author: Mr. JUSTICE McNAMARA

text:
      In re Application of the County Treasurer, Collector-Appellee.—(Stanley Papierz, Objector-Appellant.)
    (No. 59018;
    First District (3rd Division)
    January 23, 1975.
    Arvey, Hodes & Mantynband, of Chicago (J. Herzl Segal and Eugene L. Griffin, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner, Henry A. Hauser, and Catherine M. Ryan, Assistant State’s Attorneys, of counsel), for appellee.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court:

An application was made by the county collector of Cook County to the circuit court of Cook County for judgment and order of sale against certain real estate for nonpayment of taxes for the year 1970 and for determination of correct taxes where taxes were paid under protest. Taxpayer, Stanley Papierz, filed an objection to the application, alleging that the taxes were excessive. After a trial, the trial court dismissed the objection and entered judgment for collector. Objector appeals.

Prior to trial the collector moved to dismiss the objection on the ground that the objector had failed to exhaust his administrative remedies by his failure to file a complaint before the Board of Appeals of Cook County. The trial court found that the objector had failed to file a complaint with the Board of Appeals because the notice for quadrennial assessment dates had been published subsequent to the filing dates of the Board of Appeals. The court denied the motion to dismiss and ordered the cause to proceed to trial.

The evidence is undisputed. The property is located in the Village of LaGrange in Lyons Township. It consisted of 16 three-floor buildings containing twelve apartments each. The taxes levied on the property for the year 1970 amounted to $140,773. To support his claim of overassessment, objector presented expert testimony of the normal procedure employed by the assessor s office following a complaint of excessive valuation as to this class property. The office would require an income statement relating to the property for 1969, and then would establish assessed value at 25% of the total income. According to the witness, such a formula was uniformly applied. Objector introduced into evidence income tax returns for the subject property from 1968 through 1971. According to objector, proper application of the 25% rule would result in a tax $29,834.89 less than that actually imposed. He sought a refund of that amount.

At the conclusion of all the evidence, the trial judge again excused the filing of a complaint with the Board of Appeals for 1970, but nevertheless found no evidence of actual or constructive fraud in the making of the 1970 quadrennial assessment on the property. The court thereupon ordered that the objection be dismissed and judgment be entered for the collector in the amount of $0.00, all taxes having been paid.

Objector contends that the trial court erred in failing to find the tax assessment actually or constructively fraudulent or illegal. He further argues that he was denied due process by failure of the court to exercise the same powers of review over an excessive tax assessment as are held by the Board of Appeals.

We have elected to decide the present case on grounds other than those raised by the parties. Our authority to act in this manner is beyond dispute. Although Supreme Court Rule 341(e)(7) provides that points not argued are waived, this paragraph states an admonition to the parties and does not operate as a limitation upon the jurisdiction of tire court. Hux v. Raben (1967), 38 Ill.2d 223, 230 N.E.2d 831.

It is undisputed in the present case that the notice for quadrennial assessments was published subsequent to the filing dates for the Board of Appeals. It is also clear that objector relied upon this occurrence to excuse his failure to file a complaint with the Board and to waive his resort to seeking administrative relief. The trial court accepted this rationale by denying the collectors motion to dismiss. A recent decision of this court reveals that the court should have granted the collector’s motion.

In the case of In Re Application of Korzen (1974), 20 Ill.App.3d 531, 314 N.E.2d 593, the collector applied for judgment and order of sale against certain real property for delinquency in the payment of general taxes. The trial court granted collector’s motion to dismiss the objection on the basis of objector’s failure to exhaust administrative remedies. Although there, as here, objector contended that she should have been excused from pursuing administrative review before the Board because the assessment fist was published after the time for filing complaints with the Board had expired, we disagreed, stating at page 534:

“* * * Objector did not attempt to file a complaint with the Board of Appeals. She does not allege that she was prevented from filing a complaint by fraud, accident, or mistake. (People ex rel. Brittain v. Outwater, supra.) In the case of In re Application of County Collector, supra, objectors alleged that they appeared at the office of the Board of Appeals on five separate occasions to file a complaint but were given a ‘run around.’ Nevertheless the court held they could not file their objection to the excessive valuation for the first time in an application for judgment and order of sale. The court noted that objectors should have compelled the Board of Appeals to hear their complaint by means of a mandamus action.
In the instant case the record is devoid of any allegation that objector attempted to file a complaint with the Board of Appeals. A demand upon the Board of Appeals to consider the complaint in the first instance would have been appropriate. (See First National Bank v. Board of County Commissioners, 264 U.S. 450.) Mandamus was not yet necessary. See White v. Board of Appeals of Cook County, 45 Ill.2d 378, 259 N.E.2d 51.”

We reaffirm the reasoning and holding in Korzen. Consequently, collector’s motion to dismiss the objection should have been granted.

Accordingly, the judgment of the circuit court of Cook County entered in the favor of the collector is affirmed.

Judgment affirmed.

McGLOON, P. J., and MEJDA, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. Bryan Coldman, Petitioner-Appellant.
    (No. 60317;
    First District (3rd Division)
    January 23, 1975.
    Paul Bradley and Gordon Berry, both of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John F. Brennan, Assistant State’s Attorney, and William E. Bogner, Senior Law Student, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DEMPSEY

text:
    The Bank & Trust Company of Arlington Heights et al., Plaintiffs-Appellants, v. P. J. Cullerton et al., Defendants-Appellees.
    (No. 59719;
    First District (3rd Division)
    January 23, 1975.

      Weiner and Spak, of Chicago (Lawrence J. Weiner, John D. Norcross, and Michael Crane, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Sheldon Gardner, Paul P. Biebel, and Edna Selan Epstein, Assistant State’s Attorneys, of counsel), for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The Bank & Trust Company of Arlington Heights sought a refund of the 1971 personal-property taxes it had paid on shares of its stock, and declaratory and injunctive relief on behalf of itself and other state and national banking associations similarly situated. An amended complaint was dismissed, and the bank was given leave to file a second amended complaint. Instead, it chose to stand on its amended complaint and appealed. Neither an abstract nor excerpts from the record have been filed as required by Rules 342(b) and 342(e). Ill. Rev. Stat. 1973, ch. 110A, pars. 342(b), 342(e).

The bank’s original complaint alleged that the holders of its stock were taxed on the value of their shares in violation of section 76 of the Revenue Act (Ill. Rev. Stat. 1971, ch. 120, par. 557) and of the 1870 and 1970 Constitutions of Illinois (article IX-A (1870); article IX, section 5(b) (1970)); that P. J. Cullerton, the assessor of Cook County, assessed an ad valorem personal-property tax of $17,358.48 upon these shares and that Bernard J. Korzen, the county collector, demanded payment; that similar assessments and demands were made against other members of the class, and that the bank paid the tax and made repeated requests for a refund which were rejected. The complaint was amended to limit the refund demanded to the taxes assessed upon the shares not held by individuals. This was done to conform to a currently filed supreme court opinion, Lake Shore Auto Parts Co. v. Korzen (1973), 54 Ill.2d 237, 296 N.E.2d 342 (cert. denied, 414 U.S. 1039), which stated that bank stock was exempt from ad valorem taxation only when owned by a natural person or by two or more natural persons as joint tenants or tenants in common.

The Constitution of 1870, as amended by article IX-A, and the Constitution of 1970 prohibit the taxation by valuation of personal property owned by individuals. Section 76 of the Revenue Act states that shares of bank stock shall not be taxed “at a greater rate than is assessed upon any other moneyed capital in the hands of individual citizens of this State * * (Ill. Rev. Stat. 1973, ch. 120, par. 557.) It is the bank’s position that since individual citizens owning bank shares are no longer subject to a personal-property tax, nonindividuals should not be either, and it is therefore entitled to a refund of the 1971 personal-property taxes it paid on behalf of holders of its shares who were not individuals.

The defendants’ motion to strike and dismiss asserted, among the other reasons advanced for the dismissal, that the bank was not a proper party to bring the suit inasmuch as it was neither the actual taxpayer nor had it reimbursed the taxpayers. The defendants urge that same point in this court in support of the dismissal and, in addition, contend that no refund will lie to one making a tax payment unless it is paid under protest or duress, and since the amended complaint failed so to plead, it was properly dismissed. The bank filed no brief in reply to this second contention.

Although the second contention was not presented to the trial court, any point may be relied upon to support a judgment as long as a basis for such a point was before the court. Shaw v. Lorenz (1969), 42 Ill.2d 246, 246 N.E.2d 285; In re Estate of Waitkevich (1975), 25 Ill.App.3d 513. We will, therefore, consider both of the defendants’ contentions.

Section 76 of the Revenue Act requires that “[t]he stockholders of every kind of incorporated bank located within this State * # * shall be assessed and taxed upon the' value of their shares of stock therein, in the taxing district where such bank * * * is located * * (Ill. Rev. Stat. 1973, ch. 120, par. 557.) Section 77 of the same Act (Ill. Rev. Stat. 1973, ch. 120, par. 558) imposes a duty on banks to keep a complete and correct list of the names and addresses of, and the number of shares held by its stockholders, and to retain dividends belonging to them equal to the tax assessed upon their shares until it appears to the bank or its managing officers or officer that the tax has been paid. Officers who authorize the payment of dividends without withholding funds equal to the assessments are liable for the tax.

It is customary in Illinois for banks to be billed for the personal-property tax on the shares of their stock and for them to pay the tax on behalf of their stockholders. The primary liability for the tax, however, is on the stockholders and not on the bank. (People v. First National Bank of LaGrange (1933), 351 Ill. 435, 184 N.E. 645; Chicago Title & Trust Co. v. Centml Trust Co. of Illinois (1924), 312 Ill. 396, 144 N.E. 165.) A collector of taxes cannot maintain an action against a bank or its officers for the tax unless there has been a failure to comply with section 77. The collector’s right to maintain such an action is predicated upon dividends having been authorized by the bank’s board of directors and paid under the officers’ direction without the tax assessed against the shareholders having been paid. People ex rel. County Collector v. First National Bank (1965), 33 Ill.2d 457, 211 N.E.2d 713.

