text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilbert Collins, Defendant-Appellant.
    (No. 59025;
    First District (5th Division)
    August 9, 1974.

      Paul Bradley and Allen Wiederer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel, and Robert S. Levy, Senior Law Student), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

After a bench trial, defendant was found guilty of rape and was sentenced to a term of 8 to 20 years. On appeal he contends: (1) he was not proven guilty beyond a reasonable doubt; (2) he was denied due process of law when the trial court considered matters not in evidence in arriving at a determination of defendant’s guilt; and (3) the sentence imposed is excessive.

The following evidence pertinent to this appeal was adduced.

Mary Hawthorn, the prosecutrix, testified:

She is 50 years old. On May 14, 1972, at approximately 2 A.M. she returned home after visiting two ill neighbors in a hospital. She parked her car on Polk Street near her home. No one was walking on the street nor did she see anyone sitting in any of the cars parked along the street. As she was removing a chair from her car, defendant approached her from the rear, threatened her with a knife and forced her back into the car. Holding a knife to her neck, defendant directed her to drive seven blocks to a vacant lot. Once there defendant pushed her out of the car and shoved her into the back seat. He yanked at her slacks breaking all the buttons and causing her slacks to fall to her feet. As he placed his penis in her vagina he warned her to keep quiet. After nearly 10 minutes had elapsed, she struggled to unlock the door, but defendant struck her three or four times. She heard glass breaking a moment later and saw Chicago police officer Nathaniel Brown and two other police officers. She was taken to the police station and later to Cook County Hospital where she was examined by a doctor. She briefly told the doctor what had occurred and he wrote down information on a sheet of paper. Subsequent to the date in question, she has received several threatening phone calls. Nathaniel Brown testified for the State:

He is a Chicago police officer and had worked the 8 A.M. to 4 P.M. shift on the date in question. At approximately 2 A.M. he was parked facing east in front of his home at 3342 West Polk Street about to go to a local bar. The street was brightly ilhiminated. He observed defendant, who was walking eastbound on the south side of Polk, cross the street and approach the prosecutrix. The witness turned his car around and drove west on Polk at approximately 20 m.p.h. Defendant passed in front of his car, walked up to where the prosecutrix stood alongside her car and took hold of her pocketbook. He had a knife in his hand. The witness circled the block stopping 15 to 75 feet from the comer, approximately 100 feet east of the prosecutrix’s parked car. He observed that defendant had his hand in her back, apparently forcing her back into her automobile. He followed defendant and the prosecutrix as they drove west six to eight blocks and parked in a vacant lot at 3937 West Lexington. The witness then drove to the Fillmore police station to obtain assistance. He drove back alone to the vicinity of the vacant lot and, when no assistance was forthcoming, drove back to the police station. He again returned to the vacant lot, this time accompanied by two Chicago police investigators. The three walked over to the parked car. The doors were locked. He observed defendant in the back seat of the car, on top of the prosecutrix. The investigating officers identified themselves. Defendant, who was naked from the waist down, jumped into the front seat and tried to put on his pants. The prosecutrix twice tried to open the door, but was knocked back by defendant. When defendant attempted to start the car, the witness picked up a rock, broke the glass, opened the door and pulled defendant from the car. After placing defendant under arrest, the investigators searched the car and found a knife. The witness did not recall the investigators finding any alcoholic beverages in the car.

On cross-examination, the witness admitted that he had not worked on the date in question.

Defendant in his own behalf testified:

On the date in question, at approximately 1:20 A.M. he was walking east on Polk Street on his way to the elevated trains. No one was on the street and no cars drove down Polk Street. He observed the prosecu-trix attempting to remove a large chair from the rear of her automobile. She called to him and asked if he would help her. He puUed the chair out of the back seat and, at her direction placed it in her yard. He returned to where she stood by the car, and after finding that she needed no other assistance, announced that he was on his way to the train station. She asked him if he drank, and when he replied affirmatively, she said she had a fifth of “J B.” in the front seat of her automobile. He declined a drink, but accepted her offer to drive him to the train. They entered the car and he drove west on Polk Street, turned north on St. Louis and turned east into a gangway until they arrived at the intersection of another gangway into which he backed the car so that the prosecutrix could urinate. While he waited for her return, he had a couple of swallows from her bottle of liquor. When she returned to the car, she climbed into the back seat, removed her pants, and made it obvious what she expected of defendant. She was wearing a dress. He climbed into the back seat, but before he could remove his clothing, there was a frantic knocking at the window. He saw a white man and a black man in plain clothing. They did not identify themselves. Although the back doors of the vehicle were locked, the front doors were not. The black man knocked out the front window and placed him under arrest. Defendant denied that he had forced her into the vehicle or that he had sexual intercourse with her. He admitted that he was armed that morning with a knife, but denied threatening her with it. Defendant also admitted telephoning the prosecutrix on two separate occasions to ask why she had accused him of raping her. She allegedly told him that she had panicked when she saw the police officer since he lived in the vicinity and had been stopping by her house. She further told defendant that she was sorry for having falsely accused him of rape, that all she wanted was her car window fixed and that if he brought $65 to court, she would drop the charges. Defendant also admitted writing a letter to the prosecutrix.

OPINION

Defendant first contends that he was not proven guilty beyond a reasonable doubt. The thrust of his argument is that the prosecutrix’s testimony is not clear and convincing and not corroborated by credible testimony, or factual evidence. Defendant has highlighted certain testimony of the prosecutrix arguing that her allegation of rape is improbable in light of the place, her manner and the apparel she was wearing and that it is unlikely that she struggled to escape. He notes that no evidence, either clothing, police reports or medical records, corroborates her testimony. Defendant asserts that Officer Brown’s testimony is not credible noting that neither the prosecutrix nor defendant observed any traffic or pedestrians at the time of the alleged abduction. Furthermore, he calls to our attention the improbability that he could have jumped into the front seat, struggled to put on his pants and at the same time prevented the prosecutrix from unlocking the doors. Defendant argues that the evidence supports his testimony that the prosecutrix consented to sexual intercourse and that they were interrupted prior to the act.

Reviewing courts have a special duty to carefully examine the evidence in rape cases. But in doing so the court may not encroach upon the function of the trier of fact to weigh credibility and otherwise assess the evidence presented. That evidence is conflicting will not justify a reversal of a finding of the trier of fact. (People v. Reese, 54 Ill.2d 51, 294 N.E.2d 288.) In order to sustain a conviction of rape, the testimony of the complaining witness must be clear and convincing or substantially corroborated by some other facts, evidence or circumstances. (People v. Stagg, 29 Ill.2d 415, 194 N.E.2d 342; People v. Sims, 5 Ill.App.3d 727, 283 N.E.2d 906.) A reviewing court will not disturb a verdict or reverse a judgment of conviction unless the evidence is so palpably contrary to verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt of guilt of the accused. People v. Sumner, 43 Ill.2d 228, 252 N.E.2d 534.

Here, complaining witness’ testimony was clear, convincing and corroborated by other testimony and evidence. She testified that defendant approached her from the rear, threatened her with a knife and forced her into the car. They drove to a vacant lot where he forced her into the back seat, yanked down her slacks, ripped off her underwear and forced her to have sexual intercourse. Corroborating these events was Officer Brown who saw defendant cross the street and seize complain-anfs pocketbook. He also noted defendant had a knife in his hand. Officer Brown followed defendant and complainant as they drove to a vacant lot where the rape took place. He observed that defendant was naked from the waist down. Defendant was arrested and a subsequent search of the car revealed a knife which defendant admitted owning. In view of this testimony and the corroborating evidence, we find defendant’s argument that he was not proven guilty beyond a reasonable doubt without merit.

Defendant next contends that he was denied due process of law when the trial court considered the presence of the arresting police officers at the trial in arriving at the determination of his guilt. The record indicates that after entering defendant’s sentence, and in response to defendant’s comment on the propriety of the decision, the trial judge stated:

“This is without a doubt, a situation in which there is no doubt this woman was telling the truth # * plus there are still officers waiting to testify. This is the way I looked at it. It certainly proved this beyond a reasonable doubt. And I don’t think the sentence is excessive.” (Emphasis added.)

Defendant argues that this statement indicates that the court improperly considered the potential testimony of tihe two arresting officers which, he asserts, is a denial of due process of law in that it deprives defendant of his right to confront tihe witnesses against him.

