disposition of the motion:

“Mr. Ellsworth: I have, your Honor, this morning filed with the Cleric of the Court and hand to the States Attorney my fist for last-known addresses of witnesses.

The Court: I will give you the last-known addresses as of their last place of employment. Draft such an order. Draft such an order.

Are you ready for trial?”

As can be seen, no argument was had and the draft order stated, “denied to the extent that People of the State of 111. are required hereby to produce last known business address only.” The State failed to produce the business addresses, but the record shows that defendant made no attempt to enforce this order. During cross-examination the witnesses were asked no questions about their addresses or backgrounds; no attack on their credibility was made.

Defendant did not testify; however, in his opening statement, defense counsel made a judicial admission that defendant was guilty of possession of marijuana.

After his request for an instruction on entrapment had been denied, counsel, in closing argument, reminded the jury that each of them had stated during voir dire that, “in a proper case,” they could find defend-,v ant guilty of the sale of narcotics. Counsel then argued that the statute contemplated punishing “the trafficker in drugs who plays [sic] upon the children in the school yard,” not defendant. He concluded by asldng the jury to hold defendant guilty of possession and requesting them to find that this was not a proper case for a verdict of guilty of the sale of narcotics.

In the post-trial motion, defendant renewed his objection to the denial of his pretrial motion and objected to the court’s failure to give the entrapment instruction.

While this appeal was pending, defendant filed a supplemental brief raising, for the first time, an additional contention for reversal. The contention is that the trial court failed to instruct the jury that knowledge was an essential element of the crime charged. Defendant did not offer such an instruction nor did he object because the State’s instruction, relating to the burden of proof, failed to contain the element of knowledge.

■ At the start, we are faced with the question of whether the denial of the pre-trial motion, requesting the residence addresses of the State’s witnesses, affected the balance of the proceedings sufficiently to prejudice the defendant and thereby constitute reversible error.

Section 114 — 9(a) of the Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 9(a)) states that “On motion of the defendant the court shall order the State to furnish the defense with a list of prosecution witnesses and their last known addresses.”

In People v. Gonzales (1970), 120 Ill.App.2d 406, app. den., 43 Ill.2d 397, we interpreted the statute to require the production of residence addresses and based our opinion on Smith v. Illinois (1968), 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748 and Alford v. United States (1931), 282 U.S. 687, 75 L.Ed.624, 51 S.Ct. 218. (It should be noted that while the opinions in Smith and Alford preceded the denial of the pretrial motion herein, our opinion in Gonzales was filed after the pretrial motion but prior to trial.)

We reaffirm our position that, upon pretrial motion by the defendant, the State is required to produce the residence addresses of its witness in order that out-of-court investigation may be had. One of the exceptions, not present in the instant case, is where the record discloses the witness’s personal safety to be in jeopardy.

We have again reviewed the Smith and Alford opinions and later cases interpreting and further limiting their application.

In United States v. Teller (7th Cir. 1969), 412 F.2d 374, 379-380, it was held:

“* * * Smith does not per se require a new trial merely because the district court sustained an objection to a question seeking to elicit Washington’s address. Smith requires reversal only where the lack of a witness’s name and address denies a defendant an opportunity to effectively cross-examine a witness. When this happens, a defendant is denied his Sixth Amendment right to confrontation. However, the initial question is whether the defendant was denied effective cross-examination. It is clear from the recital of Washington’s testimony that the district court did not unduly limit cross-examination of Washington’s past record.”

See also, United States v. Lawler (7th Cir. 1969), 413 F.2d 622, 627.

Illinois courts have found the right of cross-examination in Smith to be limited to “cases involving convictions essentially dependent on the credibility of the witness being cross-examined.” People v. Shaw (1969), 117 Ill.App.2d 16, 20.

Another limitation was stated in The People v. Finch (1970), 47 Ill.2d 425. There, during cross-examination, the witness was asked his address, the trial court directed that it be given to defense counsel for his exclusive use, and counsel accepted the information in this manner. On appeal, the court said, at page 436:

“° 6 * In addition, it can be said that the absence of any objection by counsel at that time under the circumstances operated as a waiver of the right to obtain unconditionally the home address of the witness. One certainly has the right to waive cross-examination and just as certainly he can. waive an aid to cross-examination. We do not consider there has been a showing of reversible error.”

In the instant case it is argued that to require the defendant to await trial for disclosure of residence addresses of State’s witnesses would stifle out-of-court investigation to obtain facts for impeachment purposes and thereby emasculate his right to effective cross-examination. We agree and find that the denial was error. However, we conclude that the error was not prejudicial in this instance and therefore, not reversible.

In United States v. Marti (2nd Cir. 1970), 421 F.2d 1263, the government witness under cross-examination was asked where he lived and responded, “In Queens.” When asked where in Queens, the prosecution requested a side bar conference during which he volunteered to give defense counsel the address but not disclose the same in open court. Cross-examination continued and defense counsel did not pursue the matter in his questioning nor did he request the prosecution to privately disclose the witness’s address. On review, the Court, after discussing the Smith and Alford cases, stated at page 1266:

* * Here, the inability to elicit Pelletier’s address on cross-examination cannot have prejudiced any investigation of Pelletier, either in or out of court. Cf. United States v. Bennett, 409 F.2d 888 (2nd Cir. 1969). No claim is made here that any investigation of Pelletier would have been somehow less thorough if only counsel knew his address (as the prosecutor offered) then it would have been if both counsel and appellants knew it (as they would have if Pelletier gave his address in open court). In fact, in view of counsel’s failure to ask the prosecutor for the address privately, it is unlikely the defense was interested in the address for investigative purposes.”

The facts in the case at bar disclose that the pretrial motion was denied perfunctorily, that defendant made no request for argument, that no attempt was made to obtain the business addresses of the witnesses which the court decreed to be given, and that during cross-examination the defendant never inquired about the resident addresses of any of the State’s witnesses nor in any manner attempted to delve into their background for impeachment purposes. Instead, the questioning was directed toward clarification of the facts of the transaction involved. Under these circumstances, we find it is unlikely that the defense was interested in the addresses for investigative purposes, United States v. Marti, supra, and hold that the right to pretrial knowledge of residence addresses was waived by defendant’s conduct, The People v. Finch, supra.

Defendant next asserts that his entrapment instruction should have been given. In support of his argument, he points to counsel’s admission that his client was guilty of possession of marijuana and claims that sufficient facts were brought out, on direct and cross-examination of the State’s witnesses, to permit the instruction. Defendant specifically points to the following: a shabbily dressed undercover agent was used; he drove an unmarked vehicle; the informer knew defendant; prerecorded money was used; and no evidence showed defendant’s involvement in any prior sales.

The definition of entrapment is set forth in section 7 — 12 of the Criminal Code, (Ill. Rev. Stat. 1969, ch. 38, par. 7 — 12):

“A person is not guilty of an offense if his conduct is incited or induced by a public officer or employee, or agent of either, for the purpose of obtaining evidence for the prosecution of such person. However, this Section is inapplicable if a public officer or employee, or agent of either, merely affords to such person the opportunity or facility for committing an offense in furtherance of a criminal purpose which such person has originated.”

The essence of the defense is that the criminal intent arose in the mind of the law enforcement officer, not in the mind of the accused. (People v. Outten (1958), 13 Ill.2d 21, 23.) Entrapment does not occur where the police merely afford an opportunity to commit the act or purposely aid or encourage the accused. (People v. Hall (1962), 25 Ill.2d 297, 300.) The nefarious business of the sale of narcotics is not a game governed by rules of gentlemanly conduct and fair play. Indeed, it dictates that tactics such as disguise, unmarked cars, informers, and controlled sales be employed by the police.

While we agree with defendant that an instruction regarding a defense should be given where there is slight evidence upon a specific theory (People v. Kalpak (1957), 10 Ill.2d 411, 425; People v. Sweeney (1969), 114 Ill.App.2d 81, 89) we do not agree that there is such evidence in this case. In fact, the record is devoid of evidence of entrapment. No one testified describing the methods used by the informer to get defendant to agree to the sale. Defendant was ready and waiting when the auto arrived. He entered the car and, with no persuasion by the informer or agent, directed that it be moved to a different location. He readily accepted the money. The uncontroverted testimony of the agent was that he had not previously met or talked with either defendant or the informer.

The instruction was properly refused. People v. Cash (1963), 26 Ill.2d 595, 598.

Although we have not found it necessary to base our decision on it, we note that it is questionable whether the entrapment instruction should have been given for another reason. Denial of the commission of the acts constituting the offense is inconsistent with the defense of entrapment. (People v. Realmo (1963), 28 Ill.2d 510, 512.) Here, defense counsel admitted his client was guilty of possession of narcotics, but made no such admission concerning sale.

Defendant relies on People v. Kuykendall (1970), 120 Ill.App.2d 225; People v. Lewis (1969), 112 Ill.App.2d 1; and People v. Davis (1966), 74 Ill.App.2d 450, in support of his claim that the omission of the element of scienter was a fundamental error which required reversal. However, we feel the case at hand to be governed by People v. Truelock (1966), 35 Ill.2d 189; and People v. Jones (1st Dist. 1971), No. 54137.

