text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Wilbur Wright, Defendant-Appellant.
    (No. 54829A,
    First District
    — November 15, 1971.

      Gerald W. Getty, Pubhc Defender, of Chicago, (Ronald P. Katz and James Doherty, Assistant Pubhc Defenders, of counsel,) for appeHant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. NoveHe and Henry A. Hauser, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

On September 26, 1967, Wilbur Wright, the defendant herein, was indicted for the crime of armed robbery. Indictment number 67-3234 charged that:

“* * * on August 17, 1967, * * * Lawrence Goodwin, Wilbur Wright and Larry Hayes committed the offense of armed robbery in that they, by the use of force, and while armed with dangerous weapons, took five hundred doHars in United States Currency, twenty-four watches and sixty rings from the person and presence of AUen Blackman, in violation of Chapter 38, Section 18-2, of the Illinois Revised Statutes 1965.”

On October 4,1967, defendant was arraigned and on October 19, 1969, appeared before the court advising it of his desire to withdraw his plea of not guilty and change it to that of guñty. The court, in accepting the defendant’s guffty plea enumerated the possible consequences of that plea, advised him of his right to be tried by a jury and informed him of the fact that by pleading guüty, he thereby admits the facts aUeged in the indictment. It appears that during the course of this proceeding the court referred to the crime as that of armed robbery. After a hearing in aggravation and mitigation, defendant was sentenced to a term of no less than four nor more than six years in the penitentiary. Defendant appeals.

Citing Supreme Court Rule 401(b) (Ill. Rev. Stat. 1969, ch. 110A, par. 401 (b)), defendant contends that it was error for the lower court to. accept his plea of guilty without first admonishing him of the nature of the charge and informing him of the acts which constitute that crime. Supreme Court Rule 401(b) in effect at the time of the trial of the instant case provides, inter aha, that the court shall not permit a plea of guilty by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds from the proceedings in open court at the time the plea of guilty is entered, that the accused understands the nature of the charge against him.

This court has held that the rule does not require the court to recite all the facts which constitute an offense. What is required is that the court state to the accused, the essence or general character of the offense. (People v. Harden, 78 Ill.App.2d 431, aff’d 38 Ill.2d 559.) In People v. Carter, 107 Ill.App.2d 474, it was held that the defendant was advised of the nature of the charge by the court’s statement that the plea was to aggravated kidnapping.

Although the requirements of the rule relating to the acceptance of guilty pleas must be carefully complied with, the remarks and advice of the court must be read in a practical manner. (People v. Domico, 15 Ill.2d 590.) Furthermore, when determining whether a defendant understands the nature of the charge, it is proper for the court to consider the entire record. People v. Doyle, 20 Ill.2d 163, People v. Harden, supra.

It appears from the record that the defendant was presented with a copy of the indictment which clearly explained what he was being charged with, (see People v. Doyle, supra) and that during the proceedings at which defendant entered his guilty plea, the court specifically referred to the crime as that of armed robbery. It is our opinion that this admonition was sufficient to apprise defendant of the nature of the charge and therefore sufficient to satisfy the requirements of the Rule cited. The judgment is affirmed.

Judgment affirmed.

LYONS and GOLDBERG, JJ„ concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIERINGER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lawrence C. McLean, Defendant-Appellant.
    (No. 53736;
    First District
    — October 27, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Fred Shandling, James J. Doherty, and Theodore A. Gottfried, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and George Pappas, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered in the circuit court of Cook County. The defendant, Lawrence McLean, was indicted for the murder of Loran Overturf and the aggravated battery of Albert Tulo. In a jury trial he was found not guilty of aggravated battery, but guilty of voluntary manslaughter in the death of Overturf and was sentenced to a term of ten to twenty years in the Illinois State Penitentiary.

The issues on appeal are whether the trial court unreasonably restricted cross-examination, whether the jury was improperly informed that defendant and a defense witness had asserted their constitutional right to remain silent while in custody, whether the conduct of the State’s Attorney created the impression that defense counsel was hiding unfavorable evidence, and whether the State’s closing argument was prejudicial.