In Lincoln National Bank v. P. J. Cullerton (1974), 18 Ill.App.3d 953, 310 N.E.2d 845, two banks sought refunds on behalf of themselves and all other banks similarly situated of 1971 personal-property taxes they had paid on capital stock owned by their shareholders. They alleged that pursuant to longstanding custom, the assessor and collector of Cook County billed them for personal-property taxes on the value of the outstanding shares of stock owned by their shareholders; they paid these taxes from their general funds; they did not withhold dividends for the payments of the taxes and they were not reimbursed for the payments by their shareholders but, despite demand, the county treasurer refused to refund the amount paid. A motion to dismiss was filed by the defendants which asserted that the banks were not the actual taxpayers and, therefore, were not liable for the taxes. The trial court dismissed the complaint op the grounds that natural persons are the only taxpayers entitled to refunds of personal-property taxes and that the banks had paid the taxes as volunteers without legal obligation to do so. On appeal this court affirmed. Although the Lincoln National Bank case differs from the present one in two respects (the banks sought refunds of taxes on stock owned by individuals and the payments were made within the purview of section 195.01 of the Revenue Act, Ill. Rev. Stat. 1973, ch. 120, par. 676.01) the basic refund issue is substantially the same. Both the plaintiff and the defendants agreed that a refund should be made. They disagreed only as to the identity of the parties who should receive the refund. The question before the court, as in this case, was whether the county officials were obliged to make the refund to the banks who paid the taxes or to the actual owners of the property assessed. The court held that a refund to the bank would be grossly inequitable. Because of this ruling the court concluded that it was unnecessary to consider the second ground given by the trial court for the dismissal: the voluntary nature of the payments.

An apparently contrary view was expressed by this court in Kimball v. Corn Exchange National Bank (1878), 1 Ill.App. 209. Kimball was the tax collector of the town of South Chicago. The Com Exchange Bank sought to recover from him one-sixth of the taxes levied upon its capital stock for the year 1877. The appellate court held that this portion of the levied tax was collected without authority of law. However, it was held that the suit should have been brought in law not in equity; the trial court was reversed and the equity action was dismissed. While unnecessary to its decision, the court observed that the bank had the power to retain from dividends due its stockholders an amount sufficient to pay taxes legally levied upon their shares; that payments beyond the legally levied taxes were “made in its own wrong” and would be no defense to the demands of its stockholders for their dividends, and that the stockholders could not be charged for monies paid for an illegal tax. The court then stated: “This money being paid by the bank of its own wrong, must be held to be money paid out of the proper funds of the bank and not out of funds of its stockholders, and consequently, while in the hands of the collector it is the property of the bank, and it alone can bring suit to recover it back.” 1 Ill.App. 209, 217.

The plaintiff has seized upon the words “it alone can bring suit to recover it back” and asserts that the Kimball case is determinative of the present one. We do not read the Kimball decision in this fashion. First, the statement was merely incidental to the court’s determination of the cause. Second, in stating that the bank alone could recover the money paid to the collector, the court was referring to money erroneously paid by the bank, The court used the phrase “its own wrong” twice in its opinion and by it meant that portion of the tax which was illegally assessed and which the bank should not have paid. The case of Kimball v. Merchants’ Savings, Loan & Trust Co. (1878), 89 Ill. 611, cited by the plaintiff as affirming Kimball v. Corn Exchange National Bank, is a connected case dealing with the same personal-property tax but with a different party who wanted an injunction against that part of the tax which had not yet been collected.

The custom that prevails for banks to be billed and to pay personal-property taxes for its shareholders has been developed for the convenience of both banks and collectors. It enables a collector to obtain tax payments surely, quickly and from one source. It enables a bank to disburse dividends to its shareholders without exposing its managing officers to the contingent liability imposed by statute in the event shareholders do not pay the taxes themselves. A bank has the duty to retain as much of the dividends as necessary to pay any taxes levied upon its shares until it appears that the taxes have been paid; it has no other statutory duty. The money the Arlington Heights Bank paid to the county collector of Cook County was not the bank’s money but its shareholders and, therefore, the bank had no right to recover the money for its shareholders and had no standing to bring this action for a refund.

Even if the plaintiff bank had a theoretical right to a refund for the taxes paid on the stock owned by its nonindividual shareholders, it could not recover. To be entitled to a refund the bank would have had to pay the taxes under protest or duress. It did neither and its complaint alleged neither. The only allegation that might suggest duress was the one that demands had been made upon it for payment of the taxes. But this allegation, even under the motion to strike and dismiss which admitted all facts well pleaded, did not support the theory of legal duress.

In the absence of statutory provision, taxing authorities have no power to refund illegal taxes not paid under duress. (Snyderman v. Isaacs (1964), 31 Ill.2d 192, 201 N.E.2d 106; People ex rel. Sweitzer v. Orrington Co. (1935), 360 Ill. 289, 195 N.E. 642.) For a payment of taxes to be deemed under duress there must be some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting the payment over the person or property of the party making the payment, from which the latter has no reasonable means of immediate relief except by making the payment. (72 Am. Jur. 2d, State and Local Taxation § 1081 (1974).) To render a payment compulsory such pressure must be brought to bear upon the person paying as to interfere with the free enjoyment of his rights of person or property, and the compulsion must furnish the motive for the payment sought to be avoided. (School of Domestic Arts & Science v. Harding (1928), 331 Ill. 330, 163 N.E. 15.) The bank did not allege that it tried to avoid paying the tax assessed on its shares or state any reasons why it had no choice except to pay the tax. In fact, it acknowledged that only “secondary liability is imposed against Banks by statute in the event the shareholders do not pay the tax.” In the absence of essential factual allegations the complaint was properly stricken.

There is a third reason for sustaining the order of the trial court: the plaintiffs failure to file an abstract or excerpts from the record. This failure would warrant the dismissal of the appeal. Frederick Chusid & Company v. Collins Tuttle & Co. (1973), 10 Ill.App.3d 818, 295 N.E. 2d 74; Denenberg v. Prudence Mutual Casualty Co. (1970), 120 Ill.App. 2d 68, 256 N.E.2d 71.

The plaintiff did not argue on appeal the question of its rights independent of its right to a refund. A point not argued is waived. Ill. Rev. Stat. 1973, ch. 110A, par. 341(e)(7).

The order striking and dismissing the plaintiffs complaint is affirmed.

Affirmed.

McNAMARA and GOLDBERG, JJ., concur.


text:
      In re Estate of Josephine Trahey, Incompetent.—(Margaret Fitzpatrick, Petitioner-Appellant, v. James C. McLellan, Individually and as Conservator of the Estate of Josephine Trahey, Incompetent, et al., Respondents-Appellees.)
    (No. 59596;
    First District (3rd Division)
    January 23, 1975.

      John G. Spatuzza, Gerald M. Chapman, and Alan M. Polikoff, all of Chicago, for appellant.
    Paul R. Hoffman, of Chicago, for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

This action was brought by Margaret Fitzpatrick to recover funds which had been held in a joint account in her name and that of the deceased, Josephine Trahey. Her petition was denied and she has appealed.

On July 7, 1960, Josephine Trahey opened a joint account with the right of survivorship at the Drover’s Trust and Savings Bank with her brother John Conway and her nephew James McLellan. The account continued in their names until December 1970 and grew from the initial deposit of $5,906.99 to $32,519.03. In the intervening years Mrs. Trahey, a widow, lived with her younger brother, John. Her health gradually deteriorated, and cataracts developed in her eyes. In July 1970 an operation was performed on one eye. It was only partially successful, and her vision remained impaired.

On December 7,1970, when she was in her 89th year of life, she accompanied Margaret Fitzpatrick, who was married to a nephew of Mrs. Trahey’s deceased husband, to the Drover’s bank and transferred the funds from the Trahey-Conway-McLellan account to a new joint account in her name and that of Mrs. Fitzpatrick. Mrs. Fitzpatrick took possession of the passbook and $150 was withdrawn from the account that day.

In January 1971 Mrs. Trahey broke her hip and was hospitalized. She died on June 6. While she was in the hospital, her brother petitioned the probate court to appoint a conservator for her and her estate and nominated James McLellan. The petition was supported by a doctor’s affidavit which stated that she was confused, disoriented and incapable of managing her affairs. She was adjudicated an incompetent on February 24, and McLellan was appointed conservator. On the same day, a citation was directed to Mrs. Fitzpatrick for information about and discovery of personal property belonging to Mrs. Trahey’s estate. She was commanded to appear before the judge of the probate court on March 18 under threat of being punished for contempt. A few days after the citation was served, Mrs. Fitzpatrick and her husband called upon John Conway and turned the passbook over to him.

On March 4, McLellan filed a petition which alleged that Mrs. Trahey was incompetent when her funds were transferred from the first joint account to the second, and that she was induced by Mrs. Fitzpatrick to make the change. The petition stated that Mrs. Fitzpatrick had given the passbook to Conway; it requested that the balance in the second account be redeposited in the names of Mrs. Trahey, John Conway and James McLellan. The petition was granted and the funds were redeposited.

On March 18, 1971, the return date of the citation, the conservator’s attorney and the Fitzpatricks appeared in court, but at different times. Their versions of what took place were testified to at the hearing on the plaintiff’s petition. The attorney said that when the case was called he asked that the citation be dismissed because its purpose had been accomplished, and that it was dismissed. Mrs. Fitzpatrick testified that when her name was called she approached the bench and the judge read die citation. She informed him that she had brought the passbook to Conway, and the judge concluded the matter by saying that was probably why the other side did not show up.