The factual situation in Jones was almost identical to this case. The court said, and we agree, that when no objection is made to the omission of the element of knowledge, error is waived. Even if we were to accept defendant’s argument that an error was made and properly raised, the error would still not permit reversal. In Truelock, the word “knowingly” was omitted from the instruction. The reviewing court agreed that the instruction was erroneous, but said, at page 192:

“* # * However, we do not think that the error in this case requires reversal. ‘Even though error may have been committed in giving or refusing instructions it will not always justify reversal when the evidence of defendant’s guilt is so clear and convincing that the jury could not reasonably have found him not guilty.’ [Citations omitted.] In the present case, the evidence of the defendant’s knowledge of the presence of narcotics is clear and convincing. We do not think that a jury could reasonably have found the defendant not guilty in this case, and therefore, reversal is not justified.”

Similarly, reversal here is not justified. When defendant admitted being guilty of possession of marijuana, he admitted that he knew the substance sold was marijuana. See also, People v. Chupich (1st Dist., 1971), No. 52504, (Ill.App.2d); People v. Cazaux (1969), 119 Ill.App.2d II, 17-18.

Defendant’s argument that his 10-20 year sentence is unconstitutional is answered by People v. Calcaterra, 33 Ill.2d 541, 548, cert denied (1965, 385 U.S. 7, 87 S.Ct. 65, 17 L.Ed.2d 8 and People v. Gonzales, 25 Ill.2d 235, cert, denied (1962), 372 U.S. 932, 9 L.Ed.2d 728, 83 S.Ct. 740. Gonzales held that the mandatory ten year minimum for a first offender in a narcotics sale case was not unconstitutionally disproportionate to the nature of the offense. Calcaterra held that a penalty within the maximum imposed by the legislature is not cruel and unusual punishment.

However, defendant also requests that this court invoke its power to reduce sentences in appropriate cases. We have made a careful examination of the record to see if the cause is a proper one for the reduction of the sentence. Defendant’s background, and the nature of the crime as revealed by this search, has been set forth above. These facts, combined with the fact that the State’s Attorney recommended a sentence of ten years to ten years and one day, convince us the the penalty imposed is excessive. Accordingly, the maximum sentence is reduced to eleven years.

Judgment, as modified, affirmed.

SEIDENFELD and GUILD, JJ., concur.

SUPPLEMENTAL OPINION ON REHEARING

Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant, after filing of the original opinion herein, filed a petition for rehearing which was denied by this Court. Thereafter, before the issuance of a mandate and before the expiration of the time allowed for a petition to appeal to the Supreme Court, a motion for reconsideration of our denial was filed upon which oral arguments were had. Subsequently, we vacated the order denying the petition for rehearing.

The basis for the motion is that on August 16, 1971, House Bill No. 788, as amended, entitled the “Cannabis Control Act,” was enacted into law by the Governor. On the same date, House Bill No. 787, as amended, entitled “Illinois Controlled Substance Act,” was also enacted into law by the Governor’s signature. By this latter Act, the “Uniform Narcotic Drug Act,” under which the defendant herein was convicted, was repealed and replaced by the above referred to enactment, the Cannabis Control Act.

Section 18 of the Act provides:

“Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted would be a violation of this Act, and has not reached the sentencing stage or a final adjudication, then for pmposes of penalty the penalties under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” (Emphasis added.)

Under the new Act, the sale of 169 grams of marijuana (of which the defendant was guilty) is punishable, on the first conviction, by imprisonment in the penitentiary from one to four years. (Section 5(d).)

The motion of defendant requests, in the alternative, this Court to reduce his sentence to a term of one to four years, grant him probation or order bis immediate release. This motion was consolidated for the purpose of oral argument with a like motion in the case of People v. McCloskey, supra at 892.

We hereby adopt, for the purposes of disposition of the motion herein, the supplemental opinion filed today in the case of People v. McCloskey, supra at 892.

We therefore adhere to our original opinion in so far as affirming the judgment of conviction but remand the case and direct that, within 15 days of the filing of this supplemental opinion, the defendant be brought before the trial court and a hearing be had upon the motion and objections thereto (which are hereby transferred); and further, that within 15 days of conclusion of said hearing, the trial court is to certify to this Court the evidence taken, together with the judgment entered.

Judgment affirmed in part; cause remanded with directions.

This court retains jurisdiction for further review, if necessary.

SEIDENFELD and GUILD, JJ„ concur.

ADDITIONAL SUPPLEMENTAL OPINION

Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The conviction in this case was affirmed and the matter remanded for the trial court to conduct a hearing (under the provisions of the “Cannabis Control Act”) and report its findings to this Court.

In view, however, of People v. McCabe, Gen. No. 42674, filed October 15, 1971, rehearing denied November 24, 1971, 49 Ill.2d 338 (1971); and People v. Hudson, Gen. No. 43994, filed November 30, 1971, 50 Ill.2d 1, there is no necessity for a hearing under the “Cannabis Control Act.”

The judgment of the trial court is therefore reversed.

Judgment reversed.

SEIDENFELD and GUILD, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Earl McCloskey, Defendant-Appellee.
    (No. 70-190;
    Second District
    — Original Opinion, May 24, 1971;
    Supplemental Opinion, September 14, 1971;
    Additional Supplemental Opinion, December 21, 1971.

      E. Roger Horsky and Ralph Ruebner, of Defender Project, of Elgin, for appellant.
    William Ketcham, State’s Attorney, of Geneva, (W. Ben Morgan, and Leo Wotan, Jr., Assistant State’s Attorneys, of Elgin, of counsel,) for the People.
   ORIGINAL OPINION

Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant was convicted of the possession and sale of narcotics. On appeal, he contends that (1) the court erred in refusing to permit him to elicit a witness’ place of residence on cross-examination; (2) certain testimony was admitted without a proper admonishment to the jury; (3) the court improperly refused defendant’s entrapment instruction; (4) the court permitted the prosecutor to make a prejudicial statement in his closing argument; (5) the court failed to instruct the jury on the mental state required for conviction; and (6) the sentence imposed is excessive and tantamount to cruel and unusual punishment.

Three Illinois Bureau of Investigation agents and an Aurora policeman conducted a controlled purchase of marijuana from defendant. One agent drove an unmarked automobile to defendant’s place of employment. There, the agent, who used the name “Steve” and who was shabbily dressed and wearing a goatee, met a man named Dormer from whom he had previously purchased narcotics. This man was unaware of “Steve’s” identity. Defendant, who was unknown to the agent, then arrived. Dormer refused to introduce the two. All three left in the agent’s car and drove to a supermarket parking lot where the agent gave Dormer $50 in pre-recorded funds. Dormer added $10 of his own and handed the money to defendant who left the vehicle, disappeared from sight, and returned shortly with two bags of marijuana. The agent complained that he had not received $50 worth of the narcotic; defendant agreed, again left the automobile and came back with more marijuana. The three returned to the factory and separated.

The other two IBI agents and the Aurora policeman had followed the undercover agent to the factory. When “Steve”, Dormer, and defendant left the factory to obtain the marijuana, one IBI agent and the Aurora policeman followed. The other IBI agent, Pariser, remained near the factory. Agent Pariser s only other connection with the case was that he witnessed the serial numbers of the pre-recorded money which was never recovered.

During its case-in-chief, the State introduced the testimony of the three IBI agents and the Aurora policeman, Agent Pariser being the last to testify. The defendant did not cross-examine the Aurora policeman or the IBI agent who followed the defendant to the parking lot where the transaction took place. He did examine the IBI agent who' made the purchase, but at no time did he request his home address. When Pariser was offered for examination, he was asked to spell his last name, his first name, whether it was his real name and then he was asked his residence address. The State’s objection to the last question was sustained. Defendant moved for a mistrial based upon Smith v. Illinois (1968), 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748, and People v. Gonzales (1970), 120 Ill.App.2d 406; app. den. 43 Ill.2d 397. This motion was denied.

Without the presence of the jury, the State attempted to make a record concerning the personal safety of Pariser. Suffice to say that the record on this point was insufficient and will not be considered in determination of the appeal.

Defendant’s first contention is based upon the Smith case. There the Court, at pp. 130-131, stated:

“* * * [Ojnly this witness and the petitioner testified to the crucial events inside the restaurant, and the petitioner’s version of those events was entirely different. The only real question at the trial, therefore, was the relative credibility of the petitioner and this prosecution witness. * * *
In the present case there was not, to be sure, a complete denial of all right of cross-examination. But the petitioner was denied the right to ask the principal prosecution witness either his name or where he lived, although the witness admitted that the name he had first given was false. Yet when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness’ name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.”

Subsequent Federal and Illinois cases have considered Smith. In United States v. Teller (7thCir. 1969), 412 F.2d 374, 380, the witness, Washington, during cross-examination, was asked “his present address”; the government objected and the objection was sustained by the court. On appeal, defense argued that failure to give the present address was a flagrant abuse of his right to cross-examination, even though the witness testified that he was staying at a motel at the government’s expense at the time of trial. He further testified to where he lived 4 months before trial, to all of his past history on the use of narcotics, to living with a woman and to burglary and arson convictions. The court said:

« # We think that neither Alford v. United States, 282 U.S. 687, 75 L.Ed. 624, 51 S.Ct. 218 nor Smith v. Illinois, 390 U.S. 129, 19 L.Ed.2d 956, 88 S.Ct. 748 * * * requires a reversal of this conviction. Smith does not per se require a new trial merely because the district court sustained an objection to a question seeking to elicit Washington’s address. Smith requires a reversal only where the lack of a witness’s name and address denies the defendant an opportunity to effectively cross-examine a witness. When this happens, a defendant is denied his Sixth Amendment right to confrontation. However, the initial question is whether the defendant was denied effective cross-examination. It is clear from the recital of Washington’s testimony that the district court did not unduly limit cross-examination of Washington’s past record.”