Albert Tulo testified that on May 4, 1967, he was in the company of the deceased and three other boys standing in the vicinity of 18th Street and Wolcott when James Gillinger approached them on a bicycle. Gil-linger called out the names of the deceased and Tulo, then the defendant and Lowell Davis got out of a car and approached the group. The defendant asked which one of the five had been “messing with one of my boys?” He was referring to an incident two weeks earlier when Tulo had pointed a cap pistol at Davis.

The deceased and Tulo began advancing and McLean pulled a pistol. The deceased twice dared the defendant to shoot and continued to advance and shout obscenities at him. As the defendant backed into the street one shot was fired and Overturf clutched his chest, then three more shots were fired. The defendant testified the first shot was fired accidentally when he backed into a parked car. He said he fired the other shots because he thought the deceased was reaching inside his jacket for a weapon. Tulo, however, testified that McLean was in the middle of the street when the first shot was fired.

The defendant contends he was unduly restricted from impeaching the testimony of Albert Tulo. On direct examination Tulo testified that two weeks prior to the shooting he was in a skating rink with the deceased. At that time he took a toy gun from a young boy, entered the washroom where Lowell Davis was present, pointed the gun at Davis and pulled the trigger. He said he was “fooling around” and that they both laughed about the incident. On cross-examination, defense counsel made the following references to Tulo’s testimony before the Grand Jury.

“Q. Do you remember, Albert, testifying before the grand Jury of Cook County, do you remember that, Albert?

A. Yes, sir.

Q. All right, I’d like to ask you if you remember this statement.

“Q. Why were you carrying the cap pistol, why?

A. Why?

Q. Yes.”

Your answer was this: “Well, Loran had it and he was in the rink and we were fooling around with it.” Now, do you remember being asked that question by the State’s Attorney in the Cook County Grand Jury proceedings?

A. No, I don’t.

Q. Do you remember giving that answer?

A. No, I don’t.

Q. Isn’t that your answer?

A. I don’t remember.”

At this time defense counsel sought to once again read the answer the witness gave at the Grand Jury proceedings. The judge disallowed this because he had already read the answer once. The defendant maintains the impeachment of the witness was not complete because the witness said only that he did not remember and was not then confronted with the prior testimony. He maintains he should have been allowed to bring in the court reporter to testify from his notes as to the statement made to the Grand Jury. In People v. Dixon (1963), 28 Ill.2d 122, the defendant attempted to lay a foundation for impeachment of a State’s witness on the theory that the witness had testified differently at an earlier trial which ended in a mistrial. The Supreme Court of Illinois held that the trial court erred in requiring defense counsel to repeat specific questions and answers from the former trial testimony where the defendant was unable to obtain a free transcript of the former trial.

The court stated:

“However, counsel did not have a transcript of the testimony at the first trial and the court sustained objections to all questions as to whether the witness in question had testified differently at the first trial, on the ground that the only proper method of laying a foundation for impeachment was to read the exact question and answer made at the former trial. It is true that this method is customary and proper. * * * After laying the foundation the impeachment could have been completed, in the absence of a transcript, by calling the reporter at the former trial to prove the prior inconsistent testimony.”

It thus appears the trial judge was correct, and any repetition of the question and answer would be unwarranted.

The defendant next asserts he was denied a fair trial when the State introduced evidence that he and Lowell Davis repeatedly asserted their constitutional rights to remain silent. In Miranda v. Arizona, 384 436, it was held that no adverse inferences can be drawn from an accused’s refusal to make a statement. But these rights are personal and extend only to defendants. In this case the Miranda rights of Lowell Davis cannot be asserted by the defendant. (People v. Danham (1968), 41 Ill.2d 1; People v. Hudson (1970), 46 Ill.2d 177.) Therefore, any prejudicial inferences which may be drawn from Davis’ desire to remain silent may be considered by the jury in assessing the guilt or innocence of the defendant. However, there were persistent references to the fact that McLean, too, had claimed his right to remain silent. Even the repeated objections of counsel and adverse rulings of the court cannot be considered sufficient to protect the defendant’s case from being prejudiced.