There were no further developments in the case until 11 months later when Mrs. Fitzpatrick was granted leave to enter her appearance. Four weeks after this — on March 13, 1972 — she filed a petition which asserted that the order of March 4, 1971, improperly directed transfer of the funds from her account with Mrs. Trahey and she asked that the order be vacated. The petition alleged that the order was entered without prior notice to her; that she was frightened by the citation summons; that she was confused and without benefit of counsel when she surrendered the passbook; that she did not intend to relinquish her interest in the account, and that she had expected that the dispute between her and the conservator would be resolved on the return date of the citation. She took exception to tire conservator’s final account and asked for a hearing as provided for by the Probate Act (Ill. Rev. Stat. 1971, ch. 3, par. 187a) to determine her right to the money on deposit in the joint bank account on the day the order was entered.

The conservator’s motion to dismiss the petition was denied, and a hearing was held. At its conclusion the trial court found that Mrs. Trahey was incompetent at the time she opened the account with Mrs. Fitzpatrick. Mrs. Fitzpatrick acknowledges that the pivotal issue in her appeal is the court’s finding of incompetency, but she nevertheless argues that the court erred in not first passing on the validity of the order of March 4, 1971. She contends that this order (a) divested her of her property without a hearing and thus deprived her of due process of law, and (b) that there was no evidence that she knowingly waived her claim to the joint tenancy account.

The two contentions are intertwined. The argument of invalidity is based upon the conceded fact that no notice of the March 4 petition or hearing was served upon her. The respondents reply that notice was not necessary because she had relinquished all interest in the account before the March 4, 1971, hearing.

Upon being served with the citation, Mrs. Fitzpatrick called the attorney whose name appeared on the citation. He testified that she asked him what the citation was all about and whether she should retain a lawyer. He told her she should. A day later he returned a telephone call from her husband who said his wife claimed no interest in the account and asked to whom the passbook should be given. The Fitzpatricks disputed this testimony. Mrs. Fitzpatrick said she did not discuss the citation with the attorney. Mr. Fitzpatrick testified that the attorney instructed him to turn over the passbook.

John Conway testified that when the Fitzpatricks surrendered the passbook Mr. Fitzpatrick said, “We didn’t want any part of this anyhow, we have no interest in it.” Mrs. Fitzpatrick testified, “I gave him back his bank book,” but she added that nothing was said concerning her interest in the account.

The principle of “waiver” will be recognized whenever a party intentionally relinquishes a known right or acts in such a manner to warrant an inference of such relinquishment. (National Bank v. Newberg (1972), 7 Ill.App.3d 859, 289 N.E.2d 197; A-1 Cleaners & Dyers v. American Mutual Liability Insurance Co. (1940), 307 Ill.App.64, 30 N.E.2d 87.) From the above testimony, and the additional facts that the passbook was quickly surrendered in the face of a scheduled court proceeding and that Mrs. Fitzpatrick neither consulted nor engaged a lawyer to defend her right, if she thought she had one, in a $32,500 account, the trial court could have concluded that she voluntarily waived her interest in the account and that she had not demonstrated why a subsequent hearing, held without notice to her, should be declared void.

But apart from this, she is in no position to protest. She made no motion to vacate the order of March 4 and did not appeal it. It was a final order. It removed Mrs. Trahey’s money from her account with Mrs. Fitzpatrick and redeposited it in her account with Conway and Mc-Lellan. Mrs. Fitzpatrick attempts to circumvent her failure to appeal by asserting that her petition of March 13, 1972, filed 1 year after the order of which she complains, was actually a petition within the scope of section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72) and that the trial court erred in not treating it as such.

The petition was not a section 72 petition and it was not intended to be. It specifically stated that it sought relief under section 187a of the Probate Act. There was no explanation for die lack of diligence in filing the petition — and in truth, there could not be. If her surrender of the passbook and the impending citation proceeding did not alert Mrs. Fitzpatrick that she might be divested of tire account, the death of Mrs. Trahey in June 1971 was notice that she had been. An inquiry about the account at the Drovers Bank would have brought the response that it had been closed pursuant to the court order of March 4, 1971. The failure to allege and prove diligence is fatal to a section 72 petition; such a petition is not designed to excuse a petitioners own carelessness or mistake. Filosa v. Pecora (1974), 18 Ill.App.3d 123, 309 N.E.2d 356.

Moreover, the point concerning the possibility that the petition was within the scope of section 72 was raised for the first time in Mrs. Fitzpatrick’s reply brief. Points not argued in an appellant’s principal brief are waived and cannot be raised in the reply brief, in oral argument or in a petition for rehearing. Ill. Rev. Stat. 1971, ch. 110A, par. 341(e) (7).

At the hearing on the petition most of the testimony concerned Mrs. Trahey’s mental condition. Her brother testified that when she was in the hospital in July 1970 she talked strangely and imagined seeing a woman in her room who was not there. She talked about some men taking her to the basement. She tried to walk down a stairway at the hospital and had to be confined in bed. When she returned home she accused their housekeeper of stealing. She sat in a chair near a window and would ask about a little nun she imagined seeing outside in the rain, where there was no nun and no rain. She remarked every night about the beautiful lights she saw, when the only visible lights were those of automobiles. She frequently got up during the night and on occasion had to be restrained from going outside in her nightgown. Her nephew, a friend of hers and the husband of her niece all testified as to her lack of competency. They related incidents which tended to show the deterioration of her mind in the last few years of her life, and precipitately so after her hospitalization in July 1970, such as losing her train of thought during conversations, her nonrecognition of relatives and her confusion as to their relationship, her imagining seeing people on the street outside her home or on the steps of a nearby church when there were no such people there at all.

Three friends of Mrs. Trahey testified for the petitioner. One said that Mrs. Trahey’s physical condition — except for her lost eyesight — and her mental condition were the same in the final months of her life as they had been before. Another, who had not seen her between her eye operation and her death, but who had talked to her over the phone about once a week, testified that she conversed without rambling and her mental condition seemed the same as it always had been. A third friend, who had seen her at the Fitzpatrick home several times after the operation, testified that her physical appearance was the same as it always had been, her vision was improving, and that during these visits which lasted from 1 in the afternoon until 8:30 or 9 in the evening, she talked intelligently, carried on conversations as well as anyone and was in excellent mental condition.

The conflicting testimony posed a credibility question for the trial court which was resolved by its finding that the “evidence is clear and convincing that Josephine Trahey was mentally incompetent to terminate the bank account at Drovers National Bank identified as Account No. 270085 — 4, at the time of the alleged termination of the same, and further, was mentally incompetent to open a new account at Drovers National Bank in the name of Josephine Trahey and Margaret Fitzpatrick, which account is identified as Account No. 269117 at the time of the alleged opening of said account in December of 1970.”

The petitioner complains that the court erred in evaluating the testimony and drat its finding was against the manifest weight of the evidence; that the respondents failed to sustain the burden that was theirs of overcoming the legal presumption that Mrs. Trahey was sane; and that the evidence they did present about her old age, ill health, impaired eyesight and lapses of memory was not sufficient in either weight or quality to prove that she did not know what she was doing at the time she and the petitioner opened the joint account.

No witness testified as to Mrs. Trahey’s mental condition on the exact day the account was opened. Therefore, whether she was capable of understanding the nature of the transaction had to be deduced from the testimony concerning her physical weaknesses and mental incapabilities before and after that day. (Ergang v. Anderson (1941), 378 Ill. 312, 38 N.E.2d 26.) The testimony produced by the respondents showed that her decline in both capacities was rapid and continuous. By accepting this testimony, as was its right, the trial court could reasonably infer that on the day of the transfer she lacked the mental capacity to comprehend the consequences of her act which took her entire assets from the protective co-ownership of her blood relatives — with whom she had no discord and who had not disturbed the account in the 10 years of its existence — and transferred them to a person to whom she was not related by consanguinity — a transfer which did not come to light until weeks later when money was needed to defray the medical expenses arising from her broken hip. Although Mrs. Trahey was not adjudicated an incompetent until February 24, 1971, and there is a legal presumption that she was competent prior to the adjudication, and while illness and impairment of mind due to old age do not necessarily indicate so great a deterioration of capacity that a person is unable to understand the nature and effect of his actions or to protect his own interests, the trial court’s finding that Mrs. Trahey was unsound in mind and memory at the time the second account was opened on December 7, 1970, was not against the manifest weight of the evidence.

The petitioner stresses the presumption of a gift arising from Mrs. Trahey’s execution of the joint tenancy agreement, In Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill.2d 587, 591, 202 N.E.2d 470, the court stated:

'“We hold that an instrument creating a joint account under the statutes presumably speaks the whole truth; and, in order to go behind the terms of the agreement, the one claiming adversely thereto has the burden of establishing by clear and convincing evidence that a gift was not intended. This burden does not shift to the party claiming under the agreement.”

No evidence was introduced about the circumstances relating to the Trahey-Fitzpatrick account except the card bearing their signatures which provided that it was a joint account payable upon death to tire survivor. The petitioner argues that the presumption of donative intent created by the presentation of that card was not overcome. The presumption of donative intent is completely overcome if the donor was incompetent at the time of the alleged gift. This, in effect, was the decision of tire trial judge who cited the Murgic case in his memorandum opinion.

In finding that the evidence was clear and convincing that Mrs. Trahey was mentally incompetent to open the account in December 1970, the court could have taken into consideration, in addition to the testimony we have outlined, her signature on the account card. It is so illegible that a meaningful reproduction in this opinion is impossible. The signature, when contrasted to the one on the 1960 account card, is graphic evidence of her physical deterioration.

The judgment of the circuit court is affirmed.

Affirmed.

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


author: Mr. JUSTICE McNAMARA.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Williams et al., Defendants-Appellants.
    (No. 59646;
    First District (3rd Division)
    January 23, 1975.