Similarly, United States v. Lawler (7th Cir. 1969), 413 F.2d 622, 627; United States v. Lee (7th Cir. 1969), 413 F.2d 910, 915; and United States v. Marti, (2d Cir. 1970), 421 F.2d 1263, 1265-1266, interpret Smith as requiring reversal where there is a prejudicial denial of effective cross-examination of a witness whose credibility is in question.

The crux of Smith was the informer’s credibility versus defendant’s. In the case at bar, the contribution of agent Pariser’s testimony was minute. Pariser remained at the plant and saw absolutely no part of the sale. The prerecorded money he witnessed was apparently not recovered and not introduced at the trial. In this light, we find no prejudicial denial of effective cross-examination of a witness whose credibility is in issue.

There is no merit to defendant’s argument that evidence of subsequent offenses was admitted without the jury having been admonished that such evidence could only be considered for the purpose of identifying defendant. We do not deem it to be of value to reproduce verbatim the purportedly objectionable testimony; it is sufficient to say that in the various instances, either no reference was made to criminal conduct, no objection was made by defendant, or, upon objection, the testimony was stricken.

Defendant’s contention that the tendered instruction on entrapment should have been given is also without merit. Instructions are properly given on very slight evidence regarding a theory. (People v. Kalpak (1957), 10 Ill.2d 411, 425.) Entrapment arises when the defendant commits a crime which he would not have committed, but for the actions of the authorities. The intent that a crime be committed must arise in the mind of the police, not the accused. It is proper for the police to provide opportunity for the crime to be committed and to use artifice to catch the criminal. People v. Outten (1958), 13 Ill.2d 21, 23-24.

We find this case barren of evidence of entrapment. Dormer, the go between, had no idea “Steve” was an undercover agent; “Steve” had never met or heard of defendant; there was no testimony of Dormer’s conversation with defendant; and, finally, defendant readily took part in the crime, returned for more marijuana and exhibited a working knowledge of the narcotics trade. The sole indication of entrapment was the self-serving statement of defendant that, on previous occasions, Dormer had asked for narcotics for a man named Steve. This statement, without any connection to the agent, does not constitute “very slight evidence.”

Defendant claims that the following statement, made without objection by defense counsel, requires reversal:

“You heard his [defendant’s] testimony on the witness stand that he didn’t know — he didn’t know where he got this marijuana, that he had his sunglasses on. I submit to you that we witnessed perjury today in that statement made by that defendant from that chair right there.”

Defendant cites People v. Weinstein (1966), 35 Ill.2d 467; People v. Provo (1951), 409 Ill. 63; People v. Hopkins (1970), 124 Ill.App.2d 415; and American Bar Association, Standards Relating to the Prosecution Function and the Defense Function, Sec. 5.8 (Tentative Draft March, 1970), which hold that comments on the falsity of the testimony are unprofessional conduct. According to defendant, these are authorities for the proposition that this quoted statement was an error of a nature requiring reversal even though no objection was made in the trial court.

While the standard referred to above, with which we agree, holds that such a remark is improper, under Illinois law no reversible error was made. In People v. Weaver (1959), 18 Ill.2d 108, the prosecutor said, “[L]adies and gentlemen, on that testimony of John Alfred Weaver I have never heard such lying in all my life.” In People v. Zayas (1968), 102 Ill.App.2d 166, the State’s Attorney argued, “the only thing that I can understand is how it could be so diametricaUy opposed is that the defendant is completely perjuring himself and made up the whole story.” In both cases the court found the remarks not to be prejudicial. Accordingly, here, we conclude no reversible error occurred. See also, People v. Sinclair (1963), 27 Ill.2d 505; People v. Winstead (1967), 90 Ill.App.2d 167.

In a supplemental brief, identical to the one filed in People o. Keating, Gen. No. 70-189, ante at — , defense counsel contends error in the omission of the element of knowledge from any of the instructions. This point was not raised at any time in the trial court. Additionally, during closing argument counsel admitted defendant’s guilt in the possession of marijuana. Therefore, we adopt in toto, our remarks on this point set forth in Keating, filed this date.

Finally, defendant contends that his 10 to 25 year sentence is excessive and tantamount to cruel and unusual punishment. A sentence within the maximum and minimum set by tire legislature cannot be considered cruel and unusual. People v. Calcaterra (1966), 33 Ill.2d 541, 548, cert, denied, 385 U.S. 7, 17 L.Ed.2d 8, 87 S.Ct. 65 concerns a maximum sentence and People v. Gonzales (1963), 25 Ill. 235, cert, denied, 372 U.S. 932, 9 L.Ed.2d 728, 83 S.Ct. 740, relates to the minimum sentence prescribed for the offense herein.

In appropriate cases, this court is empowered to reduce the sentence imposed by the trial court. Herein, the defendant, 19 years old and single, was shown to be familiar with crime, yet after hearings in aggravation and mitigation, the State’s Attorney recommended a term of 10 years to 10 years and a day. While the trial court need not heed such recommendation, this court will take the same into consideration, along with the facts of the case, when contemplating a reduction of sentence.

We are of the opinion that in this instance, justice will best be served by reducing defendant’s maximum sentence to 15 years.

Judgment affirmed as modified.

SEIDENFELD and GUILD, JJ., concur.

SUPPLEMENTAL OPINION ON REHEARING

Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The defendant, after filing of the original opinion herein, filed a petition for rehearing which was denied by this Court. Thereafter, before the issuance of a mandate and before the expiration of the time allowed for a petition to appeal to the Supreme Court, a motion for reconsideration of our denial was filed upon which oral arguments were had. Subsequently, we vacated the order denying the petition for rehearing.

The basis for the motion is that on August 16, 1971, House Bill No. 788, as amended, entitled the “Cannabis Control Act,” was enacted into law by the Governor. On the same date, House Bill No. 787, as amended, entitled “Illinois Controlled Substance Act,” was also enacted into law by the Governors signature. By this latter Act, the “Uniform Narcotic Drug Act,” under which the defendant herein was convicted, was repealed and replaced by the above referred to enactment, the Cannabis Control Act.

Section 18 of the Act provides:

“Prosecution for any violation of law occurring prior to the effective date of this Act is not affected or abated by this Act. If the offense being prosecuted would be a violation of this Act, and has not reached the sentencing stage or a final adjudication, then for purposes of penalty the penalties under this Act apply if they are less than under the prior law upon which the prosecution was commenced.” (Emphasis added.)

Under the new Act, the sale of 26.4 grams of marijuana (of which the defendant was guilty) is punishable, on the first conviction, by imprisonment in a penal institution other than the penitentiary for not more than one year or in the penitentiary for a period from one to three years. Section 5(c).

During oral argument, the State claimed that the denial of the petition for rehearing is a final adjudication within the meaning of section 18 and further that this Court was without jurisdiction to reconsider such denial.

When does this Court lose jurisdiction to consider a matter before it? A trial court, under ordinary circumstances, loses jurisdiction of a final order entered upon the passing of 30 days (Ill. Rev. Stat. 1969, ch. 110, pars. 50(5), 68.1(3), 68.3(1); Pape v. Dept. of Revenue, (1968), 40 Ill.2d 442, 449; Chicago Rawhide Mfg. Co. v. Industrial Com. (1966), 35 Ill.2d 595, 597); however, within that 30 days it retains the inherent power to vacate any of its judgments upon good cause shown. Trojan v. Marquette Nat. Bank (1967), 88 Ill.App.2d 428, 436.

We are of the opinion that a reviewing court in Illinois is divested of jurisdiction in a cause before it when its mandate issues to a lower court (thereby restoring jurisdiction in that court) or when a petition for leave to appeal from the appellate court to the Illinois Supreme Court has been allowed or when a petition for a leave to appeal or certiorari to the United States Supreme Court has been granted (thereby passing jurisdiction to the higher court). At the time of filing of the motion herein, this Court’s mandate had not issued and the time for filing a petition for leave to appeal had not expired. We therefore conclude that we have jurisdiction to entertain the motion presented.

When, generally, does a judgment become a final adjudication?

There are many cases defining what constitutes a final judgment for the purposes of appeal, but our- research has not disclosed an Illinois case which squarely passes upon our specific inquiry here involved.

In Rubin v. Kohn (1931), 344 Ill. 166, 172, the Court employed language appropriate here when it stated:

“The affirmance of the decree by the Appellate Court and the denial by this court of a writ of certiorari for a further review of the record made the decree a final adjudication of the rights of the parties.”

See also, 2760 Milwaukee Ave. Bldg. Corp. v. Hosiery Co. (1938), 298 Ill.App 151, 159.

Under the circumstances here involved, we conclude that from the viewpoint of the court rendering its decision the judgment becomes a final adjudication when that court loses jurisdiction to alter such judgment and, from the viewpoint of the parties involved, the judgment becomes a final adjudication when their rights of appeal have been exhausted. We therefore hold that in absence of the issuance of our mandate or leave to appeal having been granted our original denial of the petition for rehearing was not a final adjudication affecting defendant’s motion for relief under the new enactment.

His motion alternatively requests this Court to reduce his sentence to a term of 1-3 years, grant him probation or order his immediate release.