Clearly, a trial judge sitting as the trier of fact is limited to the record before him, and it is a denial of due process of law to consider matters outside the record. (People v. Thunberg, 412 Ill. 565, 107 N.E. 2d 843; People v. Rivers, 410 Ill. 410, 102 N.E.2d 303.) However, a presumption exists in Illinois law that the trial judge, when sitting as trier of fact, considers only admissible evidence, and that all incompetent evidence is disregarded in reaching his decision. (People v. Robinson, 30 Ill.2d 437, 197 N.E.2d 45.) This presumption is rebutted :only when it affirmatively appears that the trial court was misled or improperly influenced as would be indicated by a judgment or sentence contrary to the law or the evidence. See People v. Grodkiewicz, 16 Ill.2d 192, 157 N.E.2d 16; People v. Smith, 55 Ill.App.2d 480, 204 N.E.2d 577; People v. Jackson, 95 Ill.App.2d 193, 238 N.E.2d 196; People v. Moore, 95 Ill. App.2d 89, 238 N.E.2d 67.

In People v. Quinn, 2 Ill.App.3d 341, 276 N.E.2d 379, Quinn argued that a dialogue between the trial court and defense counsel illustrated that the trial judge, in his thought processes, considered a pre-trial admission in finding defendant guilty even though the admission had been suppressed. The appellate court held, inter alia, that the record did not affirmatively indicate that the inadmissible evidence was considered by the court in reaching its decision.

In the instant case, the judge’s objected-to comment was made after the finding of guilt, after the hearing of evidence in aggravation and mitigation of the sentence, and after the entry of the sentence. In its complete context, the trial judge’s comment indicates that he was convinced beyond a reasonable doubt of defendant’s guilt by testimony elicited from the prosecutrix. When such testimony is found by the trier of fact to be clear and convincing, it will by itself sustain a conviction of rape. In our view, the trial judge’s reference to the presence and availability of the police officers was surplusage that had no effect on his determination. At the very least, we do not find it affirmatively shown that the court considered evidence outside the record.

Defendant has cited People v. Wallenberg, 24 Ill.2d 350, 181 N.E.. 2d 143. In Wallenberg, it was held that the trial judge cannot use his; own personal knowledge to contradict important testimony offered by the defense. Defendant’s refuge in that decision is misplaced for here there has been no imput of personal knowledge on the part of the trial judge into the proceedings to contradict defense testimony. We also-distinguish those cases where the trial judge heard and undoubtedly considered inadmissible evidence in reaching his determination. E.g., People v. McDonald, 46 Ill.2d 92, 263 N.E.2d 75; People v. Jones, 18 Ill.App.3d 198, 309 N.E.2d 776; People v. Vine, 7 Ill.App.3d 515, 288 N.E.2d 69; People v. De Groot, 108 Ill.App.2d 1, 247 N.E.2d 177; People v. Stewart, 130 Ill.App.2d 623, 264 N.E.2d 557.

Defendant’s final contention is that his sentence is excessive. Although the sentence imposed falls within the limitations prescribed by statute (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8 — I), defendant urges that we exercise our discretionary power to reduce his sentence. (Ill. Rev. Stat. 1971, ch. 110A, par. 615 (b).) Normally, the trial court is given wide latitude in the imposition of the sentence since it is in the best position to determine the circumstances, to weigh credibility, and to evaluate the record made at the hearing in aggravation and mitigation. (People v. Short, 4 Ill.App.3d 832, 281 N.E.2d 783.) This court will disturb that sentence only where the penalty constitutes a great departure from the fundamental law and its spirit and purpose, or is out of proportion to the nature of the offense. (People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) These principles have not been violated here.

Accordingly, the judgment of the circuit court is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE SCOTT

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Alexander Lewis Woodall, Defendant-Appellee.
    (No. 73-42;
    Third District
    May 20, 1974.

      Rehearing denied September 11, 1974.

    Edward P. Drolet, State’s Attorney, of Kankakee, for the People.
    Edward G. Vogt, of Kankakee, for appellee.
   Mr. PRESIDING JUSTICE SCOTT

delivered the opinion of the court:

Alexander Lewis Woodall, the defendant, was indicted by a grand jury of Kankakee County for the offenses of burglary and armed robbery. After trial by jury the defendant was found guilty of both offenses. Thereafter the defendant perfected an appeal to this court which reversed the judgment of conviction of the circuit court of Kankakee County and ordered the case remanded for a new trial. (See People v. Woodall, 131 Ill.App.2d 662, 264 N.E.2d 303.) The defendant was again tried before a jury and on October 21, 1971, the jury returned a verdict of guilty as to the offenses of burglary and armed robbery as charged in the indictment.

On October 27, 1971, the defendant in a post-trial motion moved for judgment notwithstanding the verdict and in the alternative for a new trial. After hearing on the motion the trial court denied the motion for judgment notwithstanding the verdict but ordered a new trial. Thereafter on April 3, 1972, the defendant filed a motion to dismiss the indictment on the ground the defendant had been placed in prior jeopardy by his trial on the indictment. The trial court entered an order dismissing the indictment and an appeal by the People is taken from that order.

It is the contention of the People that the trial court exceeded its powers in ordering a dismissal of the indictment and that the trial court’s order granting the defendant a new trial did not have the effect of placing him in double jeopardy as the result of having undergone a previous trial in which a judgment guilty verdict was entered and a conviction imposed thereon.

It should be noted that after the defendant’s first conviction which was reversed and his case remanded by this court, that among the grounds for such reversal it was stated by this court that “where from the entire record there is a reasonable doubt as to the guilt of accused judgment of conviction should not be permitted to stand.” (See People v. Woodall, 131 Ill.App.2d 662, 264 N.E.2d 303.) As we have stated, the instant appeal results from conviction of the defendant after a retrial and the People appeal from an order of the trial court striking the indictment. Again it should be noted that tire trial judge predicated this action upon his determination that the evidence adduced during trial was insufficient to warrant a conviction.

The pertinent facts relating to the offenses of armed robbery and burglary allegedly committed by the defendant were set forth by this court in People v. Woodall, 131 Ill.App.2d 662, 264 N.E.2d 303. In a memorandum filed by the trial court after the defendant had been retried the trial judge noted that in this court’s opinion reversing the defendant’s first conviction several discrepancies and inconsistencies in the evidence were noted but that this court did not consider the evidence totally insufficient to convict and that therefore there was a remandment with directions for a new trial. In the same memorandum the trial court made the observation that the People’s case was stronger in the first trial than it was in the second. We do not deem it necessary to make an analyzation of the evidence adduced dining the second trial, but it is suffice to say that from the record it is clear that the trial court’s observation was correct. In regard to identification of the defendant as being the robber or burglar the record is fraught with inconsistencies and discrepancies.

In dismissing the indictment against the defendant on the grounds of double jeopardy the trial court relied upon as authority to do so section 3 — 4 of our Criminal Code:

"(a) A prosecution is barred if the defendant was formerly prosecuted for the same offense, based upon the same facts, if such former prosecution:
(1) Resulted in either a conviction or an acquittal or in a determination that the evidence was insufficient to warrant a conviction; or s * *. Ill. Rev. Stat. 1971, ch. 38, sec. 3 — 4(a)(1).

For authority to dismiss the indictment against the defendant the trial court relied upon section 114 — 1 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, sec. 114 — 1). This statutory provision sets forth 10 grounds upon which a trial court may dismiss an indictment against a defendant. In the instant case it is apparent that subsection (a)(2) of this statutory provision was relied upon by the trial court when the order was entered dismissing the indictment against the defendant. That subsection provides as follows:

“(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
(1) * * *
(2) The prosecution of the offense is barred by Sections 3 — 3 through 3 — 8 of the ‘Criminal Code of 1961’, approved July 28, 1961, as heretofore and hereafter amended;” Ill. Rev. Stat. 1971, ch. 38, sec. 114 — 1(a)(2).

The People argue that there is no authority to dismiss an indictment on the grounds that the State failed to prove a defendant guilty beyond reasonable doubt; however, this argument is not applicable in that the indictment against the defendant was dismissed since further prosecution would result in placing him in double jeopardy. We agree with the result achieved by the trial court which was to end prosecution of the defendant based upon a determination that to do otherwise would be to place him in double jeopardy.

In arriving at the conclusion that the trial court properly found that there should be an end to the prosecution of the defendant we rely upon the rationale set forth in the case of People v. Brown, 99 Ill.App.2d 281, 292, 241 N.E.2d 653. In Brown the reviewing court tersely presented the issue which is like the one in the instant case and its determination of the same, when it was stated:

“Thus, the issue now presented is whether the state should be allowed a second chance to meet its burden of proof in a case in which (1) it had failed to adduce sufficient evidence to support a conviction at the trial, and (2) no material evidence offered by the State had been erroneously excluded or stricken. We are convinced that the State is not entitled to this kind of opportunity to rehabilitate its case at the expense of the defendant’s right to acquittal on the evidence which the State did see fit to present.”