      James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, and Paula R. Cozzi, Law Student, of counsel), for the People.
   Opinion by

Mr. JUSTICE McNAMARA.


text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Frank Ragusca et al., Defendants-Appellees.
    (Nos. 60396 to 60408 incl. cons.;
    First District (3rd Division)
    January 23, 1975.
   PER CURIAM.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael Polelle, Assistant State’s Attorneys, of counsel), for the People.

Francis E. Andrew, of Chicago, for appellees.


author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Darrell Cannon, Defendant-Appellant.
    (No. 57502;
    First District (5th Division)
    January 24, 1975.

      W. Mauldin Smith, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

On February 6, 1970, at approximately 2:30 P.M., Emanuel Lazar was shot and killed in his toy store located at 1708-10 East 79th Street in Chicago. Five days later defendant was arrested and charged with murder. He was tried before a jury, convicted and sentenced to a term of from 100 to 200 years. Six contentions are raised on appeal: (1) The search of defendant’s home which resulted in recovery of die murder weapon was unlawful, and therefore the gun should have been suppressed as evidence; (2) the court improperly admitted into evidence an inflammatory photograph that had no probative value; (3) it was error to allow an assistant State’s attorney who had testified at the suppression hearing to serve as a prosecutor at trial; (4) the State’s opening and closing arguments were improper; (5) the jury was improperly instructed; and (6) defendant’s sentence is excessive. The sufficiency of the evidence to prove defendant guilty beyond a reasonable doubt is not challenged.

Prior to trial defendant moved to suppress as evidence two guns and a wristwatch seized by police, and a hearing was held on this motion. These items were found in the apartment of defendant’s grandmother where he was living. It is undisputed that the police did not have a warrant to search the apartment.

Defendant testified that prior to his arrest he resided at 6157 South Kenwood with his grandmother. On February 11, 1970, at approximately 9:30 A.M., he was awakened by Officer Herbie Wells and Assistant State’s Attorney James Meltreger. He knew both Wells and Meltreger. They placed him under arrest and drove him to the Criminal Court Building. They told him that he had been implicated in the murder of a shopkeeper in South Shore. They did not advise him of his rights. Upon arriving at the Criminal Court Building he was taken to a second-floor office and questioned. There were perhaps five assistant State’s attorneys in the office. He was not allowed to malee a telephone call. At no time did he give anyone permission to search the apartment.

Mrs. Mattie Robinson, defendant’s grandmother, testified on his behalf that he had been living in her apartment. On the morning of February 11, 1970, two men in civilian dress knocked on her door, and when she answered, entered her apartment without her permission. They awakened defendant and then left with him. She did not know that he was under arrest. She knew that one of the men was Herbie Wells but did not know that he was a police officer. At approximately 11 A.M. Wells returned to her apartment. After inquiring about her health he entered the apartment and, without her permission, searched the premises. He took a wristwatch off the dresser in defendant’s room and then came back to the living room, reached under the sofa and retrieved two guns.

James Meltreger testified for the State that he is an assistant State’s attorney assigned to the special prosecutions unit which deals with the criminal activities of street gangs. He was present at the arrest of defendant on February 11, 1970. From his work in the State’s attorney’s office he had met defendant and knew that he was an informer. He was told by homicide detectives that defendant had been identified as the man who shot and killed a store owner on 79th Street. They told him that a broken watch crystal had been found at the scene of the crime. He informed Officer Wells of what the detectives had related to him. He accompanied Wells when the officer went to arrest defendant. He wanted to be present so that defendant would be afforded all of his constitutional rights. Mrs. Robinson voluntarily admitted them into her apartment. They went to defendant’s bedroom and told him that they were taking him to 26th Street to be interviewed by homicide detectives. He advised defendant of his rights. While in defendant’s bedroom he saw a watch with a broken crystal lying on the dresser. Wells put it in his pocket. After they arrived at the Criminal Court Building, defendant asked to speak with Wells alone. After Wells and defendant spoke, the officer went to Mrs. Robinson’s apartment and returned with two pistols. He learned that defendant told Wells that the guns belonged to Lawrence Cain.

Officer Herbie Wells testified for the State that he was assigned to the Chicago Police Department’s gang intelligence unit. He had known defendant for over a year prior to his arrest and had used him as an informer. He had often met with defendant at Mrs. Robinson’s apartment, and she knew him to be a police officer. On February 11, 1970, he and Meltreger went to the apartment and informed defendant that he had been identified as the man who killed the owner of a toy store. While defendant was getting dressed, he noticed a watch with a broken crystal lying on the dresser. He had read the homicide unit’s report of the shooting and knew that a watch with a broken crystal had been found at the scene of the crime. Defendant stated that the watch belonged to him. After notifying defendant, he put the watch in his pocket. After they arrived at the Criminal Court Building, defendant indicated that he wished to speak with him privately. Defendant told him that he wanted to call his grandmother to tell her to get rid of “some stuff.” Defendant then revealed that he wanted to get rid of two guns that had been given to him by Lawrence Cain. Defendant was fearful that due to a similarity in appearance between Cain and himself, he would be blamed for the shooting. He asked defendant for permission to go to the apartment to recover the guns. He explained that a lineup would be held and that if Cain was identified, the guns and defendant’s testimony would be used against Cain at trial. Defendant gave him permission to go to the apartment to obtain the guns. Mrs. Robinson admitted him to the apartment. After briefly inquiring about her health, he told her the purpose of his visit. She replied that she had told defendant not to bring the guns into the apartment because he might get into trouble. She said that she did not want them in her home and then went into the living room, reached under the couch and pulled out two guns. She gave them to him, and at his request gave him a paper bag in which to carry them. The guns were a .357 magnum and a .38-caliber Smith and Wesson.

Counsel argued that neither defendant nor his grandmother consented to a search of the apartment and that consequently, since the police had no warrant, the guns and the watch should be suppressed as evidence. The court found that a long-standing policeman-informer relationship existed between Wells and defendant, that defendant told Wells that he had been given the guns by Cain, that defendant’s information had apparently been reliable in the past, and that acting on this information and in an attempt to aid a useful informer, Wells returned to tire apartment to retrieve the guns with defendant’s permission. The motion to suppress was denied.

At trial Belle Lazar, wife of the victim, testified for the State that she and her husband owned the Wee Folks Toy Store located at 1708-10 East 79th Street in Chicago. On February 6, 1970, at approximately 2 or 2:30 P.M., she was working in the front of the store when she saw defendant enter. He was wearing dark trousers and a light jacket; his head was covered. Mr. Lazar was working at the rear of the store. Defendant said that he wanted something for an 8-month old boy. She led him to the westernmost aisle in the store and demonstrated some toys. Defendant asked if he could look around some more, and she returned to the front of the store. She became apprehensive and pushed the holdup alarm located behind the front counter. Defendant started walking toward her; she heard her husband coming from the back of the store. Defendant reached into his pocket, produced a gun and turned around. He said, “Don’t move or I’ll shoot.” As he was speaking, he fired five shots. She pushed the holdup alarm again and crouched behind the counter. When she got up she observed defendant stagger out of the store. She went to the aid of her husband and found him lying still on the floor. A woman, Mrs. Domice Daigre, entered the store and attempted to help her. Shortly thereafter the police and an ambulance arrived. The body of her husband was removed; when she next saw him, at the Jackson Park Hospital, he was dead. Defendant was in the store for 10 to 15 minutes. At no time was she more than 20 feet from him. The store was well illuminated by fluorescent lights. The police showed her a number of photographs, and she identified one of defendant. She also identified defendant at a lineup.

Chicago Police Officer Roderick Height testified for the State that on February 6, 1970, at approximately 2:30 P.M., he was in his car directly across the street from the Wee Folks Toy Store when he saw a man back out of the shop and drop to the pavement. The man got up, looked up and down the street, then ran to a black Cadillac parked in a vacant lot beside the store. After the man got into the car, it sped away. A man in a bus drivers uniform told him that there had been a shooting in the toy store, and they ran to his car and attempted to pursue the Cadillac. However, it eluded them. He described the man he chased as being a Negro, under 25 years of age, 6 feet tall, slender build, dark complexion and wearing a light-beige waist-length jacket and dark trousers. He could not positively identify defendant as this man.

Chicago Police Officer Ronald Mohrs testified for the State that on February 6, 1970, he answered a call to go to the Wee Folks Toy Store. When he arrived, he saw Mr. Lazar lying on the floor with five bullet wounds. Witnesses gave him descriptions of the assailant; Mrs. Lazar and Mrs. Daigre said that they could identify him.

Mrs. Domice Daigre testified for the State that on February 6, 1970, at approximately 2:30 P.M., she was standing outside the Wee Folks Toy Store looking at the display window. She heard several gun shots being fired and saw a young man scramble over a display rack and try to run out of the store. She backed away and went to her car in the parking lot. The young man proceeded past her, straightening his clothes and putting something in his pocket. He passed within 6 feet of her. She identified him as defendant. She then returned to tire store where she reported her observations to police officers. She later identified defendant at a lineup.

Chicago Police Officer Herbie Wells testified for the State substantially as he had at the suppression hearing.

Sergeant Francis Lee of the Chicago Police Department testified for fhe State that he accompanied defendant to the lockup following his appearance in a lineup on February 11, 1970. Defendant told him, “[T]he old man was coming at me with his hand in his pocket, I thought he had a gun and I shot him.”

John Sadunas testified for the State that he is a firearms expert employed by the Chicago Police Department. It was his opinion fhat the bullets which killed Emanuel Lazar had been fired by the .38-caliber Smith and Wesson revolver recovered from defendant’s apartment.

Homicide Investigator Charles Grunhard testified for the State fhat he interviewed defendant at the Criminal Court Building on February 11, 1970. Defendant told him that he and Lawrence Cain discussed the possibility of robbing the toy store on the day on which Emanuel Lazar was shot. Defendant was reluctant to participate because the avenues of escape did not seem secure. However, he waited in the car while Cain acted on the plan. Cain told him when he came running back from the store, “Let’s get out of here. I had to bum fhe guy.”