The defendant claims he was denied a fair trial when the State offered into evidence a letter written by him which the State alleges was inconsistent with his testimony on the stand. The letter was written by the defendant to Albert Tulo while he was in custody and, in essence, stated that the deceased would not have been shot if he had not placed his hand in his pocket. The defendant first denied and then admitted writing the letter.

On cross-examination the defendant testified the first shot was fired accidentally as a result of backing into a car. The State deemed this testimony to be inconsistent with the contents of the letter, which indicated he shot the deceased voluntarily though in self-defense, and tried to have the letter admitted into evidence to impeach the defendant. The State apparently chose to ignore the defendant’s statement on direct that although the first shot was fired accidentally, the others were fired in self-defense when he thought he saw the deceased attempt to pull out a weapon. When the defense attorney objected to the fine of questioning, the contents of the letter were discussed in chambers. The court determined the letter was not relevant and would only be impeaching if the defendant was claiming accident. When the defendant was again cross-examined before the jury he stated the first bullet was discharged accidentally. He was not asked about the other shots. The State again attempted to introduce the letter, and the defense attorney was required to object again, and the objection was sustained.

The following day the defense attorney moved the court to allow the entire letter into evidence on the court’s motion because the jury may speculate as to the contents of the letter and may believe the contents of the letter were harmful to the defendant’s case. The judge refused this motion and allowed his previous ruling to stand. The denial of this motion was error, because at this point both sides wanted the letter admitted into evidence and for good reasons. In People v. Dukes (1957), 12 Ill.2d 334, the State’s Attorney made an insinuation to the jury about the defendant’s criminal record. The Supreme Court stated:

“In a sense, it was more damaging than proof of other specific criminal offenses, because it left the jury to speculate upon the insinuation that the defendant had a prior record, without stating what it was.”

There was no way of knowing what the jury thought about the letter not being admitted into evidence or how much damage was done thereby.

The defendant next asserts the closing argument for the State was prejudicial because it informed the jury of the existence of the decedent’s family. In his closing argument the State’s Attorney said:

“Now ladies and gentlemen, we understand that you have a very solemn duty to perform. We understand without doubt that you are going to be sympathetic because this is a youthful person, no question about it, but we ask you, ought you not also to be sympathetic for the deceased who was also a young person? Ought you not be sympathetic for the family of Loran Overturf, who had a right to have this son live a normal and full and healthy life? This boy was also young. He was also unarmed at the time that he was shot down by this punk.

Mr. Davis: Objection, your Honor, and I would like to speak to the court at sidebar.

Mr. Magnes: That’s not necessary, that’s a fair comment.

Mr. Davis: I am asking the Court to declare a mistrial.

The Court: Motion for a mistrial is denied. You may proceed.”

In People v. Dukes, 12 Ill.2d 334, the son of the deceased testified that he was a son and that he lived with his mother, two sisters and a brother. The court stated:

“Such evidence has no relation to the guilt or innocence of the accused or the punishment to be administered to him, and is ordinarily calculated only to prejudice the defendant with the jury. Where it is not elicited incidentally, but is presented in such manner as to cause the jury to understand that it is a matter material and proper to be proved, its admission is prejudicial error. (Filippo v. People, 224 Ill. 212.) # # # We must assume that the jury considered it as material, since the court overruled objections to both the evidence and the argument. Its only purpose was to prejudice the defendant in the eyes of the jury and to arouse in them anger, hate and passion. We cannot speculate as to the extent to which the jury was influenced by this incompetent evidence and inflammatory argument.”