While the case of Brown was not referred to our State Supreme Court in a case where the evidence was held insufficient to sustain a conviction for involuntary manslaughter reversed the judgment of the trial court and held that since the trial placed defendant in jeopardy and the error is the failure of the evidence to support the charge, there is no basis to order a new trial. (People v. McCoy, 44 Ill.2d 458, 256 N.E.2d 449.) See also People v. Hammond, 18 Ill.App.3d 693, 310 N.E.2d 485.

We believe that the foregoing cited authority supports the trial court’s finding that the defendant if retried would have been placed in double jeopardy. In Brown the reviewing court denied the trial court a second chance to rehabilitate its case while in the instant case the People are asking for a third chance and while we do not deem it to be material, there is no argument presented by the State that in a third trial of the defendant the evidence would be new or different from that produced in the preceding trials. To hold otherwise would be violative of the Fifth Amendment that no person “shall be subject for the same offense to be put in jeopardy of life or limb.” (U.S. Const., amend. V.) While there may be lacking any specific statutory authority for the trial court to direct a judgment of acquittal it is our opinion that such court does inherently possess such power and that this case could have been resolved in that manner; however the trial court chose a different procedure which effectively ended the prosecution as it should have been.

We note that the People strenuously argue that since the defendant by his own motion obtained an order granting him a new trial he can not thereof complain of double jeopardy after such motion is granted. The People cite several cases in support of this proposition but we do not deem such authority applicable. We agree with the observations contained in the trial court’s memorandum that the defendant in the instant case first asked for a judgment notwithstanding the verdict and in the alternative a new trial and therefore he should not be penalized because he did not limit his motion to his first choice which was a demand for complete relief which a judgment notwithstanding the verdict would have given him if a motion for the same had been granted. It is apparent from the record that the trial court entertained serious doubts as to whether our Criminal Code permitted relief in the form of a judgment notwithstanding the verdict. We likewise fail to find any authority for relief based upon such procedure. It is obvious that the trial court believed that the prosecution of the defendant should be terminated and we agree. The only question is as to what procedure should be followed and as we have previously indicated, we believe that the better practice would be for the trial court to enter a judgment of acquittal.

For the reasons set forth the judgment of the circuit court of Kankakee County dismissing the indictment against the defendant is affirmed.

Affirmed.

ALLOY and DIXON, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    Emma Galler, Individually, as Trustee, and as Ex’rx of the Last Will and Testament of Benjamin A. Galler, Deceased, Plaintiff-Appellant, v. Rose Galler et al., Individually, and as Ex’rx of the Estate of Isadore A. Galler, Deceased, Defendants-Appellees.
    (No. 58639;
    First District (5th Division)
    June 21, 1974.

      Modified upon denial of rehearing September 6, 1974.

      Arvey, Hodes and Mantynband, of Chicago (Sidney R. Zatz and Jack H. Oppenheim, of counsel), for appellant.
    Mayer, Brown & Platt, of Chicago (Patrick W. O’Brien and Thomas N. Jersild, of counsel), for appellees.
   Mr. JUSTICE LORENZ

delivered the opinion of the court as modified upon denial of petition for rehearing:

Plaintiff appeals from a finding that Isadore Caller’s estate need not account to the Galler Drug Company for salaries he received during the years 1958 to February, 1965. Defendants cross-appeal from the order requiring Aaron Galler to account to the company for his increased salary paid from September, 1957, to December, 1965. Plaintiff contends that Isadore’s $42,000 annual salary paid each year following Benjamin Caller’s death in December, 1957, was not authorized and was excessive compensation for his services to the company. Defendants contend that Aaron’s salary, although increased without authority from $15,000 to $20,000 during the years 1956 thru 1965, was nevertheless, the fair market value for his services to the company for that period. Also in dispute is whether interest should be assessed on any monies ordered to be repaid.

The background to this appeal can be briefly stated. In March, 1954, Benjamin and Isadore Galler, founders and shareholders of 95 percent of the issued and outstanding shares in the Galler Drug Company, conceived of a shareholders’ agreement to assure their immediate families of financial protection and to provide for equal control in the corporation upon their death. The agreement was signed in July, 1955, by plaintiff and her husband Benjamin, and defendant Rose Galler and her husband Isadore. Although Benjamin was seriously ill throughout most of 1955 and, in fact, never returned to his corporate duties, he nevertheless continued to receive a $42,000 annual salary until his death in December, 1957. Isadore was also receiving $42,000 annually almost until his death in 1965. Isadore’s son Aaron was employed by the company mainly as the supervisor of its warehouse. In September, 1956, Aaron was appointed president of the company for a term of 1 year and he increased his salary to $20,000. Plaintiff filed suit when, after Benjamin’s death in December, 1957, Isadore and Aaron excluded her from the operation of the business and refused to honor the 1955 shareholders’ agreement.

An order for specific performance and accounting was entered by the trial court in 1962. The appellate court in 1964 reversed the order for specific performance, affirmed in part the order for accounting and modified the order awarding master’s fees. (45 Ill.App.2d 452, 196 N.E.2d 5.) The supreme court reversed the appellate court’s orders with respect to specific performance and accounting, affirmed the finding that the master’s fees were excessive, and upheld the trial court’s order. (32 Ill. 2d 16, 203 N.E.2d 577.) The action was remanded for the accounting proceedings.

A deadlock of the directors over salaries to be received after 1965 was adjudicated in an earlier appeal. 95 Ill.App.2d 340, 238 N.E.2d 274.

The present dispute involves Isadore’s and Aaron’s salaries prior to February 11,1965, when the supreme court’s order became effective. The accounting period in question for Aaron begins on September 25, 1956, when he increased his salary from $15,000 to $20,000. The accounting period in question for Isadore begins after Benjamin’s death in December, 1957, when Isadore continued to receive $42,000 annually. The supreme court’s directive to the trial court with respect to these issues was twofold. First, Isadore and Aaron were required to “account for all monies received by them from the company since September 25, 1956, in excess of that theretofore authorized.” Secondly, the supreme court affirmed the trial court’s 1962 decree that Isadore and Aaron be allowed “fair compensation to be determined by the [trial] court, for services rendered by them to the corporation during said period, with the burden upon them to prove the fair market value of any such services.”

On remand, a hearing was held before a master to determine these issues. In January, 1971, he issued his report finding that neither Isadore’s $42,000 salary nor Aaron’s $20,000 salary was authorized by either informal arrangement or by “proper directors” for the periods in question. He further determined that the fair market value of Isadore’s and Aaron’s annual services to the corporation for the periods in question was $10,000 and $15,000 respectively. The master, therefore, recommended that Isadore’s estate repay the Company $226,666 plus interest and Aaron repay $41,666 plus interest.

The trial judge filed a memorandum opinion and entered orders on November 14, 1972, wherein he overruled the master’s finding as to Isadore and adopted the finding as to Aaron, but without interest. Plaintiff and defendants have both appealed from those orders.

OPINION

Plaintiff challenges the trial court’s finding that Isadore properly drew a $42,000 annual salary from the date of Benjamin’s death until February 11, 1965. She argues that: (1) the salary was not authorized by “proper directors” nor by an informal agreement between Benjamin and Isadore; and (2) the salary was grossly in excess of the fair market value for the services Isadore rendered during this period.

Defendants do not maintain that “proper directors” authorized Isadore’s $42,000 salary. Rather, they narrow the issue to whether Isadore was authorized to receive this salary after the death of Benjamin by reason of the informal agreement existing prior to Benjamin’s death whereby both brothers took equal salaries of $42,000 annually. The supreme court in this very case determined that formal corporate meetings are not necessary to authorize officers’ salaries in a closely held corporation. Nevertheless, the record does not support defendants’ contention that the brothers’ informal agreement in effect prior to Benjamin’s death in December, 1957, was even an informal authorization for Isadore to receive $42,000 annually after the death of Benjamin without any corresponding payment to a member of the Benjamin Galler family. On the contrary, the evidence indicates that Isadore’s salary during the 7 years in question here violated (1) the brothers’ previous relationship, and (2) the clear import of the 1955 agreement.

The brothers’ previous relationship was a close association. From 1919 to 1924 Benjamin and Isadore were equal partners in the Galler Drug Company. In 1924 the business was incorporated under the Illinois Business Corporation Act with each brother owning one-half of the outstanding 220 shares. They continued to operate the business as though partners, receiving equal salaries by mutual assent rather than by formal corporate authorization. Benjamins continued receipt, as corporate president, of $42,000 annual salary from February, 1955, until his death in December, 1957, even though he was unable to perform his corporate duties during this period, is further evidence of this intent. A fundamental limitation in this arrangement is that upon the death of either brother, the element of mutual assent is necessarily lacking, and the survivor, without manifestly clear contrary evidence, is prevented from acting or benefiting unilaterally. Isadore’s continued receipt of the same salary upon the death of Benjamin without the quid pro quo for his brother’s family, is an alteration of the past arrangement, and was without authorization.