Robert Martin, a CTA bus driver, testified for the State that on February 6, 1970, at approximately 2:30 P.M. he was waiting at a bus stop about 80 feet east of the Wee Folks Toy Store when he heard a series of shots and saw a woman run away from the door of the shop. He observed a tall slender black man wearing a light jacket and dark pants run from the store with a gun in his hand. He identified defendant as this man. He joined another man in an unsuccessful pursuit of defendant’s black Cadillac. He identified defendant’s photograph from a group which police had shown him and later identified defendant at a lineup.

Defendant testified on his own behalf that Officer Wells had asked him to give information concerning Jeff Fort and the “Main 21,” the leadership group of a street gang. Wells threatened to “frame” him for tire next homicide committed in the area if he did not cooperate. Defendant denied any participation in the attempted robbeiy of the Wee Folks Toy Store, being in a black Cadillac in the vicinity of the shop on February 6, 1970, shooting Emanuel Lazar or ever carrying a gun.

Opinion

Defendant first contends that the court below erred in refusing to suppress as evidence the two guns recovered by police from his apartment. Although he does not question the court’s finding of fact that he gave permission to Officer Wells to search for these weapons, he asserts that his consent to the search was “overlaid with police coercion.”

A person may waive his Fourth Amendment rights. (People v. Nunn, 55 Ill.2d 344, 304 N.E.2d 81.) The United States Supreme Court has recently held that the issue of whether such a waiver of rights was coerced “is a question of fact to be determined from all the circumstances, and while the subject’s knowledge of a right to refuse is a factor to be taken into account, the prosecution is not required to demonstrate such knowledge as a prerequisite to establishing a voluntary consent.” (Schneckloth v. Bustamonte, 412 U.S. 218, 248-249; see also People v. DeMorrow, 59 Ill.2d 352.) The Illinois rule is clearly in accord with these principles — a valid consent may be given even though the defendant was not advised of his Fourth Amendment lights. In each particular case the determination of this factual question (i.e., whether a valid consent has been given) is to be made by the trial court, and a court of review will accept the finding below unless it is clearly unreasonable. People v. Armstrong, 41 Ill.2d 390, 243 N.E.2d 825; People v. Fiorito, 19 Ill.2d 246, 166 N.E.2d 606.

In the instant case it appears that defendant, in an effort to implicate Lawrence Cain and thus shift suspicion from himself, volunteered information to Officer Wells concerning the whereabouts of the guns. Wells went to defendant’s apartment in an effort to aid a valuable informer. The record indicates that defendant’s grandmother assisted Wells in retrieving the guns when he explained to her the purpose of his visit. There is nothing in the record to indicate that defendant, in giving permission to Wells to get the guns, was frightened, confused or submitting to the presence of authority. In fact, quite the opposite was shown. Defendant had a long-standing relationship with Officer Wells and with members of the staff of the State’s attorney and thus apparently was familiar with criminal procedure. (See People v. Donel, 44 Ill.2d 280, 255 N.E.2d 454.) It is clear from this record that the court below considered every phase of the question of whether defendant’s consent was valid, and we fully acquiesce in its decision to deny the motion to suppress.

Defendant next contends that it was error to admit into evidence a photograph depicting him carrying two handguns. He asserts that this photo was inflammatory and had no probative value. In addition, he claims that the State failed to lay a proper foundation for its introduction.

With regard to defendant’s contention that the photo was suggestive, we note that his objection to its admission at trial was based exclusively on the ground that an improper foundation had been laid. Consequently we must view as waived his claim concerning the suggestive nature of the photograph since an “objection to evidence based on a specific ground * * * waives all grounds not specified.” People v. Killebrew, 55 Ill.2d 337, 341-342, 303 N.E.2d 377; People v. Weather-spoon, 20 Ill.App.3d 818, 314 N.E.2d 228.

As to the contention that no foundation was laid as to the authenticity of the photo, the record reveals that defendant admitted it was a picture of himself taken at a party. If a defendant admits to the genuineness of a photograph of himself, this fact alone renders its admission into evidence competent. Litsinger v. United States (7th Cir. 1930), 44 F.2d 45.

Defendant claims that it was error to allow Assistant State’s Attorney Meltreger to testify at the hearing on the motion to suppress and then participate in his prosecution at trial.

A prosecuting attorney is competent to testify in criminal proceedings in which he serves as an advocate, although the practice is not encouraged. (People v. Gerold, 265 Ill. 448, 107 N.E. 165; People v. Knox, 90 Ill.App.2d 149, 234 N.E.2d 128.) In large part die reluctance of courts to allow such testimony is the danger that a jury would believe a prosecutor to be more credible than an ordinary witness. (See Robinson v. United States (8th Cir. 1928), 32 F.2d 505.) In the instant case this danger did not exist. Meltreger did not testify before the jury but rather was called as a witness at the hearing on the suppression motion conducted two weeks before the commencement of trial. At the hearing his testimony dealt with the circumstances surrounding defendant’s arrest which he had witnessed. Under these facts we believe that the court below did not abuse its discretion in allowing Meltreger to participate as a prosecutor in die trial of defendant.

Defendant next argues that certain statements made during both the State’s opening and closing arguments were improper. He first complains that during opening argument the State implied that he was a member of die Blackstone Rangers. A review of the record, however, reveals diat the only mention of the name of this street gang came in the following statement:

““ * * and by the way, there is no contention that the Blackstone Rangers have anything to do with this case.”

We believe that, contrary to defendant’s contention, this statement would tend to absolve him of any connection with the street gang, and therefore he suffered no prejudice.

It is also argued that at the close of trial Assistant State’s Attorney Meltreger argued facts not in evidence which were based exclusively upon his personal knowledge. Specifically, defendant points to Meltreger’s comments concerning the circumstances surrounding his arrest. We agree that it was improper for Meltreger to cast his narrative describing these events in the first person, but in view of the fact that these comments were consistent with the accounts of defendant’s arrest given by Detective Grunhard and Officer Wells, we believe this error to be harmless beyond a reaseonable doubt.

Defendant asserts that the jury was improperly instructed. He argues that since he presented a defense solely to a charge of felony murder, he was prejudiced by the giving of minder instructions based on theories other than felony murder. We find no merit in this contention. Defendant was charged in the indictment under all three sections of the murder provision of our Criminal Code. (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1(a).) The State introduced evidence tending to prove the commission of the offense under any of these three theories. The court instructed the jury pursuant to IPI — Criminal Nos. 7.01, 7.02, which present all of the elements of murder. Under these circumstances it clearly “was not error to instruct the jury as to elements of die crime as defined by statute, nor to tell the jury the charge set forth in the indictment.” People v. Cesarz, 44 Ill.2d 180, 190, 255 N.E.2d 1.

Defendant also argues that the court was obligated to give the following instruction:

“The Court instructs the jury if there are two theories which may lawfully be drawn from the evidence, one pointing to guilt and the other to absence of guilt, they should find the defendant not guilty.”

In People v. Rhodes, 41 Ill.2d 494, 499, 244 N.E.2d 145, where the identical instruction was tendered, the supreme court in holding that it had been properly refused stated:

“Such an instruction is proper only when the opposing theories arise out of the same facts. Where the defense is that the defendant did not participate in the alleged crime, it is proper to refuse such an instruction.”

In view of the fact that in the instant case, contrary to his assertion, defendant relied simply upon the defense that he was not the person who shot Emanuel Lazar and that in fact police officers wanted to “frame” him for the crime, we believe that Rhodes controls our disposition of defendant’s contention.

Finally, defendant contends that his sentence is excessive. We note that he was convicted of ruthlessly shooting down the elderly owner of a toy shop. The record reveals that at the hearing in aggravation and mitigation defendant, when given the opportunity to speak on his own behalf, manifested absolutely no remorse for his actions. The trial court, which of course had the opportunity to study the conduct and demeanor of defendant throughout the trial and sentencing hearing, carefully weighed his potential for rehabilitation against such factors as the nature of the crime and his character and history. In light of this record we believe that the imposition of a sentence of from 100 to 200 years was neither violative of statute (see Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8— 1) nor an abuse of the trial court’s discretion, and consequently we hold that it should remain undisturbed.

For the foregoing reasons the judgment is affirmed.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.

      Section 9 — 1(a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1 (a)) provides:
      “(a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
      (3) He is attempting or committing a forcible felony other than voluntary manslaughter.”


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alfonzo Ford, Defendant-Appellant.
    (No. 58947;
    First District (5th Division)
    January 24, 1975.
    Paul Bradley and James Streicker, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Bates, a/k/a Frank Bey, Defendant-Appellant.
    (No. 58967;
    First District (5th Division)
    January 24, 1975.
    James D. Montgomery and Diane M. Kinnard, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Frank Bates (hereinafter defendant) and a co-defendant, Ricky Smith, were jointly tried before a jury and found guilty of murder. Defendant was sentenced to a term of from 25 to 75 years. Smith does not join in this appeal.

On appeal it is contended that (1) the admission of the coerced testimony of the State’s key witness violated defendant’s right to due process of law and (2) the evidence produced by the State was insufficient to support defendant’s conviction.

On March 5, 1972, at approximately 7:45 P.M., the body of Charles Donnell Mitchell was found in an alley behind a residence at 4719 South Langley, Chicago. An autopsy revealed that the cause of Mitchell’s death was a bullet wound in the chest. Defendant and Ricky Smith were charged with murder.