The State maintains that the reference was not so prejudicial to the defendant as to deprive him of a fair trial, and it cites People v. Vasquez (1969), 26 Ill.2d 190. In Vasquez, the court held that testimony in that case was only incidental and was not of an inflammatory nature. The court also noted that the questioning was brief and cursory and was abandoned upon defense counsel’s objection, with an admonition from the court not to continue. Here, there was an objection which was denied, thus allowing the jury to believe that it could be considered in reaching a verdict. In Williams, the court stated:

“While it is improper for a State’s Attorney to make statements the ■ only effect of which is to inflame the passions or develop the prejudices ■ of the jurors without throwing light on the issues, he may nevertheless I draw inferences unfavorable to defendant if based on the evidence, I and he may reflect unfavorably on the accused and denounce his wick- I edness even to the point of invective. Further, it is always proper for the prosecutor to dwell on the evil results of crime and to urge fearless administration of the law. [Citations.]”

Here, the effect was to inflame the passions of the jurors. The statement did not merely draw inferences but informed the jury of the existence of the family of the deceased, a fact not material to the question of guilt or innocence. The statement not only informed the jury of the existence of the family but presented it in a manner which could be related to the question of the defendant’s culpability and asked the jury to be sympathetic for the family.

In addition, the State’s Attorney referred to the defendant as a “gang chief,” and the Villa Lobos as a “gang.” There is no evidence to support these statements. Although the defendant was wearing a Villa Lobos club sweater at the time of the incident, and there was contradictory testimony about whether he was a member of the organization, there is no evidence that it was in any sense a “gang.” All witnesses referred to the organization as a club, and the only testimony to the contrary was by a policeman who stated he had occasion to call the Chicago Police Department Gang Youth Intelligence. There was an objection to this in court and a motion for a mistrial made in chambers, which was denied.

For these reasons, we think the defendant was denied a fair trial, and the judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

ADESKO, P. J., and BURMAN, J., concur.


author: Mr. JUSTICE DIE RINGER

text:
    Country Mutual Insurance Company, Plaintiff-Appellant, v. Stanley Kuzmickas et al., Defendants-Appellees.
    (No. 55169;
    First District
    — October 27, 1971.

      Tom L. Yates and Carl E. Abrahamson, both of Chicago, (Frederic L. Goff, of counsel,) for appellant.
    Leonard R. Grazian, of Chicago, for appellees.
   Mr. JUSTICE DIE RINGER

delivered the opinion of the court:

This is an appeal from a declaratory judgment entered by the circuit court of Cook County against the Country Mutual Insurance Company and in favor of defendants, Stanley and George Kuzmickas.

This action was brought by the plaintiff, Country Mutual Insurance Company, against the defendants, Stanley and George Kuzmickas, to declare that a policy of insurance did not cover them under the policy’s uninsured motorist provision and to permanently stay arbitration proceedings.

Stanley Kuzmickas testified he and his brother George, both aged fifteen, were walking east on Route 173 on the south edge of the highway on March 30, 1964. When a car approached from the rear and started off the road, Stanley ran north over the pavement, and George ran south, each trying to get out of the way. Both claim to have been struck by the car. The driver stopped, and they got into his car and talked with him for twenty to twenty-five minutes as he drove them to school. He gave them a slip of paper with his name and telephone number on it, but one digit of the telephone number was missing. They wrote the license-number of the car on a piece of paper, the number being either HI 9050 or HL 9050. They described the car as being an aqua and white Oldsmobile.

A teacher took them to the Condell Memorial Hospital in Libertyville, where they were given emergency treatment, and the police were called. They gave the slips of paper to the police. About one week later the police told them they could not locate the man who drove the car with the information given them. Late in the following summer, Stanley and his father located an Oldsmobile in Chicago Heights with a license number of HL 9050, but it was a different color.

On October 14, 1964, the defendants’ attorney notified Country Mutual that they were making claim for injuries sustained when struck by an unknown and uninsured motorist under an insurance policy issued to Simas Kuzmickas, the father of the defendants. The defendants also made claim for medical payments coverage afforded the defendants under the policy. On January, 1965, the defendants gave a joint signed statement to the plaintiff setting out the particulars surrounding the March 30, 1964, occurrence. On December 15, 1965, the plaintiff notified the defendants’ attorney it would pay under the medical payments provisions of the policy, but was denying the uninsured motorist claim presented.