Section 1.01 of the Act entitled “Construction of Statutes” (Ill. Rev. Stat. 1969, ch. 131, par. 1, et seq.) provides that all general provisions, terms, phrases and expressions of an enactment shall be liberally construed so that the true intent and meaning of the General Assembly may be carried out. Section 4 provides:

“No new law shall be construed to repeal a former law, whether such former law is expressly repealed or not, as to any offense committed against the former law, or as to any act done, any penalty * * * incurred, * # # save only that the proceedings thereafter shall conform, so far as practicable to the laws in force at the time of such proceedings. If any penalty, * * * or punishment be mitigated by any provisions of a new law, such provision may, by the consent of the party affected, be applied to any judgment pronounced after the new law takes effect # 6 *”

We are cognizant of the Supreme Court’s decision in People v. Hansen (1963), 28 Ill.2d 322, 340-341, wherein one of the defendants was sentenced by the trial court 13 days prior to the effective date of the newly revised Criminal Code. The penalty imposed was greater than provided under the new statute. While the review was pending, and more than 30 days after sentence was pronounced, the defendant moved the trial court for a reduction of sentence within the limits of the new enactment but the motion was denied. The claim was pursued on appeal and the court held at p. 341:

“Judgment and sentence here were pronounced prior to the effective date of the new Code, which incorporates by reference section 4 of the Statutory Construction Act, (citations omitted) which provides that a punishment mitigated by a new law is applicable only to judgments after the new law takes effect * * *”

However, we distinguish that case because: the phrase, * * or a final adjudication,” found in section 18 of the Act involved was not found in the then-new statute being considered by the Court in the Hansen case, and because the present Act does not incorporate section 4 of the Statutory Construction Act.

The word “prosecution,” used three times within section 18, is statutorily defined (Ill. Rev. Stat. 1969, ch. 38, par. 2-16) as follows:

“* * * legal proceedings by which a persons liability for an offense is determined, commencing with a return of the indictment or the issuance of the information, and including the final disposition of the case upon appeal.”

In United States v. Schooner Peggy (1801), 1 Cranch 103, 110, 2 L.Ed. 49, 51 Chief Justice Marshall stated:

“It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if, subsequent to the judgment, and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. * * * In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.”

See also, Linkletter v. Walker (1965), 381 U.S. 618, 627, 14 L.Ed.2d 601, 607, 85 S.Ct. 1731 and cases therein cited; Hughes v. Illinois Public Aid Com. (1954), 2 Ill.2d 374, 378-379; People v. Ryan (1917), 281 Ill. 231, 232 and People v. Gunn (1917), 281 Ill. 244, 245-246.

We are not here called upon to apply judicial retroactivity; rather we conclude that legislative retroactivity was intended by the specific, disjunctive use of the words, “or a final adjudication,” found in Section 18 of the Cannabis Control Act and is meant to apply to a case in review which has not reached final adjudication as defined herein. We hold that the defendant may avail himself of the mitigating provisions of the penalties provided. See, People v. Carleton (1969), 116 Ill.App.2d 450, 453-454. Also, State v. Zornes (1970), Wash. 469 P.2d 552.

Because the penalties under the new enactment vary depending upon the amount of cannabis involved and the record herein is incomplete with relation to aggravating and mitigating circumstances surrounding the offense, we deem it appropriate for the trial court to consider and pass upon the relief requested by the defendant’s motion filed herein.

Under present appellate procedure, a minimum of seven months passes between the time a notice of appeal is filed and the cause is placed on the calendar for oral argument. Since the defendant has already served 21 months in the penitentiary, we deem it essential to depart from , normal procedures. Therefore we adhere to our original opinion in so far as affirming the judgment of conviction but remand the case and direct that, within 15 days of the filing of this supplemental opinion, the defendant be brought before the trial court and a hearing be had upon the motion and objections thereto (which are hereby transferred); and further, that within 15 days of conclusion of said hearing, the trial court is to certify to this court the evidence taken, together with the judgment entered.

Judgment affirmed in part; cause remanded with directions.

This court retains jurisdiction for further review, if necessary.

SEIDENFELD and GUILD, JJ., concur.

ADDITIONAL SUPPLEMENTAL OPINION

Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

The conviction in this case was affirmed and the matter remanded for the trial court to conduct a hearing (under the provisions of the “Cannabis Control Act”) and report its findings to this Court.

In view, however, of People v. McCabe, Gen. No. 42674, filed October 15, 1971, rehearing denied November 24, 1971, 49 Ill.2d 338 (1971); and People v. Hudson, Gen. No. 43994, filed November 30, 1971, 50 Ill.2d 1, there is no necessity for a hearing under the “Cannabis Control Act.”

The judgment of the trial court is therefore reversed.

Judgment reversed.

SEIDENFELD and GUILD, JJ., concur.


author: Mr. JUSTICE GUILD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Wade, a/k/a “Jap”, Defendant-Appellant.
    (No. 70-141;
    Second District
    — Original Opinion, October 8, 1971;
    Supplemental Opinion, December 21, 1971.

      Abstract of Original and Supplemental Opinions.

    E. Roger Horsky, of Defender Project, of Elgin, for appellant.
    William R. Ketcham, State’s Attorney, of Geneva, (W. Ren Morgan and Leo Wotan, Jr., Assistant State’s Attorneys, of Elgin, of counsel,) for appellee.
   Opinion by

Mr. JUSTICE GUILD.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Joseph Wayne Patterson, Defendant-Appellant.
    (No. 70-165;
    Second District
    — Original Opinion, October 8, 1971;
    Supplemental Opinion, December 21, 1971.

      Abstract of Original and Supplemental Opinions.

      Morton Zwick, Director of Defender Project, of Chicago, (E. Roger Horsky, and Thomas Holum, of Defender Project, of Elgin, of counsel,) for appellant.
    William V. Hopf, State’s Attorney, of Wheaton, (Malcolm F. Smith, Assistant State’s Attorney, of counsel,) for the People.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. JUSTICE STOUDER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jeffrey Michael Ackerman, Defendant-Appellant.
    (No. 70-187;
    Third District
    — October 4, 1971.
    Gerald M. Werksman, of Chicago, for appellant.
    Henry D. Sintzenich, State’s Attorney, of Macomb, for the People.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

This is an appeal by Jeffrey Ackerman, Defendant, from his conviction and sentence for the offense of possession of 140 tablets more or less or less of LSD in violation of Ill. Rev. Stat. 1969, ch. llBk, pars. 802(c) and 807(c). Defendant was found guilty by a jury and sentenced to 30 days in the county jail by the circuit court of McDonough County.

The facts which are the basis of this prosecution are substantially undisputed. On the morning of April 9,1970, the postmaster of the Macomb, Illinois post office noticed that a package wrapped as a book rattled when shaken. He called the sheriff and in the presence of the sheriff and a deputy sheriff the package was opened. Inside the package was a book with its pages glued together and inside the pages was a cut out section containing about 140 pills identified by a test conducted on the spot as LSD. The package was rewrapped for delivery in due coruse. The package was addressed to Gary Lang, % Jeffrey Ackerman, 916 Henninger, Macomb, Illinois. Neither the name nor the address of the sender appeared on the package. Henninger Hall is a dormitory of Western Illinois University at Macomb and the defendant, a Western Illinois student, resides at Room 916 in such Hall. No student named Gary Lang is registered at Western Illinois University.

After ascertaining that the package would be delivered at about noon, the sheriff, deputy sheriff, postal inspector and agent of the Illinois Bureau of Investigation set up a surveillance of the first floor of Henninger Hall. At about 2 P.M. the defendant came into Henninger Hall, went to his mail box and withdrew therefrom a notice that there was a package for him. He went to the counter where packages were ordinarily delivered, presented his notice, received the package, signed a receipt therefore, put the package under his arm and headed for the elevator. While so proceeding he was stopped and arrested. The package, previously opened and examined in the post office, was taken from him.

Defendant testified that he returned to Henninger Hall to get a notebook for his next class and that he had received the package as described and that he had the package under his arm when arrested. However he denied that he knew what was in the package, that he had ordered any such package, that he knew where the package had come from and that he did not know any Gary Lang.

On appeal defendant argues as one of several points, that the trial court erred in failing to direct a verdict in his favor because there is an absence of evidence from which it may be reasonably inferred that he had “knowing” possession of a dangerous drug.

It is well settled that knowledge is an essential element in the chain of proof of the crime of possession of narcotics. (People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697 and People v. Truelock, 35 Ill.2d 189, 220 N.E. 2d 187.) Ill. Rev. Stat. 1969, par. 4 — 2, ch. 38, defines voluntary possession in the following language, “Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient time to have been able to terminate his possession." Possession as so described is an essential element of the offense of possession of a narcotic or dangerous drug. People v. Mills, supra.

As observed in People v. Galloway, 28 Ill.2d 355, 192 N.E.2d 370, “* * * the element of knowledge is seldom susceptible of direct proof, * * *” the Court further indicating that in a narcotic case knowledge sufficient to convict a person “. . . may be proved by evidence of acts, declarations or conduct of the accused from which it may be fairly inferred that he knew of the existence of the narcotics at the place where they were found.” See People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609.

The State insists there is sufficient evidence from which knowledge may be inferred under the authority of People v. Mack, supra and People v. Embry, 20 Ill.2d 331, 169 N.E.2d 767. A review of the Mack and Embry cases reveals factual situations substantially different from the facts in the case at bar. Consequently the application of the general rules in those cases offers no particular support for the position of the State in this case.

In People v. Jackson, 23 Ill.2d 360, 178 N.E.2d 320, the Court declared, “The State would have us extend the Mack doctrine by holding that suspicious behavior in the vicinity of narcotics is proof not only of knowledge of their presence, but of all of the other elements of criminal possession as well. This we cannot do, however reluctant we may be to disturb the determination of the trier of facts in narcotics cases.”