Furthermore, the clear import of the 1955 shareholders’ agreement is that the partnership-like arrangement was intended to remain after the death of either Benjamin or Isadore. While not specifically addressing itself to salaries, the agreement provides that upon the death of either Benjamin or Isadore, four directors are to be elected; two from Isadore’s family and two from Benjamin’s family. The officers and their salaries are voted upon by the directors. Dividends are required to be paid provided $500,000 earned surplus is maintained. It may be inferred that this agreement sought to replace a deceased brother’s position as an officer with members of his family, thereby permitting them to share equally in the company’s earnings, including salaries, a significant means of distributing the corporate profits. This inference is not negated by the fact that no provision in the 1955 agreement requires equality of salaries between the family branches.

The effect of defendants’ refusal to implement the 1955 shareholders’ agreement highlights the fact that there could not have been any authorization for Isadore’s salary after December, 1957. This effect can best be observed by comparing the 7 years in question here with the period subsequent to 1965. In 1965, as a result of the supreme court’s opinion, the shareholders held an election and each family elected two directors who in turn elected two officers. Aaron Galler and Emanuel Galler, as president and treasurer, respectively, represented the Isadore Galler family, and Emma Galler and her son Gerald, as secretary and vice-president respectively, represented the Benjamin Galler family. The officers’ salaries amounted to $37,500 for each family, which, had this sum been paid after Benjamin’s death, would have provided each family with a salary income aggregating $262,500 for the 7-year period. Instead, Isadore’s family received $434,000 in salaries during the same period while Benjamins family received no salary income. We find such a result violated the spirit and the mandate of the 1955 agreement and belies defendants’ claim that Benjamin’s and Isadore’s informal agreement was an authorization for Isadore alone to receive future salaries of $42,000 annually after Benjamin’s death.

Defendants maintain that the question of Isadore’s authorization with respect to salaries he received during the 7-year period in question has, in effect, been answered by the supreme court. The supreme court’s opinion, modified upon defendant’s petition for rehearing, limited defendants’ accounting to monies “in excess of that theretofore [September 25, 1956] authorized.” Defendants take the simplistic position that all this court should do is determine what salaries were authorized prior to September 25, 1956. Since Isadore received $42,000 prior to that date, defendants argue that a continuation of the same salary after that date had been “theretofore authorized.” We disagree. The supreme court’s directive, in our view, required not only a determination that there was a previous authorization, but also the extent thereof. The prior authorization must be considered in the context of Isadore’s and Benjamin’s arrangement of sharing monies equally. Benjamin’s death in December, 1957, altered this arrangement and terminated the authorization.

Defendants alternatively argue that the supreme court did not intend that Isadore account for the salaries he received prior to 1965. They note that the supreme court’s opinion approves of the appellate court’s finding that only Aaron need account. The specific language states, “the questions as to salary which tire Appellate Court held were improperly increased became one of fact to be determined by the trial court.” (32 Ill.2d at 34.) Defendants infer from the singular use of “salary” in the quoted language and the fact that the appellate court found Isadore’s salary proper that the supreme court viewed Isadore’s salary as authorized. We find the quoted language too ambiguous to draw such an inference. First, the verb in that sentence (“were « * * increased”) is plural and therefore cannot be reconciled with the singular subject. Secondly, the judgment of the appellate court, except as it related to master’s fees, was “reversed, set aside and wholly for nothing esteemed” by the supreme court’s order. Finally, the record before this court affords us the opportunity to draw contrary inferences. For example, defendant’s petition for rehearing in the supreme court stated that the “Salaries drawn by Isadore and Aaron prior to the September, 1956 meeting [$42,000 and $15,000 respectively] had been authorized at previous meetings to which no objection has been made.” Defendants concluded that “Under these circumstances, any accounting order other than an order directing Aaron to account for salaries received in excess of $15,000, is not justified.” The supreme court, however, did not agree with this conclusion thus arguably creating the opposite inference. In any event, we are not prepared to adopt either inference.

Plaintiff further contends that Isadore’s $42,000 salary was excessive compensation for the services he performed during the 7-year-period in question. The parties agree that under the 1962 trial court’s decree as affirmed by the supreme court, Isadore is entitled to receive the fair market value of his services. The disagreement is over the evaluation of those services. The master, after hearing evidence, found that the value of Isadore’s services was not in excess of $10,000 annuaUy. The trial judge in his memorandum opinion overruled the master and found that Isadore’s $42,000 salary was justified on two bases: (1) that salaries which were reasonable prior to the death of Benjamin Galler do not become unreasonable upon his death; and (2) that services performed in a closely held corporation cannot be measured on a scale with the open labor market and that it is therefore “not unusual to pay an elderly founder of a business, who through many years helped to build the enterprise, a salary far in excess of his services to the business entity.”

The two justifications relied on by the trial judge are not relevant to a determination of the fair market value of Isadore’s services to the company. The $42,000 salary taken in conjunction with the 1955 close corporation agreement between the two living and mutuaHy consenting parties, does not necessarily represent the fair market value of the parties’ services. It certainly then can have no bearing on the fair market value of a party’s services in later years when there no longer is mutual assent. Also, the fact that Isadore was founder of this close corporation does not inure to his benefit and cannot be considered in the determination of his fair market value to the company.

The relevant inquiry of this court is whether the work Isadore and Aaron performed during their iHegal control benefited the company. The record indicates that in 1958, Isadore was 73 years old, that he worked 6 days a week, 12 hours a day and that he worked almost up to his death in 1965 at the age of 80. Due to his advanced age he was spared much of the strenuous work and what work he did perform was clerical in nature. Most of the responsibilities that he had undertaken in developing the business were now performed by others.

The master found that the fair market value of Isadore’s services to the company did not exceed $10,000 annually. This determination was overruled by the trial judge. In Meyer v. Levy, 249 Ill.App. 408, 420, the court stated:

“The record discloses that the master heard the testimony of all the witnesses, which the chancellor did not, and therefore the master was better able, than are we or the chancellor, to determine the credibility of the testimony of the several witnesses, and where such testimony was in dispute the master was better able to judge as to which witnesses were more worthy of credit and to give credit accordingly. The chancellor and this court have but the cold and unresponsive record upon which to come to a conclusion as to the credibility of the several witnesses, and a chancellor as well as a court of review should be slow in disturbing the conclusions of the master upon the facts, unless it can be said that the master’s conclusions were clearly contrary to the probative force of the evidence.”

On tire whole, the record supports the master’s determination. Accordingly, we hold that Isadore’s estate must account to the Galler Drug Company for $226,666 in salaries he received for the years 1958 to 1965.

We now direct our attention to defendants’ cross appeal of the order requiring Aaron to account for $5,000 per year in increased salary taken between September 25, 1956, and February 11, 1965. Defendants do not dispute that there was no specific authority for Aaron’s $20,000 salary, but argue that such sum and not $15,000 per year was fair compensation for services rendered to the corporation. The trial judge only determined that the salary was unauthorized. The master, however, found that Aaron’s services were worth $15,000 per year.

The rule is well established in Illinois that when the finding of the master who heard the testimony is confirmed by the trial court, such finding will not be disturbed unless it is against the manifest weight of the evidence. Tarpoff v. Karandjeff, 51 Ill.App.2d 454, 201 N.E.2d 549; Franklin County Building Assn v. Smith, 260 Ill.App. 315.

In the petition for rehearing defendant Aaron emphasizes the uncon-tradicted testimony he gave. However, we believe, as did the master, that it was self-serving, not corroborated by any officer or employee of defendant and incapable of being contradicted by plaintiff who was excluded from the place of business.

The record discloses that prior to September 25,1956, Aaron earned $15,000 per annum in his principal'job as supervisor of the warehouse. After becoming president, he performed a variety of duties, few of an executive nature. The key executive positions of sales manager, credit manager and general manager continued to be operated by long-time employees. These men earned approximately $17,000 annually. Aaron testified that he supervised the decisions made by these management people. Comparing the apparent expertise of these employees with Aarons past experience, we find his self-serving testimony somewhat unlikely. It is noteworthy that neither these management people nor any other employees were called to substantiate Aarons claim to exercising such executive functions. With the limited exception of one bank officer, Aarons testimony regarding his value and service to the company is markedly lacking in corroboration.

Defendants have argued that the uncontroverted evidence points to the fact that defendants presented four witnesses while plaintiff called on one. We agree with the master’s response to the same argument wherein he noted:

“But the evidence is undisputed that Emma Galler was physically excluded from the premises of the Galler Drag Company during the entire period for which the accounting was ordered, while the heads of departments retained their lucrative positions and were beholden to Aaron and Isadore for the continuation of their jobs. Accordingly, no witnesses upon whom she could rely were available to her. * * * There was no burden on Emma Galler to make any proof in the accounting, and, as stated above, the burden of proof which was on defendants to justify the monies taken by them, was not sustained.”