On February 8, 1966, the defendants, by their attorney, filed a demand for arbitration with the American Arbitration Association against the plaintiff under the policy issued to their father, and on September 27, 1967, the plaintiff filed its complaint for declaratory judgment to stay the arbitration proceedings and to declare the policy did not cover defendants because the vehicle involved was not a hit-and-run or an uninsured vehicle; that the defendants failed to give plaintiff immediate notice required by the policy, and there was no valid arbitration agreement.

The defendant answered the complaint admitting no statement was filed with plaintiff within the thirty days required by the policy and affirmatively stated the requirement was not applicable to them because of their minority, and they were unaware the operator was a hit-and-run motorist until after the thirty-day period. They denied the vehicle causing the injury was not an uninsured vehicle, and there was not a valid agreement to arbitrate.

On June 16, 1969, the court, after hearing evidence, entered an order finding defendants had complied with the provisions of the policy; the vehicle causing the injury was a “hit-and-run” vehicle, and that the parties proceed in arbitration on the issues of damages and liability. After the hearing was had in arbitration, the defendants filed their motion for judgment confirming the award of the arbitrator in favor of Stanley Kuzmickas in the amount of $16,600 and George Kuzmickas in the amount of $850.

The plaintiff filed its responding motion to vacate the award, urging the arbitrator had exceeded his powers and there was no valid agreement, the vehicle was not a “hit-and-run” vehicle, notice was not given as required by the policy, and no loss was payable to the minor defendants. Argument was heard, and a judgment order was entered upon the award, from which plaintiff appeals.

The plaintiff maintains there is no valid arbitration agreement with the defendants because the policy provides that if the insured is a minor, the loss is payable to his parent or guardian. It therefore concludes the person entitled to arbitration is the parent, Simas Kuzmickas, and not the minors who made the demand for arbitration without the assistance of a parent or guardian. This argument is not persuasive because the arbitration clause in the policy does not require the demand be made by any particular individual. It states as follows:

“Arbitration — If any person making claim hereunder and the company do not agree that such person is legally entitled to recover damages from the owner or operator of an Uninsured Vehicle because of bodily injury to the Insured, or do not agree as to the amount of payment which may be owing under this Section, then, upon written demand of such person or upon written demand of the Company, the matter or matters upon which such person and the Company do not agree shall be settled by arbitration in accordance with the rules of the American Arbitration Association, and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. Such person and the Company each agree to consider itself bound and to be bound by any award made by the arbitrators pursuant to this Section.”

Country Mutual also complains the award should be vacated because the policy contained a requirement to give notice to the company within thirty days of the occurrence, and such notice is a condition precedent to recovery. It suggests that even though the defendants were minors, the policy under which they would benefit was issued to their father, who should be charged with the responsibility of notification; therefore, the minority of the children is no defense. Country Mutual overlooks the law of this state which favors the protection of the rights of minors. Even if the father were charged with a duty to notify the insurance company, his negligence in failing to do it cannot be imputed to his minor children. Furthermore, it is not clear when it became obvious the car was a “hit-and-run” vehicle within the definition in the policy. Even with the defective information given by the driver and the statement by the police that they could not locate the driver, it is understandable the Kuzmickas thought the driver would eventually be found.

Country Mutual’s argument that it was prejudiced by the delay in notification is not persuasive. It asserts the thirty-day requirement is to give it an opportunity to investigate the accident as soon as possible and not have to pursue a “cold trail seven months after the occurrence.” There is no evidence in the record that it conducted an investigation of any sort after notification which would allow it to claim prejudice, although prejudice is not by itself determinative of the issue. Simmon v. Iowa Mutual Casualty Co. (1954), 3 Ill.2d 313.