In People v. Mosley (Ill.App.2d), 265 N.E.2d 889, a recent case dealing with this problem, the court held that presence of marijuana in the trunk of a car without other evidence relating such presence to some conduct of the defendant other than his occupancy of the car as a passenger was insufficient to give rise to any fair or reasonable inference of knowledge or possession.

In applying the foregoing authorities to the facts in the case at bar it is our opinion that the evidence fails to show acts, declarations or conduct which fairly support any inference of knowledge by defendant that the package contained LSD. In this respect the State itself refers to defendant’s conduct as suspicious or not normal, characterizations which are difficult to justify from the evidence at best and insufficient to support the burden imposed upon the State. All the evidence shows is that defendant received a package in the course of normal mail delivery and placed the package under his arm for about five seconds. Such evidence is of little more probative value than the evidence of the discovery of the LSD in the package in the post office.

In view of our conclusion that the evidence is insufficient to support the conviction it is unnecessary to consider the other assignments of error.

For the foregoing reasons the judgment of the circuit court of Mc-Donough County is reversed.

Judgment reversed.

ALLOY, P. J., and SCOTT, J., concur.


author: Mr. JUSTICE SCOTT

text:
    Leva Adkins, Plaintiff-Appellee, v. Chicago, Rock Island and Pacific Railroad Company et al., Defendants-Appellants.
    (No. 69-135;
    Third District
    — October 5, 1971.

      Rehearing denied November 15, 1971.

      B. A. Webster, of Des Moines, Iowa, William M. Walker, of Rock Island, and Eugene R. Johnson, of Peoria, for appellants.
    Harry M. Philo, of Detroit, Michigan, Verne Lawyer, of Des Moines, Iowa, and Frank G. Schubert, of Rock Island, for appeUee.
   Mr. JUSTICE SCOTT

delivered the opinion of the court:

MODIFIED OPINION

This is an appeal from a judgment of the circuit court of Rock Island County, Illinois.

The plaintiff in this litigation is a resident of the State of Michigan. The defendant railroad is a Delaware corporation doing business in Iowa and IUinois. The individual defendants, Throckmorton and Loftus, are officers of the railroad and are residents respectively of Cook and Will Counties, Illinois.

The plaintiff brought action to recover damages for the death of her deceased husband which resulted from a grade crossing collision between defendant’s train and a truck driven by the decedent, Everett Adkins. The collision occurred at Booneville in the state of Iowa on October 6, 1966.

This suit was first filed on October 18, 1966, in the U.S. District Court for the Southern District of Iowa, Central Division, at Des Moines, Iowa. As originaUy filed the railroad was the sole defendant. On September 8, 1967, a pre-trial conference was held, at which time the defendant railroad’s Motion in Limine was considered and granted. The cause was then set for trial on December 5, 1967, however, prior to this time the plaintiff moved to dismiss the action. On January 16, 1968, the case was re-filed in the circuit court of Rock Island County, Illinois, and again the sole defendant was the railroad. On March 15, 1968, the defendant railroad filed a motion to dismiss the action on the grounds of forum non conveniens. Thereafter on April 29, 1968, the plaintiff filed a motion to amend the complaint by adding individual defendants, namely, W. B. Throckmorton and R. V. Loftus, agents and employees of the railroad. On August 16, 1969, the plaintiff’s motion to amend was allowed and the defendant railroad’s motion to dismiss on the grounds of forum non conveniens was denied.

The errors assigned on this appeal are as follows: (a) the trial court erred in not sustaining the motion to dismiss on the grounds of forum non conveniens, (b) that the court erred in failing to dismiss the individual defendants from the case, (c) that plaintiffs decedent was guilty of contributory negligence, (d) that the trial court ruled incorrectly on certain objections to evidence, (e) that the trial court erred in instructing the jury, (f) that the verdict was excessive and should be set aside, and (g) that the trial court erred in denying certain motions. To adequately consider these claimed errors we will in turn state them with greater specificity and supply additional factual information where the same is relevant.

Directing our attention to the alleged error of the trial courts ruling on the motion to dismiss the action on the grounds of forum non conveniens, we wish to note our awareness of the fact that our Supreme Court has approved the application of the doctrine in certain instances. (Whitney v. Madden, 400 Ill. 185, 79 N.E.2d 593; Cotton v. Louisville & Nashville Railroad Company, 14 Ill.2d 144, 152 N.E.2d 385.) The doctrine is an equitable one and has been described as “the discretionary power of a court to decline to exercise a possessed jurisdiction whenever it appears that the cause before it may be more appropriately tried elsewhere.” See “The Doctrine of Forum Non Conveniens in Illinois,” University of Illinois Law Forum, 1964, p. 646.

We are cognizant of the general rule that application of a doctrine lies primarily within the discretion of a trial court and that the motion should be allowed if a choice of forum is purely vexatious, but should be denied when there is a relevant connection between the litigation and the forum chosen (Cotton v. Louisville & Nashville Railroad Company, supra); also, we are aware of the excellent judicial discussion of the doctrine by Mr. Justice Jackson in the Case of Gulf Oil Corp. v. Gilbert, 330 U.S. 501, 67 S.Ct. 839, 91 L.Ed. 1055. It was in this case that Mr. Justice Jackson discussed certain factors which may persuade the trial court to dismiss an action, e.g., relative ease of access to sources of proof, availability of compulsory process for attendance of unwilling witnesses, cost of obtaining attendance of willing witnesses, possibility of view of premises, court calendar congestion, the burdens of jury duty upon people of a community which has no relation to the litigation and the appropriateness of having a forum that is at home with the state law that must govern the case.

Mr. Justice Schaefer in his dissent in the Cotton case says that the court should consider “first, the relative capacity of the two forums to furnish the essentials of a fair trial, such as the power to compel the attendance of witnesses and the production of documents and to afford the jury an opportunity to view the scene if that is appropriate, and second, the relative convenience of the witnesses and the parties.” Cotton v. Louisville & Nashville Railroad Company, supra.

Before we examine the instant case in the light of guidelines set forth by Mr. Justices Jackson and Schaefer, we must note that both of these eminent jurists recognized that it is elementary that the doctrine of forum non conveniens presupposes at least two forums in which the defendant is amenable to process. Gulf Oil Corp. v. Gilbert, supra; Cotton v. Louisville & Nashville Railroad Company, supra.

After an examination of the record in the case now before us on appeal we can only conclude that prior to verdict there was never available a choice of forum, since Illinois was the only state in which all three defendants could be sued. At no time did the individual defendants Throckmorton and Loftus consent or in any way indicate that they would consent to be sued in any state other than Illinois, their state of citizenship and residence. It is significant that the defendants Throckmorton and Loftus never raised the issue of forum non conveniens at any time prior to verdict. In fact, there was never any claim, affidavit or motion prior to trial in which the individual defendants Throckmorton and Loftus contended that the complaint against them should be dismissed or that the pending action should be heard by a forum other than the circuit court of Rock Island County.

The exercise of discretion by a trial court cannot be abused when in fact the court was not vested with the power or right of discretion. In the case before us the trial court did not have presented to it a second forum which would be available to all defendants so we fail to see any error in the court’s refusal to grant the motion for dismissal based upon the doctrine of forum non conveniens.

In determining that the doctrine of forum non conveniens was inapplicable in the case before us we must necessarily presuppose that the individual defendants Throckmorton and Loftus were proper parties to the litigation. We do presuppose since we believe that the law is settled as applied to the facts in the case before us that Throckmorton and Loftus were indeed proper parties to the suit.

The defendant argues that agents such as Throckmorton and Loftus can be liable to third parties for wrongful acts of misfeasance committed by them, but that as such agents they are not personally liable to a third party for mere nonfeasance, or in other words where they failed to perform some duty owed to an injured party. In support of this contention the defendants cite the case of Wendland v. Berg, 188 la. 202, 174 N.W. 410. We do not believe that the law is as clear cut in regard to the misfeasance and nonfeasance distinctions as the defendants claim it is. In fact in our present society liability or lack of liability to third parties based upon the misfeasance or nonfeasance test has become such a murky field that the old test itself has become obliterated and useless. We believe that this conclusion is sustained when we review the history of Judge Storys rule, which for many years was the settled law regarding an agent’s liability to third parties.

“Judge Story, in his work on the Law of Agency, published in 1839, founded the following statement on what he terms Lord Holt’s celebrated judgment in Lane v. Cotton: ‘The agent is also personally hable to third persons for his own misfeasances and positive wrongs. But he is not, in general (for there are exceptions), hable to third persons for his own nonfeasances or omissions of duty, in the course of his employment. His liability, in these latter cases, is solely to his principal, there being no privity between him and such third persons, but the privity exists only between him and his principal. And hence the general maxim as to all such negligences and omissions of duty is, in cases of private agency, “respondeat superior.”
‘The distinction, thus propounded, between misfeasance and nonfeasance, between acts of direct, positive wrong, and mere neglects by agents, as to their personal liability therefor, may seem nice and artificial, and partakes, perhaps, not a little of the subtlety and overrefinement of the old doctrines of the common law. It seems, however, to be founded upon this ground: that no authority whatsoever from a superior can furnish to any party a just defense for his own positive torts or trespasses, for no man can authorize another to do a positive wrong. But in respect to nonfeasances or mere neglects in the performance of duty, the responsibility therefor must arise from some express or implied obligation between particular parties standing in privity of law or contract with each other, and no man is bound to answer for any such violations of duty or obligation, except those to whom he has become directly bound or amenable for his conduct.’ Story, Agency, 9th Ed.§ 309.
In making this statement, Judge Story seems to have overlooked the obligations which are imposed upon all living in a civilized community, in favor of their neighbors. Because of this obligation the law and public policy impose certain duties upon persons who have contracted with a master to do a certain thing which makes them liable to third persons for its nonperformance. Most acts of negligence are, in final analysis, acts of nonfeasance, but the books are full of cases in which servants and agents have been held hable for negligence. While, therefore, many cases have attempted to maintain the formula laid down by Judge Story, they have, in practice, either distinguished it so that little is left of it, or departed from it altogether.” 20 A.L.R. 97, p. 103-104.