We, therefore, conclude that the finding of the master, confirmed by the trial court, was not against the manifest weight of the evidence. Aaron must account to the Galler Drug Company for $41,666 in increased salaries for the period in question.

The only remaining issue is whether Isadora’s estate and Aaron should pay interest on these monies. A court of equity assesses interest when warranted by equitable considerations. (McKey v. McCoid, 298 Ill. 566, 132 N.E. 233; Groome v. Freyn Engineering Co., 374 Ill. 113, 28 N.E.2d 274.) Neither the master’s report recommending interest nor the trial judge’s memorandum opinion and order disallowing interest expressed reasons which governed their decisions. Our view is that the dispute over salaries is a by-product of Isadora’s and Aaron’s actions in violating the 1955 agreement — actions that the supreme court characterized as “clearly inequitable” — and, as such, warrants assessing defendants interest.

Accordingly, the order of the circuit court requiring Aaron Galler to account to the Galler Drug Company for the sum of $5,000 per annum for each of the years, and the prorated fractions of years from September 25, 1956, through February 11, 1965, or $41,666, is affirmed as modified and remanded with directions to assess interest. The order finding that Isadore Galler had satisfied the judgment of the supreme court directing him to account is reversed and the cause is remanded with directions to enter an order requiring the Isadore Galler estate to repay the Galler Drug Company $226,666 plus interest.

Affirmed as modified as to Aaron Galler and remanded with directions; reversed and remanded with directions as to Isadore Caller’s estate.

SULLIVAN, P. J., and DRUCKER, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Williams, Defendant-Appellant.
    (No. 59548;
    First District (5th Division)
    August 9, 1974.

      James J. Doherty, Public Defender, of Chicago (Shelvin Singer and Linda D. Woloshin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Linda West Conley, Assistant State’s Attorneys, and Ferdinand M. Minelli, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Helen Dowby, Defendant-Appellant.
    (No. 58351;
    First District (1st Division)
    August 5, 1974.

      Paul Bradley and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Alan W. Brothers, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant was found guilty of murder (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1(a)(2)) and was sentenced to a term of 40 to 100 years. She appeals and raises the following issues: (1) whether the trial court erred in denying her motion for a substitution of judges; (2) whether the trial court erred when it refused to submit to the jury her tendered instructions on voluntary manslaughter and self-defense; (3) whether the trial court erred in finding that she was proven guilty beyond a reasonable doubt; (4) whether she was denied a fair trial by the introduction of allegedly irrelevant and prejudicial testimony; and (5) whether the sentence she received was excessive. We conclude that the court should have submitted the instructions tendered on self-defense and therefore reverse and remand without reaching the other questions presented.

On December 30, 1970, the grand jury returned an indictment charging the defendant with the murder of Joseph Martin. She entered a plea of not guilty and the case was assigned to Judge Wilson. Her motion for a substitution of judges (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 5(c)) was denied after a hearing.

The following witnesses testified at her jury trial. Mrs. Lela Johnson and Mrs. Irene Smith testified for the State. Both stated that they were employed by the AmVets store located at 715 East 47th Street. On October 1, 1970, both were alone in the front portion of the store near the register. At approximately 3:30 P.M., Joseph Martin, the deceased, entered the store and began talking to Mrs. Smith who was standing behind the counter. Mrs. Johnson was standing behind her. Mr. Martin was standing in front of the counter. The women talked with him for approximately 20 minutes. Lighting conditions in the store were very good — die store had fluorescent lights and it was still light outside. Both women testified that at approximately 3:45 P.M. the defendant accompanied by two boys walked into the store and asked for the security guard. After Mrs. Johnson told her tiiat he was not there, the defendant replied that “some * * * witii hah- on his face called the police on her.” Mrs. Johnson replied that she did not know what the defendant was talking about. The defendant then turned to Mr. Martin, who had said nothing, and said, “You got hair on your face, * * * I am going to kill you.” Martin answered, “Ma’am, I don’t even know you.” The defendant then grabbed a purse from one of the boys behind her and pulled out a gun. As the defendant waved the gun around, Mrs. Johnson backed up a few feet, but Mrs. Smith remained at the register. Although Mrs. Johnson backed up, she stated that she never turned her back on the scene. At this point the defendant was about one foot from Mr. Martin. She then lowered the gun and fired a shot hitting Martin in the leg. Martin went behind the counter and knelt down. Defendant then leaned over the counter and shot him a second time — in the neck. She then turned and ran out of the store leaving him lying in a pool of blood behind the counter. Both Mrs. Johnson and Mrs. Smith' testified that they had a clear view of the incident and that no one else had a gun.

Mrs. Johnson called the police. She and some other individuals used blankets and rags to stop the bleeding. They also went outside to get some dirt to put on the wounds because someone had told them that dirt would stop the bleeding. Martin was subsequently taken to Provident Hospital by squad car. Later he was transferred to County Hospital where he stayed about a week. The bullet in his neck was not removed. Following his release from the hospital, his neck and leg became swollen. He was readmitted to County Hospital on November 8, 1970, and died there on November 19,1970.

Dr. Kearns, a pathologist for the Coroner of Cook County, testified for the State. His specialty is the study of the cause and effect of external violence such as bullet wounds. He performed a pathological examination on the deceased on November 19, 1970, and found marked swelling, especially in the chest and neck. He removed a bullet from the neck. He testified that the swelling had been caused by infection which had developed from the bullet wound. Although he could not give an exact opinion as to whether the bullet should have been removed earlier during treatment of the deceased, he did say that special surgery would have been required to remove it. He also stated that in his opinion decedent’s death “resulted from the shock and hemorrhaging caused by the bullet wound in the neck.”

Defendant was arrested on the morning following the shooting when Mrs. Johnson and Mrs. Smith recognized her walking down the street across from the store and promptly summoned a police officer.

Defendant testified that early in the morning of the shooting she went out to borrow some money to pay for her daughter’s hearing aid. She said she met the deceased in a bar and drank with him for 3 or 4 hours. She did not know him but had seen him before on several occasions. After telling him of her problem, he told her he would help her and gave her $25. Following this conversation, they went to a hotel and had sexual intercourse several times. Some time later they emerged from the hotel. At his insistence, she returned the money to him in turn for his promise to return later with more money. She waited for him, but he did not return. She stated that she proceeded to look for him and finally found him outside the Am Vets store. They argued and he struck her knocking her against a car fender. He then turned and walked into the store. About 15 minutes later, she followed him. The argument continued and when he drew back his fist she pulled a gun out of her purse and shot toward the floor intending only to scare him. He grabbed her arm causing the gun to fire again. At this point she claimed that the security guard entered the store and grabbed her. Together they ran out of the store. He then took her to an empty building where she hid until dark. Later that night, she met him in a tavern and they had a few drinks. The next day she was arrested across the street from the store while on her way to pick up a television set.

On cross-examination she admitted lying under oath at the inquest into the death of the deceased where she had told a story substantially different from the one she told at trial. She claimed that she was upset during the inquest.

The security guard was called by the State in rebuttal. He denied having been in the store on the afternoon of the shooting and denied having seen the defendant during the month of October.

Defendant submitted instructions on voluntary manslaughter and self-defense but the judge refused to give them to the jury. The jury found the defendant guilty of murder and she was sentenced to a term of 40 to 100 years. This appeal followed.

Passing directly to the defendant’s contention that the trial court committed reversible error in refusing to submit to the jury her tendered instruction on self-defense, it is, of course, well settled that a refusal to give such an instruction is not error where there is no evidence to support such a theory (People v. Dukes (1960), 19 Ill.2d 532, 539, 169 N.E.2d 84, cert, denied, 365 U.S. 830, 5 L.Ed. 2d 707, 81 S.Ct. 716) but it is equally well settled that the jury should be instructed on any theory of defense if there is believable evidence to support it. People v. Scalisi (1926), 324 Ill. 131,145,154 N.E.2d 715.

The defendant testified that when she first cursed the deceased outside the store, he struck her “upside the head” and knocked her against a car fender. After she had followed him into the store and asked why he had cheated her, he turned around and “drawed [sic] back his fist at [her].” She “thought he was going to hit [her] again” so she took a gun from her purse and shot it at the floor. The deceased grabbed her arm and the gun went off again. The controlling question then becomes: Could a fact-finder conclude that she reasonably believed that she was in danger of suffering great bodily harm when she took out the gun and fired it?