At trial Penny Lewis testified for the State that she had known Mitchell for approximately 4 years prior to his death. She admitted that she is a drug addict and a prostitute. About a week before Mitchell’s death she saw him at the Lady Woods Lounge at Madison and Oakley. Mitchell asked her to hold some heroin for him, and she placed it in her bra. He told her that he wanted to find customers for the narcotic. Later that evening she accompanied Mitchell to a “shooting gallery” located at 1965 West Warren. “A shooting gallery is a place where jun-Ides go to take off, shoot dope.” There were several people at the Warren Boulevard address. One of them was a man she knew as “Frenchy.” When she arrived, an individual who claimed that he was a policeman was attempting to rob the people in the “shooting gallery.” Mitchell and the others were able to subdue him and tie him up. Some time later defendant and Smith arrived. Mitchell told them that the man who was tied up had attempted to rob them of their heroin. Defendant and Smith took the man outside. When they returned, defendant accused Mitchell of being a liar. Defendant and Smith lined up everyone in the “shooting gallery” and began to conduct a search. She pulled out the drugs and some money which Mitchell had given her. As she was doing this, Mitchell ran out the door and escaped.

Mary Bryant testified for the State that at approximately 7 P.M. on March 5, 1972, she received a phone call from a man whose voice she did not recognize. The man told her that her son owed him $40. She responded, ‘Where is Donnell, can I speak to him?” Mitchell was put on the phone. He said, “Mama, you have $70 of my money, we are coming to get it.” She replied, “Donnell, please * * * I don’t have the money. Please don’t bring no mens to my house * * *. You have to stand the consequences yourself.” The conversation was then ended. Her son sounded nervous when he spoke to her.

George Mosely testified for the State that he was awaiting trial for violation of probation. His nickname is “Frenchy.” On February 18 or 19 he had been at the “shooting gallery” and heard Mitchell ask defendant if he could sell heroin for him. Three days later Mosely saw defendant give some drugs to Mitchell and warn him “[i]f you fuck up my drugs or fuck up my money I am going to do something to you.” Mosely was in the “shooting gallery” about a week before Mitchell’s death. His testimony substantially corroborated that given by Penny Lewis conceming the events of that day. He testified in addition that when Mitchell ran out of the “shooting gallery,” codefendant Smith said, “Don’t worry about that punk. We will get him.”

On March 5, 1972, Mosely was at the shooting gallery. Defendant and Smith arrived and forced him to accompany them as they searched for Fred Brown who, they had been told, robbed two people at the shooting gallery. While they were searching for Brown, Mosely saw Mitchell walking on Damen Avenue near Madison Street. Defendant and Smith forced Mitchell into their car and asked him for $200. Mitchell said that his “woman” had $40 and that his mother had $70. Mitchell then directed them to Fred Brown’s home. Brown’s wife told them that she and her husband had been robbed and that Mitchell was a liar. Defendant hit Mitchell, accused him of lying and forced him back into tire car. They drove to a gas station and parked within 3 feet of a public telephone. A call was placed to Mitchell’s mother. Mosely’s account of the conversation was substantially similar to that given by Mary Bryant. The call was made at approximately 6:30 or 6:45 P.M. After the phone call, defendant told Mosely:

“Punk, you get out of this car and you better not tell nobody that we got Donnell and we’re going to take him out south and do him a job.”

Mosely testified that “do a job” is a slang expression meaning “kill.”

On cross-examination Mosely testified that the State’s attorney had not made any promises concerning the disposition of the charge pending against him. On March 8, 1972, he was picked up by two policemen and taken to a station where he was placed in isolation. He was ordered to remove his clothes and then an officer named Tidmarsh struck and kicked him. He was tied to a chair, beaten and threatened with revocation of his probation, whereupon he gave a statement implicating defendant in Mitchell’s murder.

On redirect examination Mosely testified that he had not been beaten since the night he was taken into custody, and that his testimony was not the result of coercion or threats.

Chicago Police Officer Andre Zehm testified that he arrested defendant on March 20, 1972, at 4554 South Drexel where he was hiding. This address is approximately two blocks from the spot where Mitchell’s body was found.

No evidence was presented on behalf of defendant.

Opinion

The State concedes that Mosely was “mistreated by some Chicago policemen” after he was taken into custody on March 8, 1972. Defendant contends that due to this “mistreatment,” Mosely’s trial testimony must be deemed “coerced” and that the admission of such “coerced” testimony constitutes so great a deprivation of due process of law that his conviction must be reversed.

Since this is an issue of first impression in Illinois, defendant has relied upon two recent Federal court decisions, LaFrance v. Bohlinger (1st Cir. 1974), 499 F.2d 29, and Bradford v. Johnson (E.D. Mich. 1972), 354 F.Supp. 1331, aff’d, 476 F.2d 66. We feel this reliance is misplaced. LaFrance deals exclusively with the use of a post-arrest statement, wrung from a witness through beatings and threats, for purposes of impeaching his trial testimony. Bradford merely stands for the proposition that testimony given under the continuing application of police and prosecutorial coercion is inherently untrustworthy and consequently its use at trial constitutes a denial of the accused’s rights under the Fourteenth Amendment. It is to be noted that in Bradford the witness recanted his trial testimony in an affidavit “to the effect that his testimony at petitioner’s trial was untrue and was given only because of fear for his personal safety and that of his family.” (Bradford, at 1334.) In the instant case we do not believe that Mosely’s trial testimony was the result of such continuing coercion. When asked on redirect examination whether he was testifying “under any coercion or threat,” Mosely replied, “No, sir.” The record further indicates that over 6 months elapsed between the date he was taken into custody and defendant’s trial. There is absolutely no indication that during this time Mosely was again beaten or threatened. Moreover, there is no indication that Mosely testified falsely; key portions of his account of the events culminating in Mitchell’s murder were corroborated by the testimony of Penny Lewis and Mary Bryant. On the basis of this record we have no doubt that Mosely’s testimony was the “fruit of his own reflection and volition” and not the product of coercion. (Broten v. United States (D.C. Cir. 1966), 375 F.2d 310.) We therefore find no error in the admission of this testimony.

Defendant has also contended that the State’s evidence was insufficient to prove him guilty beyond a reasonable doubt. He claims that the State failed in its proof since it could produce only circumstantial evidence linking him to the murder.

To support a conviction based solely on circumstantial evidence “the facts proved must be consistent with defendant’s guilt and inconsistent with any reasonable hypothesis of innocence.” (People v. Murdock, 48 Ill.2d 362, 367, 270 N.E.2d 21, 24.) However, the trier of fact is not required to search out a series of potential explanations compatible with innocence and elevate them to the status of a reasonable doubt (People v. Russell, 17 Ill.2d 328, 161 N.E.2d 309; People v. Little, 18 Ill.App.3d 1081, 311 N.E.2d 173) nor must it “disregard the inferences that flow naturally from the evidence before it.” People v. Owens, 23 Ill. 2d 534, 538, 179 N.E.2d 630; People v. Hayes, 4 Ill.App.3d 997, 282 N.E. 2d 777.

In the instant case George Mosely testified that approximately 2 weeks before the murder defendant gave Mitchell a quantity of heroin to sell. At that time defendant warned Mitchell, “If you fuck up my drugs or fuck up my money, I am going to do something to you.” Approximately 1 week before the murder Mitchell, who apparently feared that defendant believed he had cheated him, fled from the “shooting gallery” when defendant and Smith began to search the occupants of that building. Codefendant Smith then told those present, “Don’t worry about that punk. We will get him.” On March 5, 1972, the date of the murder, Mosely testified that defendant struck Mitchell and called him a liar. Smith demanded that he produce $200. After Mitchell made a phone call to his mother in an unsuccessful attempt to raise the money, defendant told Mosely, “* * * you better not tell nobody that we got Donnell and we’re going to take him out south and do him a job.” Within an hour after defendant made this expression of his intent to kill him, Mitchell’s body was found on the south side. Two weeks later defendant was found hiding in an apartment two blocks from where the body was found. We believe that this web of highly incriminating circumstantial evidence was sufficient to prove defendant guilty beyond a reasonable doubt, and therefore we affirm the judgment.

Affirmed.

LORENZ and SULLIVAN, JJ., concur.

       Although we have held that under the facts and circumstances of the instant case defendant’s right to due process of law has not been violated, we do not intend our holding to signify approval of the actions of those police officers who took Mosely into custody.


author: Mr. JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Kelly, a/k/a Frank Wright, Defendant-Appellant.
    (No. 58629;
    First District (5th Division)
    January 24, 1975.

      James J. Doherty, Public Defender, of Chicago (Bernard M. Talbert and James N. Gramenos, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was convicted on two counts of armed robbery and sentenced to concurrent terms of 10 to 25 years.

On appeal, he contends (1) prejudicial religious remarks were made during closing argument; (2) improper reference was made during argument to his prior burglary conviction; (3) the proof presented was not consistent with the charges in the indictment; and (4) the sentence is excessive and should be reduced, because of his background and physical condition.

The facts are summarized as follows. On a December afternoon, James Sheridan observed a stranger enter and walk to the back of his grocery store. Another stranger then entered, walked up to a counter, and drew a shotgun from under his coat. When Sheridan saw the shotgun, he took whatever money he had in his pockets and from nearby cash drawers. He gave this money to a clerk for safekeeping, and he and this clerk left the store through a front door. While standing on the sidewalk, he observed the two men, one holding the shotgun, speaking with a store clerk. At trial, Sheridan identified defendant as the man with the shotgun and stated he was wearing a dark hat and coat.

Burtha Young, a clerk, was behind a counter when she noticed Sheridan leave the store with one of the other clerks. She turned to ask another clerk, Debra Costic, why they were leaving and at that time she observed a man, whom she identified at trial as defendant, pointing a shotgun at Debra. He told Debra to give him the money, and Debra gave him the contents of the register. Burtha then opened the register at her counter and handed the money to Debra, who passed it on to defendant. No demand for money from Burtha was made by defendant. All of the occupants of the store, including Debra and Burtha, were then locked in a walk-in meat cooler.