Today the courts are agreed that an agent is liable to a third person for damages resulting from violation of a duty which such agent owes to the third person and it matters not whether that violation be one of malfeasance, misfeasance or nonfeasance, but whether such a duty exists under any particular set of circumstances, a difference of opinion prevails in various jurisdictions, due largely to a disagreement as to the exact meaning of the use of the terms “malfeasance”, “misfeasance” and “nonfeasance” and their application to the questions before the court.

In most jurisdictions the courts are apparently in accord in holding the servant of a railroad company jointly Hable with his master for injuries resulting from a crossing accident which occurs as the result of the failure of the servant to sound a warning as the train approaches the crossing, (Judd v. Oregon Short Line R. Co., 4 F.Supp. 657; Strom v. Payne, 119 S.C. 51, 111 S.E. 798; Chesapeake & Ohio Railway Co. v. McCoy, 228 Ky. 752, 16 S.W.2d 170), or the failure of a railroad employee with a lighted lantern in his hand on a dark night at a crossing to warn of an approaching train, persons in an automobile which he knows to be also approaching, since this duty is not solely a duty to his master but is clearly a duty to the public as well. Burrichter v. Chicago M. & St. P. R. Co., 10 F.2d 165.

The defendants state that it is the law in Iowa as elsewhere that a corporate officer is not liable to a third person for failure to perform a duty owed solely to the corporation and not to the public generally. Is not then the pivotal question whether defendant Throckmorton, the chief engineer, and defendant Loftus, the engineer of public works of the defendant railroad, did or did not owe a duty to the public as well as to their employer? We believe that this is the crux of the question as to whether Throckmorton and Loftus were proper parties to the action. We further believe that the law of Iowa is clear on this point and they were proper defendants. The Iowa Supreme Court has said:

“Liability is predicated on duty. If the agent is put in control of the situation with the express or implied consent of the principal or is given or exercises such powers within his authority that an independent actor would have, it is quite generally held that he owes a duty to third persons to use due care in what he does, the same as any other individual. Such a control of property imposes upon him a duty not altogether and simply as agent, but as a custodian and controller of such property for the purposes in hand. The fact that he also owes a special duty to his principal is not material.
It may be conceded he owes such a duty and his failure to perform properly may be considered as nonfeasance to his principal, but it is misfeasance to a third person injured thereby. Briefly stated, the negligence of the agent converts what otherwise would have been a proper performance of his duties into misfeasance.” Emery v. American Refrigerator Transit Co., 194 la. 926, 189 N.W. 824.

Therefore, according to our analysis of the law the trial court did not err in overruling the motion for directed verdict made by defendants Throckmorton and Loftus.

The defendants claim that the plaintiff’s decedent was guilty of contributory negligence as a matter of law and that the trial court erred in not sustaining defendants’ motion for directed verdict and their motion for judgment notwithstanding the same. Both the plaintiff and the defendants cite the case of Pedrick v. Peoria and Eastern Railroad Company, 37 Ill.2d 494, 229 N.E.2d 504, as setting forth the substantive law regarding the granting or denying of such motions. The Pedrick case not only is the recognized law in Illinois but also reflects the law followed in Iowa. It was in this case that our Illinois Supreme Court stated:

“Verdicts ought to be directed and judgments non obstante veredicto entered only in those cases in which all of the evidence when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

In the case before us the decedent Adkins was a 37 year old professional truck driver. He was at least somewhat familiar with the crossing in question since he had stayed at a motel located across the track on at least four previous occasions. He was driving a trailer rig of some 50 feet in length having total weight of twenty-two or twenty-three thousand pounds. Approaching the Booneville crossing from the east on Highway No. 6 the railroad tracks parallel the highway for between three and five miles. In this stretch before the crossing the land is flat. The railroad tracks and the highway run 110 feet apart at the Booneville turnoff and the tracks are slightly higher than the turnoff or entry road into Boone-ville. The decedent in proceeding west on the highway and north on the turnoff road was afforded an unobstructed view to the west for 783 feet to the east end of a railroad bridge and then the view to the west was obstructed if at all only by tire open cross sections on the bridge. On the north side of the tracks there is a stop sign and a crossbuck sign. No such signs were present on the south side of the track as the decedent approached. The accident occurred at 10:15 P.M. on a clear night. The train was travelling from west to east at a speed of 55 to 59 miles per hour. There were two headlights on the train which projected a beam from 200 to 400 yards down the track. The whistle of the train commenced blowing several hundred yards west of the crossing and con-tinned to blow until the time of impact. According to witnesses the decedent was driving the tractor trailer rig at a speed of approximately 10 miles per hour. A reconstruction expert called by plaintiff testified that if the train was travelling 56 miles per hour it would have taken 9.5 seconds to travel the 783 feet from the railroad bridge to the crossing and if the decedent had been proceeding at a speed of 14 miles per hour then to have stopped at the crossing he would have to have first observed the train at the latest when it was 604 feet from the crossing and at the earliest when it was 859.3 feet from the crossing.

The reconstruction expert testified that the decedent could have been looking into his right outside rear view mirror in order to make sure that his equipment was clearing the corner of the intersection as he swung the unit onto the road going north which led to the crossing. The expert further testified in detail as to his opinion of the time involved in the decedent perceiving that a train was coming in his direction. He testified that it was reasonable that the decedent would take as long as one-half of a second to perceive the train was coming, that it was reasonable that one more second would be consumed as the decedent comprehended the hazard and risk and that one further additional second would be used by the decedent to decide in the emergency facing him as to what action he should take to safeguard himself.

It is the defendants’ contention that this evidence when viewed most favorably to the plaintiff shows either that the decedent was not keeping a proper lookout or that he was proceeding at a rate of speed which for his particular rig made the coUision unavoidable and therefore the decedent was guilty of contributory negligence.

It is recognized in the Pedrick case that where a substantial factual dispute is disclosed by the evidence, either on the issue of plaintiffs due care or defendant’s negligence, or where an assessment as to credibility of witnesses and an election between conflicting evidence may be decisive, the constitutional right of the parties to a jury determination should be carefully preserved and it would be erroneous to direct a verdict in such cases. The question, therefore, is whether the record in this case requires or justifies the direction of a verdict. Wolfe v. Whipple, 112 Ill.App.2d 255, 251 N.E.2d 77.

We are not now faced nor are we authorized to determine questions of fact v/hen motions are made for a directed verdict or judgment notwithstanding the verdict. Instead we must determine whether the evidence when viewed in its aspects most favorable to the nonmoving party so overwhelmingly favors the movant that a contrary verdict for the opponent could not stand.

When the evidence in the case before us on appeal is viewed in its aspects most favorable to the plaintiff we find that decedent was awake, having put on his turn signals, he was wearing a seat belt, he was driving 10 to 14 miles per hour and he had to devote for some period of time his attentions to the traffic and conditions on highway No. 6 as he turned onto the approach which led to the crossing. There was no railroad cross-buck sign on the decedent’s side of the track. There is evidence in the record which may well explain the circumstances of the decedent driving into a collision with a train and there was also a question as to the degree of familiarity the decedent had with the crossing based upon his four previous all-night stops in Booneville, the last being six months prior to the date of the accident.

The defendants cite a number of cases illustrating the standard of care or type of conduct which should be followed if one is to be free from contributory negligence. In affirming submission of issue of plaintiff’s decedent driver’s contributory negligence to the jury in a railroad crossing case Mr. Justice Cardozo said:

“Illustrations such as these bear witness to the need for caution in framing standards of behavior that amount to rules of law * * *. In default of the guide of customary conduct what is suitable for the traveler caught in a mesh where the ordinary safeguards fail him is for the judgment of the jury.” Pokora v. Wabash Ry. Co., 292 U.S. 98.

The case of Skala v. Lehon, 258 Ill.App. 252, is cited as authority for the principle that a person who gives another reasonable cause for alarm cannot complain when that person so alarmed does not exercise cool presence of mind in reacting to it; that the latter’s conduct should be judged not in the light of what later events reveal would have been better or safer but against the standard of how a reasonable man would have reacted under circumstances of the same sudden alarm.

Based upon the record we believe that there are a number of facts which required submission to a jury the proposition of whether plaintiff’s decedent was free from contributory negligence and whether the defendants were guilty of negligence.

The defendants argue that reversible error was committed by the trial court in its ruling on certain objections to evidence. Specifically the court permitted an expert witness to testify that he considered the railroad crossing one of the most dangerous he had ever seen; the court permitted a reconstruction expert to testify; that the plaintiff was permitted to introduce into evidence certain traffic device manuals; testimony relative to whether the defendant railroad had notified public authorities of the absence of a warning sign and crossing sign was permitted to be introduced, and the court permitted the plaintiff to introduce into evidence an intra-company letter of the defendant railroad. The defendants objected to the ruling of the trial court permitting all of this evidence to be submitted to the jury.