The term “great bodily harm” appears in our aggravated battery statute (Ill. Rev. Stat. 1969, ch. 38, par. 12 — 4) and it has repeatedly been held that what constitutes great bodily harm under that statute is a question of fact. (People v. Hunter (1973), 14 Ill.App.3d 879, 887, 303 N.E.2d 482; and cases there cited.) Analogously, “great bodily harm,” as used in our self-defense statute (Ill. Rev. Stat. 1969, ch. 38, par. 7 — 1), is also a question of fact. The precise wording of our statute is that a person is

“justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony.”

One might suspect that a mere assault with the fists would not justify the use of a deadly weapon but as long ago as 1878 that proposition was rejected by our supreme court in Davis v. People (1878), 88 Ill. 350, 351, where the following instruction was given:

“ ‘6. Although the deceased may have menaced and threatened to assault, and did strike the defendant with his hand or fists, the defendant was not justified in resorting to a deadly weapon, if it has been proved he did resort to such weapon, and using it in such a manner as to produce death. Before a person can be justified in resorting to a deadly weapon, and using it in a deadly manner, it must appear that he was in imminent peril of death or great bodily harm, or that a reasonable man, under like circumstances, would have reasonable grounds to believe that he was in peril of losing his life or sustaining great bodily harm, and that he could not otherwise reasonably have saved his life, or his person from great bodily harm!”

In reversing a manslaughter conviction, the court, at pages 351-352, said:

“There was error in giving the first clause of this instruction. It is absolute in form, in no way qualified by any reference to the last clause. It virtually declares that, under the circumstances of the assault which was here made upon the defendant, he was not justified in resorting to the use of a deadly weapon.
It takes from the jury all consideration of whether the defendant was in imminent peril of receiving great bodily harm, or had reasonable ground to so believe, and that the use of a deadly weapon in the manner stated was necessary to prevent his receiving great bodily harm, and the court itself decides this question of fact for the jury in the negative, by telling them that an attack with the fists did not justify the use of a deadly weapon in such a manner as to produce death. That is not to be affirmed as matter of law. And certainly it can not be asserted that the evidence was not sufficient to raise a fair question upon the subject for the consideration of the jury.”

While it is true that two apparently disinterested witnesses testified for the State that the defendant not only threatened to kill Martin but deliberately shot him twice, the second time when he was on the floor behind a counter which she had to lean over to shoot him, and that a jury very likely might not accept her diametrically opposed version, her credibility is for the jury and can only be resolved by it, not by the court.

We therefore reverse the judgment and remand the cause for another trial.

When and if she is tried again, we are of the opinion that her attorney should submit (and the court should give) an instruction and manslaughter verdict based on section 9 — 2(b) (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 2(b)), which provides in substance that one who kiHs under an unreasonable belief that he is in danger of losing his life or suffering great bodily harm is guilty of voluntary manslaughter. A jury in this case could have so found.

As the case was tried, the instruction and manslaughter verdict actuaUy tendered were based on section 9 — 2(a) relating to sudden and intense passion arising from serious provocation, which theory was not supported by the evidence. We do not mean to suggest that the trial court was obliged to submit sua sponte such forms (People v. Meeks (1973), 11 Ill.App.3d 973, 981, 297 N.E.2d 705), but we do suggest that, on the new trial, her counsel do so.

Reversed and remanded.

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


author: Mr. PRESIDING JUSTICE EGAN

text:
      In re Interest of Donald Lamb, a Minor—(The People of the State of Illinois, Petitioner-Appellee, v. Donald Lamb, Respondent-Appellant).
    (No. 58765;
    First District (1st Division)
    August 5, 1974.

      James J; Doherty, Public Defender, of Chicago (Thomas J. Knitter, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the comt:

The respondent, Donald Lamb, then age 16, was found delinquent within the provisions of the Juvenile Court Act (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 2) and committed to the Department of Corrections, Juvenile Division. The court’s declaration of delinquency was based upon a finding that on April 22, 1972, Lamb committed the offense of murder in violation of section 9 — 1(a)(2) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 9 — 1(a) (2)). The respondent’s contentions are that his oral and written confessions were improperly admitted and the evidence did not establish his guilt under the theory of accountability.

Charlene Ruffin, the wife of the deceased Benny Ruffin, last saw her husband on April 22, 1972, at about 6 P.M. going around the corner of 21st Street and Trumbull in Chicago about a block from her home. The next time she saw him was around 11:15 that night when someone brought him to her back door. He “had blood all over” and told her that three boys tried to rob him. He did not know their names, but he recognized one of them from around the area. One of the boys later arrested with the respondent was Robert Bruce, who lived across the street from the deceased, who died on April 23, due to hemorrhaging from a stab wound of the neck.

Emma Atkins was visting a friend at 1919 South Trumbull. At about 11:30 P.M., she was on her way out of the house and saw men scuffling on the ground. One was on top of the other, choking him. As she and her friend stood on the porch looking at them, one of the men got up and ran through the alley saying, “Please don’t shoot me.” Mrs. Atkins heard a shot but did not see who fired it. When the two men were scuffling another man was standing over them. She could not identify any of the parties involved and stated the whole incident lasted about a total of 5 minutes.

Lamb was arrested on May 25, 1972, at 8 P.M. by Officers Soil and Blackley and taken to Area Four Homicide. On May 26, at 9:45 P.M., a statement was taken by Assistant State’s Attorney John Gervasi in the presence of the respondent’s mother and several police officers. The respondent later initialed each page and signed the last page. In the statement the respondent said the following:

He met Robert Bruce and Patrick Thatch at the comer of 21st and Trumbull, and he showed them a “blank” gun. Bruce thought it was a real one and asked him if he was afraid to stick someone up. When he told Bmce he was not, they went north on Trumbull “for the purpose of trying to find someone to stick up, or rob.” They saw a man staggering in an alley near 1916 South Trumbull and intended to rob him. Thatch acted as a lookout; Bruce walked up to the man and Lamb “was not far behind.” Bmce asked the man for a quarter, and when the man said he did not have one, Bruce knocked him down and jumped on him. The man was screaming and hollering, and when Bruce got up off the man, the respondent saw a knife in Bruce’s hand. As the man was getting up holding his neck with both hands, the respondent pulled the gun out and aimed it at him. The man said, “Please don’t shoot,” and the respondent fired the gun in the air. Brace had ran away when the man got up off the ground. The respondent saw two older ladies on a porch, and he then ran away.

The respondent first contends that the statement should not have been admitted because he had been illegally arrested. This argument puts before us an issue that is recurring with increasing frequency: What is the test to be applied to verbal evidence following an illegal arrest? See, e.g., People v. Brown, 56 Ill.2d 312, 307 N.E.2d 356; In re Interest of Tucker, 20 Ill.App.3d 377, 314 N.E.2d 276; People v. Brown, 15 Ill.App.3d 606, 304 N.E.2d 662 (abstract opinion); People v. Browder, 13 Ill.App.3d 198, 300 N.E.2d 511 (abstract opinion).

The first reason for rejecting the respondent’s argument arises from his faffure to advance in the trial court an Hlegal arrest as ground for suppressing his statement. In his motion to suppress, the respondent alleged as grounds that he had not been given the Miranda warnings and that the statements “were the direct or indirect result of either physical or mental coercion and were therefore involuntary.” At no time was it ever suggested to the trial court that the respondent sought to suppress his confessions on the ground that he had been illegally arrested. We judge, therefore, that the issue has been waived. People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432; People v. Harris, 105 Ill.App.2d 305, 245 N.E.2d 80.

Waiver aside, we judge that the respondent’s position is untenable. No Illinois case has been cited by the respondent, nor do we believe one exists, which holds what the respondent urges. And in People v. McFarland, 386 Ill. 122, 129, 53 N.E.2d 884, the court said expressly: “The fact that a prisoner is under illegal arrest does not of itself make a confession incompetent. People v. Klyczek, 307 Ill. 150.”

The case most often cited in support of arguments similar to that of the respondent here is Wong Sun v. United States, 371 U.S. 471, 9 L.Ed.2d 441, 83 S.Ct. 407. In that case federal narcotics agents made, the majority held, an illegal invasion of the defendant’s home and arrested him in his bedroom where he was told that an informer had accused him of selling narcotics. He denied this but told the agents the name of a man who did sell narcotics and where he could be found. He also told them that he and the man he named had used heroin the night before. The Supreme Court held that his statement in the bedroom should not have been admitted.

Long before Wong Sun, our supreme court decided People v. DeLuca (1931), 343 Ill. 269, 271, 175 N.E. 370. In that case the police illegally searched the defendant and seized four hen pheasants, the possession of which constituted a violation of the game laws. An officer testified that at the time of the search the defendant admitted that he killed the birds. The court said: “[B]ut this admission was in connection with the unlawful search, and if the evidence obtained by the unlawful search should have been suppressed, the admission, which grew out of the search and was developed by it and was a part of it, should not have been considered.” (Emphasis added.) It clearly appears in De Luca that the admission of the confession would have the practical effect of admitting the physical evidence illegally seized.