Sheridan, who had remained outside, observed the two men leave the store and enter a yellow Buick with a black top. A woman motorist, apparently hearing Sheridan call for help, trailed the Buick and obtained its license number, which she later gave to Sheridan who in turn gave it to the police with a description of the car and the two men.

Later that evening. Officer Massano investigated a traffic accident involving a black and yellow Buick which had struck two parked cars. He said that the driver of the Buick, later identified as defendant, had an odor of alcohol on his breath and was wearing a dark coat which came down below his waist. He also noted the license number was HK9478.

On the day following the robbery, Officer Bills, who had obtained the same license number of HK9478 from Sheridan, determined the car was owned by James Giles who, when brought to the station and placed in a lineup, was not identified by Sheridan as a participant in the robbery.

Later, Giles brought Officer Bills and another officer to an apartment where defendant was staying and, when Bills observed that defendant fit the description Sheridan had given him of one of the robbers, he placed defendant under arrest. Defendant was brought to the station and placed in a lineup with four other men, and he was identified by Sheridan as one of those involved in the robbery. Bills took a photograph of this lineup and when it was shown to Burtha Young, she also identified defendant as a participant.

Defendant and Reverend Walter Cox testified that on the day of the robbery defendant was painting Reverend Cox’s home from early morning until about 4 P.M., when Reverend Cox, who had been at his home the entire day, drove defendant to Giles’ place of employment where defendant picked up Giles’ car-. Defendant also testified that he took the car to pick up some chemicals for Giles. Giles, however, testified he had given defendant permission to use his car on that day to look for a job. He had agreed to leave his car in a lot at his place of employment for defendant to pick up, and when he checked the lot at 12 noon he noticed that his car was gone. Defendant testified further that after he had picked up Giles’ car, he did not go for chemicals but instead went to a tavern for about two hours and, after leaving the tavern, while driving Giles’ car he collided with two parked cars while frying to avoid a small girl.

Opinion

I.

Defendant first contends he was denied a fair trial because of prejudicial remarks by the prosecutor during closing arguments. His testimony was that at the time of the robbery, he was painting the home of Reverend Cox. The latter, a Baptist minister and pastor, supported defendant’s testimony in this regard. In rebuttal argument, the prosecutor made the following comments:

“If there had been a statute of the Blessed Mary in the courtroom when the Reverend testified, she would have put her hands over her ears because there was nothing spewing forth from the witness chair but unmitigated lies.
# « *
I am sorry if the State couldn’t bring in a fine, upstanding witness like the Reverend Cox, self-ordained, or ordained by some other Reverend. How unusual that he never finished grammar school— strike that; he never finished high school, but he went on to a university — two colleges, one of divinity that he didn’t finish and one of business school; this he never finished. How strange. And this Reverend, he is separated from his wife. How strange.
# * *
* * * if he [defendant] can get somebody to come up and lie for him under the cover of the cloth of God, I will believe him. That’s what you are saying [if you find the defendant not guilty].”

Defendant argues the Blessed Mary is a dominant symbol of the Catholic Church and, because Reverend Cox was a Baptist minister and both he and defendant were black, that the comments were an appeal to white Catholics on the jury calculated to evoke religious and racial prejudice.

Initially, we note that no objection was made to these comments, and thus the contentions that they were appeals to racial and religious prejudice must be deemed to be waived. (People v. Donald, 29 Ill.2d 283, 287, 194 N.E.2d 227.) Furthermore, we are of the opinion that these comments were not error requiring reversal, for the following reasons:

First, we note that whether language used by a prosecutor will require reversal of a conviction depends upon the facts of each case (People v. Baker, 365 Ill. 328, 334, 6 N.E.2d 665), and that where the argument of defense counsel invites or provokes a response, defendant cannot complain that he was prejudiced by the response. People v. Reyes, 131 Ill.App.2d 134, 266 N.E.2d 539.

Here, the record discloses that defense counsel, in his final argument, emphasized that Reverend Cox was a Baptist minister and missionary, and he said, “I can’t imagine any Baptist minister or missionary can sit on the witness stand after taking an oath and tell you that a man painted his house on a certain day when in fact it did not happen * *

Thus, it appears that the prosecutor’s comments, although perhaps exceeding the bounds of propriety, were in response to the argument of the defense counsel.

Second, not every ill-advised statement in a closing argument will warrant reversal of a conviction (People v. Phillips, 126 Ill.App.2d 179, 261 N.E,2d 469), nor will remarks of counsel in final argument, even though improper, constitute reversible error unless they result in substantial prejudice to a defendant. (People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432.) Here, it appears that two eyewitnesses with good opportrinity to view the participants in the robbery, made positive pretrial and trial identifications of defendant. In addition, a police officer testified that on the day of the crime defendant was in an automobile accident while in the possession of the car used in the robbery, and at that time he was wearing a dark coat similar to the description of the coat given by Sheridan. Moreover, although Reverend Cox and defendant said that Giles’ car was taken from the parking area sometime after 4 P.M., Giles said his car was gone from that area at 12 noon. In view of the totality of the evidence supporting the jury’s finding of guilt, we think that the comments complained of were not a material factor in the conviction of defendant (see People v. Berry, 18 Ill.2d 453, 165 N.E.2d 257), and we believe they did not result in substantial prejudice to defendant.

II.

Defendant also complains that the prosecutor’s closing argument reference to his prior conviction was inflammatory and prejudicial. In this regard, we note that it was brought out during defendant’s direct examination that he had previously been convicted of a crime, and it was developed in his cross-examination that it was for burglary. The following colloquy took place in the rebuttal argument of the prosecutor:

“* * * this man Mr. Kelly who is not a stranger to the penitentiary. Ladies and Gentlemen, he may enjoy going back. And I say the only thing— MR. MARTIN [defense counsel]: I object. THE COURT: Sustained.”

It is contended that, although the comments would have been proper had they been directed to defendant’s credibility, they were improper here because they were intended to establish his guilt of the offense charged. We disagree. Where a defendant refers to his former conviction and incarceration, reference during closing argument by the prosecutor to that fact is not prejudicial. (People v. Del Prete, 395 Ill. 110, 69 N.E. 2d 512.) Furthermore, it has been held that a prosecutor may draw inferences unfavorable to defendant if based on the evidence and may “denounce his wickedness, even to the point of invective.” (People v. Williams, 26 Ill.2d 190, 186 N.E.2d 353.) Here, defendant’s counsel brought out the fact of his prior conviction and, as we have noted before, there was solid evidence of his participation in the crime. Under the circumstances, the statements that defendant “is not a stranger to the penitentiary” and that “he may enjoy going back” are proper inferences drawn from the evidence and, although unfavorable to defendant, they do not exceed the bounds of fair comment. Reversal should not be granted unless we believe the verdict would have been different had the comments not been made. (See People v. Nicholls, 42 Ill.2d 91, 245 N.E. 2d 771.) We do not so believe here.

III.

Defendant also maintains that the evidence does not warrant a conviction for the armed robberies of James Sheridan or Burtha Young, as charged in the indictment, because neither had any money taken from them.

In the two count indictment, defendant was charged with committing armed robbery “in that he by the use of force and while aimed with a dangerous weapon took an amount of United States currency (the exact amount of which is unknown to said grand jurors) from the person and presence * * * of James Sheridan and Burtha Young.”

Sections 18 — 1 and 18 — 2 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, pars. 18 — 1 and 18 — 2) in pertinent part provide:

“18 — 1. Robbery, (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.
18 — 2. Armed Robbery, (a) A person commits armed robbery when he violates Section 18 — 1 while armed with a dangerous weapon.”

In a prosecution for robbery, the gist of the action is that the accused forcibly took property that was in the care, custody or control of another person. (People v. Steenbergen, 31 Ill.2d 615, 203 N.E.2d 404.) Proof of actual ownership is not necessary where possession by the victim is shown. People v. Wooley, 127 Ill.App.2d 249, 262 N.E.2d 237.

In People v. Daniels, 354 Ill. 600, 188 N.E. 886, the indictment for robbery charged that money was taken from one Kaufman, while the proof showed that the money actually belonged to Kaufmans employer. The court held that the ownership of the property was unimportant, as its possession by the victim was sufficient for the purpose of establishing the crime of robbery.

In the instant case, the evidence reveals that defendant, armed with a shotgun, obtained money from the possession of Debra Costic in Burtha Young’s presence and then took an additional amount from Debra which had been given to her by Burtha. While ownership of the money was in Sheridan, it is apparent that money also was in Burtha’s possession or in her custody and control, and it is evident that she was responding to the threat of the shotgun when she gave money from her cash register to Debra to give to defendant. The thrust of the crime of robbery is the taking of property from a person by force and against his or her will when that person has a superior right to the property. When, as here, the individual takes the property from such a person while armed with a shotgun, the essential elements of the crime of armed robbery were established. Burtha gave up the money from her cash register under threat of the use of a shotgun by defendant. Sheridan, when he saw the shotgun, saved some of his money by giving it to a clerk as they left the store and, while he was outside, he observed defendant holding the shotgun, talking to a clerk at the cash register. We believe the total proof also established the commission of the robbery in his presence. In view thereof, we are of the opinion that the indictment properly charged the armed robbery of James Sheridan and Burtha Young.

IV.

The final contention of defendant is that the sentence of 10 to 25 years is excessive and should be reduced, because of his background and physical condition. In his briefs, defendant informs us that while incarcerated he developed a renal condition resulting in the removal of both kidneys. However, he had a successful transplant of a kidney from his sister and subsequently had additional surgery. Dr. Jonasson, in a report dated June 7, 1974, which was included in the reply brief, stated that defendant had recovered completely from his later surgery and was then in relatively good health, except for continued medication to prevent rejection of the kidney. The imposition of sentences is within the discretion of the trial court, and courts of review will not interfere with that discretion unless it is manifest that the sentence is excessive. People v. Kendricks, 4 Ill.App.3d 1029, 283 N.E.2d 273.