A railroad crossing protection expert, being a plaintiff’s witness, in response to a question propounded to him on direct examination in regard to the railroad crossing in question stated:

“Based upon my experience and observation of thousands of transactions, I consider this one of the most dangerous that I have ever seen.”

The defendants argue that in permitting this testimony it had the effect of invading the province of the jury in deciding the basic issue of the case. The defendants cite a number of cases in support of their contention, including Hughes v. Wabash R. R. Co., 342 Ill.App. 159, 95 N.E.2d 735. However, we believe that the law regarding this question was settled in Merchants National Bank of Aurora v. The Elgin, Joliet & Eastern Railway Co., 121 Ill.App.2d 445, 257 N.E.2d 216. In this case the court stated:

“Cases from other jurisdictions which involve a specific question of expert opinion as to the hazardous nature of a railroad crossing are not in agreement. We believe the better reasoning delineates a trend toward permitting such testimony in the sound discretion of the court when the witness has a peculiar knowledge or experience not common to the world in general which may aid the finder of fact in determining the issues before it. The court and jury is, of course, not bound to accept the conclusions of the expert. See Shutka v. Pennsylvania R. R. Co., 181 F.2d 490, 409 (N.J. 1962); Southern Pacific Company v. Watkins, 435 P.2d 498, 508 (Nev. 1967); Bridger v. Union Railway Company, 355 F.2d 382, 387 (C.C.A. 6, 1966).”

The plaintiff presented the opinion testimony of a traffic accident reconstruction expert relative to the time which expired when the decedent first perceived his dangerous situation, comprehended the problem and decided on a course of action. Also opinion testimony was received from the expert as to the time used by the decedent in applying his brakes, and further he gave evidence as to the approximate speed of the truck just prior to the collision. The defendants urged that such testimony is in error and especially so since eyewitness testimony was available. The most recent pronouncement by our Supreme Court concerning testimony of a reconstruction expert is found in Plank v. Holman, 46 Ill.2d 465, 264 N.E.2d 12. The court stated in the Plank case:

“A similar problem exists with the testimony of the reconstruction expert. In Miller v. Pillsbury Co., 33 Ill.2d 514, 516, 211 N.E.2d 733, 735, this court stated we are of the opinion that expert testimony on reconstruction of an automobile accident should be admissible where it is necessary to rely on knowledge and application of principles of physics, engineering and other sciences beyond the ken of the average juror.’ However, reconstruction testimony may not be used as a substitute for eyewitness testimony where such is available. Whether it may be used in addition to eyewitness testimony is determined by whether it is necessary to rely on knowledge and application of principles of science beyond the ken of the average juror. In this case this would be determined by the trial court after the testimony of the plaintiff as to the cause of the accident.”

Following the rule set forth in Plank we must determine whether the opinion testimony of the reconstruction expert in the case before us was used as a substitute for eyewitness testimony or was it in addition thereto, and was necessary because certain knowledge and application of the principles of science were beyond the ken of the average juror. The record discloses that the plaintiff’s expert did not reconstruct the collision itself. He offered no opinion as to speed based upon skid marks. He did not compute the angle of impact, nor did he offer opinion testimony as to the speed of the train and the speed of the truck based upon an analysis of collision damage. In fact, there was no reconstruction evidence relating to the actual collision. It is true that there were three eyewitnesses to the collision, namely, an observant truck driver and the engineer and brakeman of the train involved. However, none of these witnesses were able to assist the jury as to time and distances involved, e.g., braldng time and air brake lag time. This information we believe should have been provided to the jury. Certainly the computation of such information is beyond the ken of the average juror. We believe that the determination of the trial court to permit the plaintiff’s expert to testify as to such matters was a correct determination and did not constitute error.

The trial court further admitted into evidence the Uniform Traffic Control Device Manual of Iowa and photostatic enlargements of two pages of that particular manual relating to crossbuck signs and advance warning signs at railroad crossings. Also admitted was the Federal Uniform Traffic Control Device Manual. The admission of these exhibits was objected to by the defendants. Prior to admission of the crossing protection standards of the Iowa Uniform Traffic Control Device Manual the plaintiff proved by testimony of the defendant Throckmorton that the railroad had followed the recommendations contained in this manual as standards of reasonable care as far as signing, lighting and barricading at grade crossing was concerned. It was further proved by the plaintiff that the railroad crossing protection standards were national standards and that the defendant railroad used as a standard the Federal Uniform Traffic Control Device Manual which defense counsel conceded to be identical with the Iowa manual. The trial court instructed the jury on the limited use of the manual. The trial court was correct in the admission of tire exhibits for certainly they could assist the jury in determining the question of reasonable care. Such evidence was a relevant aid to the jury in deciding what was feasible and what the railroad knew or should have known concerning grade crossing protection standards. (See Darling v. Charleston Community Memorial Hospital, 33 Ill.2d 326, 211 N.E.2d 253.) The defendants contend that the code of Iowa requires only one crossbuck sign at a railroad crossing and that the manual requiring two such signs contravenes the very statute which authorized its existence. We fail to see the pertinency of such an argument since we doubt if the legislature of Iowa ever intended, if indeed it would have any right or power to deprive courts and juries of their function of determining in individual cases whether the defendants conduct measured up to the standards of reasonable care under the circumstances; and consequently the fact that statutory requirements are fully complied with does not prevent a finding by a jury that the railroad was negligent in not providing additional warnings or signals. (Chicago G. W. R. Co. v. Kowalski, 92 F. 310; Mast v. Illinois C. R. Co., 79 F.Supp. 149.) We fail to find that the trial court was in error in admitting into evidence the manuals and photographs.

The trial court permitted the introduction of testimony to the effect that neither the defendant railroad or the defendant Loftus who performed an engineering survey of the crossing ever notified the public authorities that the advance warning sign was missing. The defendants claimed that this testimony constitutes prejudicial error since the court by its ruling permitted the jury to believe that the defendant railroad could be found negligent either in failing to erect an advance warning sign or in failing to notify the public authorities of its absence when in fact it was a duty of the county authorities to see to tire installation of such a sign. It should be noted that the trial court instructed the jury as follows:

“Railroad companies are not required to place so-called advance warning signs on the road or highway in advance of the approach to a railroad crossing. This is solely the responsibility of the public authorities.”

This instruction negates defendants’ contention that the jury would be led to believe that the installation of such signs was the duty of the defendant railroad. We do not find that the trial court abused its discretion in permitting the introduction of evidence objected to. Testimony as to whether the defendant railroad notified public authorities as to the absence of an advance warning sign is admissible since it is relative to the question of due care and reasonable conduct on the part of the defendant. “Standards of prudent conduct are declared at times by courts but they are taken from facts of life * # Pokora v. Wabash Ry. Co., supra.

The trial court permitted the introduction in evidence of an intra-company letter to the defendant railroad. In this correspondence an employee of the railroad described the crossing as “a very dangerous situation” “a serious problem,” “a very dangerous setup” and recommended that the railroad engineering department make a study with respect to the installation of warning signals. The defendant railroad contends that the admission of the correspondence in evidence was error in that the author of the letter was referring to and describing conditions that would confront a southbound traveler and that the decedent had been traveling north at the time of the fatal collision. We agree with the defendant that admissions as well as other types of evidence must be relevant to the issues, however, we believe that the admissions in the correspondence were relevant in that the writer was referring to the crossing in general and did not limit his views and recommendations with only southbound traffic in mind. The jury also had before it the testimony of a police officer who described the crossing from which description the jury could conclude whether it was dangerous when approached by the northbound traveler as well as one traveling south. We believe that read in its entirety there is sufficient privity between the letter and the issues to be decided by the jury to justify its admission into evidence.

The defendants tendered an instruction which stated “that if the jury found plaintiff’s decedent sufficiently familiar with the railroad crossing, that he knew or in the exercise of ordinary care should have known of its whereabouts, then he was not entitled to rely on an advance warning sign or an additional crossbuck but was obliged to exercise due care for his own safety in the light of his knowledge.” This instruction was refused by the court and the defendants allege error. “Instructions are to be given in clear and intelligent language and inform the jury what the issues are, the principles of law applicable to be observed and the facts material to be proven to justify their verdict.” (Smith v. City of Rock Island, 22 Ill.App.2d 389, 161 N.E.2d 369.) The instruction tendered by the defendants failed to meet the criteria set forth in the Smith case in that it did not clearly set forth the issues, but had the effect, if given, of permitting the defense to argue its case through the use of an instruction. Hie trial court did not err in refusing this instruction.

Lastly the defendants contend that the jury’s verdict is excessive and should not be permitted to stand. The verdict returned by the jury was in the amount of $449,757.00 and is acknowledged by both the plaintiff and defendants to be the largest death verdict ever returned under Iowa law. It is true that the decedent was but 37 years of age, well employed, conscientious, responsible and left surviving him a wife and four minor children, yet we cannot reconcile the amount of the verdict with any accepted standards of computing damages or loss of support. The interest yield alone on the investment of such a sum would far exceed the actual or anticipated earnings of the decedent. After a careful analysis of the verdict we can only conclude that it is excessive. We therefore find that there should be a remittitur in the amount of $199,757.00, and if the plaintiff-appellee will file a remittitur in this court on or before thirty days from the date of the receipt by counsel for plaintiff-appellee of a certified copy of this opinion, judgment will then be entered in this case in the sum of $250,000.00; otherwise said case is remanded to the circuit court of Rock Island County for a new trial.

Affirmed upon remittitur, otherwise reversed and remanded.