We do not believe that Wong Sun is authority for the sweeping rule that an illegal arrest, per se, renders any subsequent statement inadmissible. First, the government made a concession, damaging to its position, that the defendant’s declarations in the bedroom were “to be excluded if they [were] held to be ‘fruits’ of the agents’ unlawful action.” (371 U.S. at 484.) Second, the Court held only that “verbal evidence which derives so immediately from an unlawful entry and an unauthorized arrest as the officers’ action in [that case was] no less the ‘fruit’ of official illegality than the more common tangible fruits of the unwarranted intrusion.” (371 U.S. at 485.) And last, the Court expressly avoided taking the position urged on us in this case: “We need not hold that all evidence is ‘fruit of the poisonous tree’ simply because it would not have come to light but for the illegal actions of the police. Rather, the more apt question in such a case is ‘whether, granting establishment of the primary illegality, the evidence to which instant objection is made has been come at by exploitation of that illegality or instead by means sufficiently distinguishable to be purged of the primary taint.’ [Citation.]” (371 U.S. at 487-488.)

In People v. Brown, 56 Ill.2d 312, 317, 307 N.E.2d 356, the defendant was concededly arrested illegally and, after receiving Miranda warnings, made a confession. The supreme court, in discussing Wong Sun, held that the Miranda warnings “served to break the causal connection between the illegal arrest and the giving of the statements,” thus impliedly rejecting the “but for” argument advanced here. In the case before us, Miranda warnings were given before any statement was made.

This court recently discussed Wong Sun and its impact on the exclusionary rule in People v. Pettis, 12 Ill.App.3d 123, 298 N.E.2d 372. In that case, the defendant was arrested for burglary, and a police photograph taken. Before trial he was identified from his picture by a robbery victim who subsequently identified him in person. At the trial for burglary the trial court held that his arrest was illegal. Based on that ruling the trial court conducting the robbery trial suppressed the photograph and subsequent identification, adopting the defendant’s reasoning that but for the illegal arrest for the first offense his picture would not have been taken. We reversed the trial court’s ruling and refused to make the “but for” test an extension of the exclusionary rule.

The purpose of the rule is to deter the lawless actions of police (Linkletter v. Walker, 381 U.S. 618, 637; Mapp v. Ohio, 367 U.S. 643, 648; Elkins v. United States, 364 U.S. 206, 222); but the rule has long had its critics, and its efficacy as a deterrent has been questioned. (See the dissenting opinion of Mr. Chief Justice Burger in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 411; Spiotto, Search and Seizure: an Emperical Study of the Exclusionary Rule, and its Alternatives, 2 Journal of Legal Studies 243 (1973); Oaks, 37 U„ Chi. L. Rev. 665.) And in Fahy v. Connecticut, 375 U.S. 85, the court held that the admission of illegally seized evidence could be harmless error where there was no reasonable possibility its admission had contributed to the defendant’s conviction, thus seemingly ignoring the underlying deterrent rationale. Oaks, supra, at 671, m 24.

But, accepting the validity of the deterrent theory, no one would dispute the contention that illegal detention is to be condemned and deterred with equal vigor, if not greater, as an illegal arrest. Yet Illinois courts have consistently held that illegal detention, per se, does not render a confession inadmissible but, rather, that it is but one “circumstance to be considered as to the voluntary character” of the confession. (People v. Hall, 413 Ill. 615, 623, 110 N.E.2d 249. See also People v. Kees, 32 Ill.2d 299, 205 N.E.2d 729; People v. LaFrana, 4 Ill.2d 261, 122 N.E.2d 583.) The point to be made is that the extent of judicial suppression of evidence in order to deter illegal police conduct must be bounded by reason; it must not be a “punitive and extravagant application of the exclusionary rule” (dissenting opinion of Mr. Justice White in Coolidge v. New Hampshire, 403 U.S. 443, 517); and to hold that all evidence following an illegal arrest is ipso facto inadmissible would deprive law enforcement officers of not only the “fruit of the poisonous tree,” but, to extend the metaphor, the wood, the leaves and even the shade as well. We believe, therefore, that the better rule would regard an illegal arrest like an illegal detention, a circumstance to be considered as to the voluntary character of the statement; and the arrest here will be so considered in the subsequent discussion of the respondent’s contention that his confession was not voluntary.

The respondent next contends that the Miranda warnings were inadequate and there was no showing that he understood or knowingly waived them.

Officer Hensley testified that he advised the respondent an hour after he was arrested of his “constitutional rights about self-incrimination” by reading the warnings from a card and that the defendant, when asked if he understood them, said that he did.

Officer Deloughry testified that at 8:15 A.M. on May 26, he advised the respondent of his constitutional rights “by reading them from a plastic card which was issued by the Confederation of Police.” He too testified that he asked the respondent if he understood what had been read to him and the respondent answered that he did. Immediately after this conversation the respondent went with the officer to 19th and Trumbull and made an oral statement that he, Bruce and Thatch had planned to rob a man staggering in the alley, that he fired a shot at the man and that Bruce stabbed him. So far as the record discloses this was the first statement of the respondent implicating him in the killing.

Neither side asked either officer to specify what was read from the cards, nor were the cards introduced. No objection was made to the form of the testimony of either officer although an objection was later made to the shorthand reporter testifying that the respondent had been advised of his “rights.”

The respondent testified that after he was arrested and taken to Area Four Homicide, Officer Soil and his partner questioned him and he told them he had nothing to do with the killing. After he was handcuffed and hung up over ceff bars he was questioned again by Officer Soil, who, he said, “told me my rights.” He too was not asked to specify what Officer Soil told him his rights were, other than a question by his attorney: “You mean right to remain silent?” The record reflects that no audible response was made to the question.

Youth Officer O’Driscoll testified that he advised the respondent of his constitutional rights at 9 P.M. on the 26th of May by reading them from a handbook which he had before him in court. When the State’s Attorney asked him of what rights he informed the respondent, his answer, we conclude, was an accurate recitation of the specific warnings required by Miranda. The respondent stated that he understood them and that he had been advised of them before. The written statement, which, contrary to the respondent’s assertion here, was admitted into evidence, reflects that Assistant State’s Attorney Gervasi referred to the specific warnings made to the respondent before he began the statement and he repeated them which, again we conclude, were the specific warnings required by Miranda. The respondent was then asked by Gervasi if he wished to give up those rights and if he did so “knowing and understanding what [he was] giving up.” To each question the respondent said, “Yes.”

The record amply justifies the trial court’s conclusions that the respondent had received the warnings required by Miranda and that he knowingly and understandingly waived them. (People v. Burbank, 53 Ill.2d 261, 291 N.E.2d 161; People v. Higgins, 50 Ill.2d 221, 278 N.E.2d 68.) The respondent is not now in a position to argue that the conclusory testimony of the officers was insufficient since he never objected to their testimony nor did he argue its insufficiency in the trial court. In fact, in the summation on the motion to suppress, the respondent’s attorney told the trial court: “[T]hey read off a card, and they read the correct rights supposed to be given to the minor respondent.”

The respondent has cited a number of cases holding that police are required to desist in their questioning when a prisoner indicates he wishes to remain silent. We fail to see the applicabilty of those cases since there is no proof in the record that the respondent did so in this case. After the warnings he originally told them he had nothing to do with the killing. See People v. Brooks, 51 Ill.2d 156, 281 N.E.2d 326.

The defendant next contends that his statements were involuntary because they were obtained as a result of physical and mental coercion. Certain facts are established: The respondent, who was not attending school, saw Officer Soil at 7:30 A.M., 12 hours after he had been arrested. Soil asked him if he was hungry, and the respondent requested Polish sausage and pop. The officers brought him the food and a package of cigarettes. Before he saw Officer Soil that’ morning, he had slept in a chair with one hand cuffed to the wall. Two hours after he was arrested the police notified his mother, who told them she would have to wait until morning. She called the following morning and was told by the police “to get down there and see what it was all about.” She did not go down to the station until 2:50 P.M. Before she saw her son he had gone with Officers Hensley and Deloughry on the morning of the 26th to the place where the man was stabbed. He made an oral statement which corresponded to that later given to Assistant State’s Attorney Gervasi.

Later, his mother went with him to the State’s Attorney’s office at 26th and California where she told her son “if he had done anything wrong to tell the truth.” She went back to the Maxwell Street station with her son and was driven home by the police. At about 8 P.M. she was brought back to the station and was present when her son made a statement to Gervasi. His picture was taken in her presence at the time the statement was made.