Here, the trial judge, prior to sentencing, had the opportunity to study the conduct and demeanor of defendant throughout the trial and to weigh his potential for rehabilitation against such factors as the nature of the crime, his character and his prior record, consisting of a burglary committed while on probation from a conviction of criminal damage to property. The sentence was within statutory limits, and it is our view that, when given, it was not manifestly excessive. Defendant now asks, however, that we consider two medical reports, particularly an unverified report dated June 7, 1974, of the surgeon who performed the kidney transplant which, among other things, states:

“a * * He again recovered completely and is now in relatively good health, though on continued immunosuppressant medication to prevent rejection.
* * * I have continued to follow him regularly in the outpatient department and have spent long times talking with him and it is my impression that he is now a responsible and reliable citizen. * # * He has some difficulty maintaining proper diet and exercise as well as medication schedule, which is of course critical to the achievement of his optimal health, and it would be in his best interest to be released from prison in order to maximize the opportunity for achievement of adequate health.”

Initially, we note that the doctor reported it would be in the best interest of defendant that he be “released from prison in order to maximize the opportunity for achievement of adequate health.” This carries little weight, in view of the fact that the doctor also stated defendant had completely recovered and was in relatively good health though on continued medication to prevent rejection.

Moreover, since the contents of the letter are hearsay and are not a part of the record on appeal, little, if any, consideration should be given to them. While this court has the authority to reduce a sentence, the supreme court has indicated it should be exercised with caution and circumspection. (People v. Fox, 48 Ill.2d 239, 251, 269 N.E.2d 720; People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) Here, we believe that the showing of defendant is insufficient to allow us to exercise our authority to reduce his sentence.

For the reasons stated, the judgment is affirmed.

Affirmed.

BARRETT, P. J., and LORENZ, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Billy Frazier, Defendant-Appellant.
    (No. 59348;
    First District (5th Division)
    January 24, 1975.

      . James J. Doherty, Public Defender, of Chicago (Saul H. Brauner, Assistant Public Defender, of counsel), for appeUants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Charles Sanford, Petitioner-Appellant.
    (No. 59681;
    First District (5th Division)
    January 24, 1975.
    Paul Bradley and Steven Clark, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Donald M. Devlin, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Alfred Chaney et al., Defendants-Appellants.
    (No. 60245;
    First District (5th Division)
    January 24, 1975.
    James J. Doherty, Public Defender, of Chicago (Marc Fogelberg, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


author: Mr. JUSTICE LORENZ

text:
    American Federation of Technical Engineers, Local 144, Plaintiff-Appellant, v. Thomas A. La Jeunesse et al., Defendants-Appellees.
    (No. 60262;
    First District (5th Division)
    January 24, 1975.
    Gilbert Feldman, of Kleiman, Cornfield and Feldman, of Chicago, for appellant.
    E. Allan Kovar, of Schiff, Hardin & Waite, of Chicago, for appellees.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff, a union, appeals from an order dismissing its amended complaint in chancery against 52 of its members. Among other relief, the complaint sought specific performance of the union constitution and bylaws by way of an order requiring defendants to pay fines assessed against them by the union for failure to honor a lawful strike and picket. On appeal, plaintiff contends: (1) that the trial judge erred in dismissing the amended complaint for want of equity since specific performance is the only available remedy, and (2) that the initial trial judge erred in dismissing the original complaint on the grounds that an unincorporated labor union does not have standing to sue at law.

On January 19,1972, plaintiff, by its president, filed a verified complaint in the law division of the circuit court alleging drat it is a voluntary association representing defendants as their labor union; that defendants had violated the terms of the union constitution and bylaws when they disobeyed union instructions to honor a lawful strike and picket; that as a result, fines were assessed against each defendant pursuant to the union’s disciplinary procedure; and that defendants had failed to pay those fines. The complaint sought judgments against each defendant in the amount of his unpaid fine; costs and attorney’s fees; and such other relief as the court deemed necessary. Copies of the union constitution and bylaws were attached to the complaint. Upon defendants’ motion to dismiss the complaint because plaintiff lacked standing to sue at law in its association name, the trial judge dismissed the complaint, but granted plaintiff leave to amend.

On August 9, 1972, plaintiff, by its president, filed an unverified amended complaint substantially tire same as the original complaint except that allegations were also made that there was no adequate remedy at law since the original complaint had been dismissed for lack of standing and that plaintiff would suffer irreparable injury and denial of its constitutional rights if relief were not granted. This complaint, in place of the prayer for judgments against each defendant in the amount of his unpaid fine, sought an order requiring defendants to specifically perform their contractual obligations pursuant to the union constitution and bylaws by paying the fines assessed against them.

Defendants filed a motion to dismiss the amended complaint for want of equity contending: (1) that plaintiff has an adequate remedy at law; (2) that the union constitution and bylaws confer no authority on the union to sue at law or equity; (3) that the amended complaint seeks to enforce a penalty rather than a valid debt; (4) that defendants are parties on both sides of the law suit; (5) that specific performance does not Jip since the contract is uncertain and ambiguous; (6) that the courts should not participate in union disciplinary proceedings; and (7) that plaintiff has no basis for specific performance. On January 17, 1973, the matter was transferred to the chancery division of the circuit court.

Initially, the trial judge denied defendants’ motion to dismiss ruling: (1) that a union may, as a matter of law, impose reasonable fines on its members for failing to honor an authorized strike; (2) that a union may, as a matter of law, collect reasonably imposed fines; (3) that the court has jurisdiction to enforce reasonable union policies; and (4) that plaintiff s allegations of irreparable harm is sufficient to sustain the court’s equitable jurisdiction over the matter. The order granted defendants time to answer the complaint.

Defendants then filed a motion for reconsideration of this order stating that no published cases authorize voluntary associations to sue for damages in equity; that the cases indicate that such associations cannot sue or be sued for damages; and that such an association should not be permitted to use its lack of standing as a shield in some instances and as a sword in other instances as it chooses. Defendants further stated that an excessive burden would be imposed on the court to determine the merits of each claim prior to a definitive holding on the legal issue common to all.

Tire trial judge granted defendants’ motion for reconsideration; confessed error in denying defendants’ motion to dismiss the amended complaint; vacated its prior order; and dismissed the complaint for want of equity. The judge found: (1) that the remedy of specific performance does not fie for the enforcement of plaintiff’s constitution and bylaws; (2) that specific performance does not he for the payment of money only; and (3) that there was no just reason to delay enforcement of or appeal from the order.

Opinion

Plaintiff contends that the trial judge erred in dismissing the amended complaint for want of equity on the ground that specific performance does not lie when only money payment is sought. Defendants argue that plaintiff is not entitled to specific performance even though its complaint at law had been dismissed.

The instant case places plaintiff in an unusual situation in attempting to pursue a remedy for an alleged breach of contract. In Illinois, the constitution and bylaws of an unincorporated association constitute a contract between the association and its members. (Gratz v. Cozart, 13 Ill.App.2d 515, 517, 142 N.E.2d 833, 834.) The normal remedy for breach of contract is at law for damages. However, an unincorporated associatíon may not sue or be sued at law in its association name, but rather must sue or be sued at law in the names of each of its members. (See Cahill v. Plumbers Local 93, 238 Ill.App. 123.) We note that such a procedure is frequently unworkable. When an unincorporated association is sued, the plaintiff seldom has access to the names of all the members of the association. When the association sues, a listing of the names of all its members, in both the caption and the body of the complaint, is infeasible especially when the association has numerous members and is particularly impractical when the association is seeking relief against some of its members.

An unincorporated association may sue in equity in the association name through representatives. Carpenters’ Union v. Citizens’ Committee, 333 Ill. 225, 164 N.E. 393.

In the instant case plaintiffs action at law for damages was dismissed on the ground that it sued in the association name. Then, when plaintiff through its representative sought relief in equity, its suit for specific performance was dismissed because it was in essence seeking damages. As a result, plaintiff is left without an effective remedy for the injury it is alleged to have suffered.

In view of the merger of law and equity, no justification exists for allowing an unincorporated association to sue or be sued in equity through its representatives (Carpenters’ Union v. Citizens’ Committee, 333 Ill. 225, 164 N.E. 393) but not allowing it to sue or be sued in such a manner at law. Only one rule of pleadings should prevail. Moreover, section 31 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 31) specifically provides that “there shall be no distinctions respecting the manner of pleading between actions at law and suits in equity, other than those specified in this Act and the rules.”

Furthermore, the 1970 Illinois Constitution provides that “Circuit Courts shall have original jurisdiction of all justiciable matters * s (Ill. Const. (1970), art. VI, §9.) This language is virtually identical to the language in the 1964 Judicial Article which created unified trial courts and abolished courts of limited jurisdiction, including separate courts of law and equity. There can be no question that the instant case presents a justiciable matter for the court’s consideration. Therefore, notwithstanding cases to the contrary, an unincorporated association has standing to sue and to be sued. Graham v. Board of Education, 15 Ill.App. 3d 1092, 305 N.E.2d 310; Illinois State Employees’ Association v. McCarter, 9 Ill.App.3d 764, 292 N.E.2d 901.

We also note that in view of the merger of law and equity, notwithstanding the division of the court to which a judge is assigned, a trial judge has jurisdiction to grant whatever remedy may be appropriate in the circumstances of the case before him. This view is supported by section 34 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 34) which provides that “[e]xcept in case of default, the prayer for relief does not limit the relief obtainable * *

The amended complaint contained a general prayer for relief and where by the court’s ruling plaintiff was effectively deprived of a remedy for the injury it was alleged to have suffered, we believe the trial court erred in dismissing plaintifFs amended complaint.

Therefore, the judgment of the circuit court of Cook County is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

DRUCKER and SULLIVAN, JJ., concur.