ALLOY, P. J., and STOUDER, J., concur-.


author: Mr. PRESIDING JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles E. Talbot, Defendant-Appellant.
    (No. 70-152;
    Third District
    — October 5, 1971.
    Theodore A. Gottfried, of Defender Project, of Ottawa, for appellant.

      William K. O’Connor, State’s Attorney, of Cambridge, for the People.
   Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

The cause before us involves a simple but unusual issue.

Defendant Charles E. Talbot was charged in one count of an indictment with the crime of armed robbery and in the other count with theft of less than $150. One count, therefore, involved theft from the person in the armed robbery charge, and the other, simply theft of a sum less than $150. On July 18, 1970, as a result of plea bargaining and conferences, defendant waived a jury trial and pleaded guilty to the count of the indictment which charged the theft of $12. Pursuant to the agreement as between the parties, the first count charging armed robbery was dismissed. The defendant was thereafter sentenced to a term of not less than 1 nor more than 2 years in the penitentiary in accordance with the agreement of the parties.

On appeal in this Court, defendant contends that the sentence imposed upon him is improper and not authorized by statute (111. Rev. Stat. ch. 38, par. 16 — 1). The statute in question specifically provides that a person first convicted of a theft of property not from the person and not exceeding $150 in value shall be fined not to exceed $500 or imprisoned in a penal j institution other than a penitentiary not to exceed 1 year or both. It further provides that a person convicted of such theft a second or subsquent time or after a prior conviction of any type of theft shall be imprisoned in the penitentiary from 1 to 5 years.

It is pointed out on behalf of the State that the defendant in this cause was previously convicted of the crime of burglary and served a term in the penitentiary as a result thereof. It is contended by the State that since he was so convicted of burglary, this involves any “type of theft” referred to in the statute. We cannot determine from the record if there was any theft involved in the burglary conviction since the only reference to burglary shown on appeal in this Court is simply the fact of sentencing for such crime. If in fact the burglary involved theft and defendant was previously convicted of said crime of burglary involving a type of theft, then a sentence of 1 to 2 years could stand.

A second consideration which is urged by the State is that in the dismissed count the charge was made of the theft of this sum from a person. When the question arose as to the matter of sentencing, the State offered to amend the remaining count to state that the theft was from the person of a certain individual. This would amount to a theft from the person. The attorney for the defendant was asked if he had any objections and he stated he felt it was sufficient as is. The State contends that it would be incongruous if defendant were allowed to reap the benefits and rewards of a negotiated plea and ultimately escape the consequences thereof. We agree that a defendant, wherever possible, should not be permitted to take advantage of technical positions to defeat the objectives of a negotiated plea. We find no precedent, however, which would authorize us to invoke the doctrine of estoppel in a criminal case with respect to sentences resulting from negotiated pleas where an appeal is founded on an assertion that a sentence is in excess of the penalty fixed by statute for the charge to which a guilty plea was made.

In view of the fact that the record does not indicate the nature of theft, if any, involved in the burglary charge for which defendant previously served a term and in view of the state of the record as it exists at the present time, this Court cannot determine the issues raised on the appeal and it is, therefore, reversing this cause and remanding the same to the circuit court of Henry County for resentencing.

So far as the record before us is concerned, the only appropriate sentence under the section of the statute involved would be for a period of 1 year. Unless a clear record of a prior conviction for a “type of theft" is shown, sentence should be imposed only for a period of 1 year. This cause will, therefore, be reversed and remanded to the circuit court of Henry County for resentencing.

Reversed and remanded for resentencing only.

STOUDER and SCOTT, JJ., concur.


text:
    Charles De Groot et al., Plaintiffs-Appellees, v. Louis Kohr et al., Defendants-Appellants.
    (No. 70-162;
    Third District
    — October 5, 1971.

      Anthony C. Raccuglia, of La Salle, for appellants.
    Fremont Kaufman, of La Salle, for appellees.
   Mr. JUSTICE STOUDER

delivered the opinion of the court:

George De Groot, the owner at the time, of the premises involved in this appeal, died testate in 1930. His will duly admitted to probate in La SaHe County, included the following provision, “I give and devise to my wife, the real estate described as follows * * * to have and to hold and enjoy during her lifetime with power to sell and dispose of the same at her pleasure and discretion as she may think necessary, provided, however, that in case she should elect to sell the same, then, in that event, she shall pay out of the purchase money realized from the sale of the aforesaid described premises, the sum of One Thousand Dollars ($1,000.00) to each of the following children of myself, and my wife, namely: Charles De Groot, Adeline De Groot, Georgenette De Groot, and Louis Kohr, and provided further, that there shall be no liability on the part of purchaser to see to the application of the purchase money.”. The same four persons designated as recipients of the $1,000 payments were also the residuary beneficiaries in the will. Each of the four mentioned persons survived George De Groot as did his widow Anna De Groot.

On December 7, 1963, Anna De Groot executed a quitclaim deed conveying the premises described in clause two of George De Groot’s will to Louis Kohr, one of the remaindermen under the will of George De Groot. The deed recited a consideration of one dollar and further provided that the grantor Anna De Groot reserve the possession and income from the premises for and during her natural life. The deed was duly recorded.

On February 17, 1969, Anna De Groot died and Louis Kohr and his wife took possession of the premises. Thereafter Charles De Groot, Adeline Capello and Georgenette Haupt, three of the beneficiaries described in clause two of George De Groot’s will, brought this action for partition against Louis Kohr, the fourth beneficiary and grantee in the quitclaim deed, such action praying that the quitclaim deed be set aside and further that partition be decreed on the basis that each of the plaintiffs and the defendant were respectively the owners of an undivided one-fourth interest in the premises. The three plaintiffs were children of George De Groot by a previous marriage and the defendant Louis Kohr was the son of Anna De Groot by a previous marriage.

The trial court set aside the quitclaim deed and decreed partition in accord with the prayer of the plaintiffs. It is from such decree that defendant Louis Kohr has appealed.

It is defendant’s theory in support of his claim that the decree of the trial court is erroneous, that Anna De Groot duly exercised her power of sale granted by the will of George De Groot and that whatever claim plaintiffs may have is a claim against the estate of Anna De Groot. The only authorities cited by defendant in support of his theory are Hollerich v. Gronbach, 342 Ill.App. 242, 96 N.E.2d 354 and Nielson v. Duybejonsonck, 94 Ill.App.2d 224, 236 N.E.2d 743. However we do not believe that either of such cases is relevant to the issue on this appeal since in neither of the cases is the propriety of the exercise of the power granted by the will or the transfer pursuant to such authority an issue. In each case it is assumed that the power of sale was properly exercised, that the sale was bona fide and that it was for an adequate consideration. Such assumptions are contrary to the essential facts of the case at bar.

The principal evidence regarding the execution and delivery of the quitclaim deed was that of Louis Kohr and Anthony Raccuglia, his attorney.

According to the testimony of Raccuglia he was asked to prepare the quitclaim deed by Louis Kohr and accompanied Louis to have the same signed by Anna De Groot in order that he Anthony Racuglia could notarize the document. At the time the deed was signed Raccuglia testified that Kohr turned over $2,500 to Anna De Groot. According to Raccuglia at the time of the preparation and execution of the quitclaim deed he had no knowledge of George De Groot’s will, the power of sale, Anna De Groot’s interest in the property nor did he have any knowledge concerning the purpose or intent of the transaction. His testimony in no way indicates that a sale of the premises was proposed, intended or attempted.

The testimony of Louis Kohr likewise fails to support any inference that the execution and delivery of the quitclaim deed reserving a fife estate in Anna De Groot, was intended as a sale, that the $2,500 was the consideration for the transfer of the property or that such an amount would have been an adequate consideration for the transfer. According to Kohr his mother was unable to take care of the property and she wanted him to have it. It also appears from Kohr’s testimony that prior to the transfer he had been paying his mother about $15.00 every two weeks for her support and that after the payment of $2,500 he no longer made any payments therefore. Additionally Anna De Groot received rent from the tavern located on the first floor of the premises while she lived on the second floor. Repairs and maintenance on the premises were minimal during the period 1963 to 1969 and it appears that the premises were worth approximately $17,000 in 1969.

From the foregoing facts which are substantially undisputed it is our conclusion that the trial court properly determined there had been no proper exercise of the power of sale contained in the will. As observed in Cales v. Dressler, 315 Ill. 142, 146 N.E. 162, “The power of sale conferred excludes a conveyance by her for the sole purpose of cutting off the remainder and making it possible that the property pass under her will. To sustain a conveyance for such a purpose would permit a mere subterfuge to defeat the testators intention.".

Bevans v. Murry, 251 Ill. 603, 96 N.E. 546, illustrates the differences in legal remedies available where there has been a bona fide sale for an adequate consideration under a power of sale and where the transfer has been made without consideration. As indicated in the Bevans case notwithstanding the broad authority of the possessor of the power of sale to consume the proceeds, such authority with regard to the proceeds did not imply an intention on the part of the testator to authorize disposition or transfer of the property for other than an adequate consideration. (See also Frank v. Frank, 305 Ill. 181, 137 N.E. 151.)

In our opinion the purported transfer of the premises by Anna De Groot is contrary to the intention of the testator. Its only purpose and effect was to deprive the remaindermen of their interest in the property contrary to the authority created by the power of sale.

We find no error in the decree of the circuit court of La Salle County and accordingly said decree is affirmed.

Decree affirmed.

ALLOY, P. J., and SCOTT, J., concur.