The respondent testified that after he was arrested he denied any knowledge of the killing and that he had been at a dance with a girl. Officer Soil told him he was lying and hung him up by handcuffs over a bar in the window where he remained on tiptoes for a half hour. (On direct examination he said Officer Blackley hung him up; on cross-examination he said Soil did it.) Officer Soil told him his “rights” and the respondent continued to deny any knowledge of the killing. He told them his “partner” was Patrick Thatch. The following morning Officers Soil and Deloughry took him looking for Thatch at Fagan High School. The officers did not ask him to relate how the murder happened, but he showed them where Ronnie Bruce and the deceased struggled on the ground and where Thatch stood as lookout. He also told them that the deceased staggered down the alley, that the deceased said “Don’t shoot,” and that he fired the gun. He testified that he made up the story.

Later he saw his mother at 26th and California and told her that he had been strung up the night before. (The only conversation that she testified to was her telling him to tell the truth.) At the State’s Attorney’s office, he told Gervasi he knew nothing about the killing. He was taken back to the station where he was again handcuffed and hung up by Officers Hensley and Deloughry for a half hour. After they struck him twice in the stomach and Hensley told him he would “frame” him with a gun, he agreed to sign a statement. The respondent testified that he told Gervasi what Hensley had told him to say.

Officers Soil, Hensley and Deloughry all denied ever mistreating the respondent in any way. Edward Stabrawa, the shorthand reporter, and Officer O’Driscoll testified that they saw no marks or bruises on the respondent and denied that he was mistreated at any time in their presence.

The competency of a confession is for the trial court alone to decide and its decision may not be disturbed on review unless it is manifestly against the weight of the evidence. (People v. Carter, 39 Ill. 2d 31, 38, 233 N.E.2d 393.) It is the totality of the circumstances surrounding the confession, and not any one of them, that is to be considered (People v. Nemke, 23 Ill.2d 591, 600, 179 N.E.2d 825); and the trial court need not be convinced of the voluntariness of the confession beyond a reasonable doubt. People v. Weger, 25 Ill.2d 370, 373, 185 N.E.2d 183.

This evidence establishes that the respondent was illegally detained, which does not per se render his confession inadmissible. (People v. Kees, 32 Ill.2d 299, 205 N.E.2d 729.) The evidence also establishes that the respondent was held overnight seated in a chair and handcuffed to a wall, disclosing a police procedure which is to be severely condemned. Since the respondent did not raise the question of an illegal arrest at the trial, we cannot say from a review of the record that the evidence supports his assertion here that the police did not have sufficient grounds to arrest him. Officer Soil testified that he and his partner were given information from Officers Triggs and Deloughry “which would indicate that Donald Lamb should be brought into the area and interrogated.” What that information was and whether it would justify his arrest we may only speculate.

On the other side, the evidence shows that he was informed of his rights early in the interrogation process; he was fed when and what he requested; he was permitted to see his mother, who was informed of his arrest shortly after it took place and who told him to tell the truth; he confessed orally approximately 12 hours after he was arrested; he was not questioned extensively or in relays; he made no complaints to the assistant State’s Attorney, and his assertions of mistreatment are contradicted by the police officers and the shorthand reporter, who testified that there were no marks or bruises on the respondent’s wrists. He was repeatedly informed of his rights, last by Assistant State’s Attorney Gervasi, before the written statement was taken in the presence of his mother. He had been arrested twice before. Under all the evidence, therefore, we cannot say that the trial court’s determination that the confessions were voluntarily made is against the manifest weight of the evidence. See People v. Higgins, 50 Ill.2d 221, 278 N.E.2d 68; People v. Hall, 38 Ill.2d 308, 231 N.E.2d 416; People v. Richardson, 32 Ill.2d 472, 207 N.E.2d 478.

The respondent next contends that the confession should not have been admitted because the State failed to produce all the material witnesses to the statement or to explain their absence. During the time he was in police custody, the following officers who had contact with the respondent were not called: Investigator Blackley was Soil’s partner and was identified by the respondent as the person who hung him over the bars; Investigator Sykes told Deloughry and Triggs that the respondent had told many different stories; Investigator Triggs was with Deloughry when the respondent made an oral confession on the morning of the 26th; Investigator Thomas was Hensley’s partner and Youth Officer Flanagan was assigned to Area Four, but the record does not show whether either was present at any time the respondent said he was abused or when he was questioned.

After both sides had rested on the motion to suppress, the court adjourned until the following morning at which time it was to hear arguments. The next morning the State was allowed, over objection, to reopen the proof to explain the absence of certain witnesses. The respondent’s objection was based on the fact that the motion was not timely and that the assistant State’s Attorney’s statements of the whereabouts of the witnesses was hearsay. The assistant State’s Attorney explained that Assistant State’s Attorney Gervasi was on trial, Officers Thomas and Flanagan were on furlough and Blackley and Triggs were testifying in other courtrooms.

Gervasi, Sykes, Thomas, Flanagan and Triggs were not required to be produced, since it is clear that none was present when the respondent was allegedly mistreated. (People v. Joe, 31 Ill.2d 220, 226, 201 N.E.2d 416; People v. Reksel, 125 Ill.App.2d 322, 261 N.E.2d 40.) Cf. People v. Sloss, 412 Ill. 61, 104 N.E.2d 807, where the supreme court held that the failure to call an assistant State’s Attorney was error since the defendant testified that he told the assistant State’s Attorney that he had been beaten.

The only witness whose testimony would meet the test of materiality on the voluntariness of the confession was Blackley, who, the record showed, was testifying in another comt. At the hearing the respondent’s attottiey argued that being on furlough was not a valid excuse for failure to call a witness, but added: “When you say he is prosecuting at 26th and California, to me that is a valid excuse. If he is testifying, two days of testifying is very questionable. If he is testifying in another branch, that, to me, is a good excuse.” Whether Blackley’s absence was sufficiently accounted for we need not decide because in our view the respondent’s statement in the trial court constituted a waiver of the argument here.

Section 114 — 11(d) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 11(d)) provides in part that on a motion to suppress a confession:

“Objection to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court.”

It is clear that failure to make a motion to suppress a confession in the trial court waives the question. (People v. McMath, 40 Ill.2d 388, 240 N.E.2d 593; People v. Sims, 32 Ill.2d 591, 208 N.E.2d 569.) This being so, there should be no doubt that a failure to make a specific objection on the ground that a material witness has not been called constitutes a waiver of that objection.

The function of an objection is to signify there is an issue of law and to give notice of the terms of the issue. (People v. Trefonas, 9 Ill.2d 92, 136 N.E.2d 817.) And the reason for requiring an objection to proof is to give the opposite party an opportunity to cure any defect. People v. White, 131 Ill.App.2d 652, 264 N.E.2d 228.

Who is a “material” witness is often debatable and uncertain. It may be the opinion of a prosecutor that a witness is not material, and he may rest without calling him. If an objection is then made, the trial court will perforce express his views on whether a particular uncalled witness is material. Under those circumstances the prosecutor should be given an opportunity to call that witness. He should not be placed in the position of making a subjective determination of whether a witness is material at the risk of being foreclosed from calling anyone who, after specific objection is made, is deemed material by the trial court. If any lawyer offered an exhibit and its admission was denied after objection on the ground that an improper foundation had been laid, who would say that he was forever barred from submitting additional foundation proof? It has been said before, and bears repeating, that a criminal trial is a search for the truth and is not a game.

We construe the remarks of the attorneys for the respondent to mean he was objecting to the failure to call the witnesses who were on furlough but was not objecting to the failure to call the person who was prosecuting (Gervasi) and the person who was testifying elsewhere (Blackley),

We disagree with the respondent’s contention that the remarks of his attorney were “gratuitous, irrelevant” observations. Instead, they were part of a spirited, detailed and comprehensive argument. And we also disagree with, the respondent’s contention that his right of confrontation was violated by the failure to call Blackley and that he has a constitutional right , to'have all material witnesses to his confession called. The rule is judge-made (People v. Sweeney, 304 Ill. 502, 136 N.E. 687, citing dictum in People v. Rogers, 303 Ill. 578, 136 N.E. 470), a practical, not a mechanical one, designed to assist the fact-finder in determining whether a defendant’s constitutional privilege against self-incrimination was abridged. People v. Jennings, 11 Ill.2d 610, 618, 144 N.E.2d 612; see also the special concurring opinion which criticizes the rule in People v. Sims, 21 Ill.2d at page 433.

The respondent’s last contention is that the State failed to prove that he was legally accountable for the killing. The evidence shows that he joined with two others for the purpose of committing robbery, that he pulled out a gun, which the deceased saw but did not know was “blank,” and that one of the other robbers stabbed and killed the deceased. The respondent was an active participant in the robbery attempt and not just a bystander. He is, under the law, clearly accountable. People v. Clark, 30 Ill.2d 67, 195 N.E.2d 157. People v. Rybka, 16 Ill.2d 394, 158 N.E.2d 17.

The judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE and HALLETT, JJ., concur.