Country Mutual also denies the accident may be characterized as a “hit-and-run” under the definition in the policy. The relevant portion of the definition states:

“ ‘Hit-and-Run Vehicle’ means a vehicle which causes bodily injury to an Insured arising out of physical contact of such vehicle with the Insured or with a vehicle which the Insured is occupying at the time of the accident, provided: (1) the identity of either the operator or the owner of such ‘hit-and-run vehicle’ cannot be ascertained * *

Country Mutual contends that either the operator or the owner of the vehicle could have been ascertained. However, the fact remains that after all this time, none of the parties in this litigation or the police have established the identity of the owner or operator. It must be assumed the police made a good faith effort and failed. The Kuzmickas also made an effort, and they also failed. The record is silent as to any effort made by Country Mutual, but its complaint that the piece of paper on which the driver had written his name and number was not made available to them cannot be the fault of the defendants because they gave the paper to the police. The net result is that seven years later neither the operator or the owner of the car has been found. This result is sufficient to bring the situation within the definition in the policy.

Finally, the plaintiff argues the court erred in refusing to vacate the award pursuant to Section 112 of Chapter 10 of the Illinois Revised Statutes, which provides that upon application of a party the court shall vacate an award where “there was evident partiality by an arbitrator appointed as a neutral.” The only evidence of partiality was the claim of an excessive award not supported by the evidence. No specific acts of bias were alleged, and it has always been the law that the award of an arbitrator is conclusive, and a “mere allowance of too little or excessive damages will not raise a presumption of fraud of itself.” (Root v. Renwick (1854), 15 Ill. 461.) More recently, this court held in Ramonas v. Kerelis (1968), 102 Ill.App.2d 262:

“When the award of an arbitrator conforms with the submission and no fraud or mistake appears on its face, the award will not be interfered with or set aside for errors of law or fact. Podolsky v. Rashin, 294 Ill. 443, 128 N.E. 534 (1920).”

Therefore, the judge properly refused to vacate the award.

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

Judgment affirmed.

ADESKO, P. J., and BURMAN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Childress, Defendant-Appellant.
    (No. 55175;
    First District
    — October 27, 1971.

      Gillis, Gildea & Rimland, of Chicago, (Kenneth L. Gillis, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and James Sternik, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment of the circuit court of Cook County finding defendant guilty of possessing stolen goods. The case was tried by the court without a jury, and the defendant sentenced to one year’s probation.

On November 12,1969, a Thom McAn shoe store at 147th and Western Avenue in Dixmoor, Illinois, was burglarized. Police officers went to the scene at 11:38 P.M. They questioned the people in the vicinity and then procured a search warrant to search a 1962 Chevrolet car, license number CL 3014, registered to Richard Childress, and also the house in which he lived at 2022 West 142nd Street, Dixmoor. The warrant alleged the burglary at the Thom McAn store, information from a reliable informant, and also that a car with the above license number had been spotted. The warrant specified the things to be seized as shoes, purses and socks.

At 2:20 A.M., the police went to the defendant’s address and searched the house but found nothing. However, in the car they found several shoes. An officer testified the car was locked, but he was able to see them through the car windows, and entrance was gained to the car when the keys were found on a table in the house. There were three shoes on the floor of the front seat, one shoe on the floor of the rear seat, and one was on the back seat.

Alan Holmes, the manager of the shoe store, testified the shoes were from his store. He was able to identify them because of the “label and handwriting, and the way we do it.”

The defendant testified in his own defense that he was parked behind the Curve Lounge, which is adjacent to the Thom McAn store, and that he was accompanied by four friends. He stated they all sat in his car and drank some wine they had bought, and then he and one of the others went into the lounge leaving the other three alone in the car. He denied knowledge of the crime and stated he did not notice the shos in his car as he drove home.

The defendant contends it was error for the judge to fail to suppress the evidence uncovered pursuant to the search warrant because the warrant did not explain the reason the police went to the defendant’s house, did not furnish facts to support its conclusion and did not describe with particularity the articles to be seized. It is not necessary to discuss the validity of the warrant because the goods were seized lawfully pursuant to the “plain view” doctrine of Harris v. United States (1967), 390 U.S. 234, and People v. Wright (1968), 41 Ill.2d 170. In Harris, the court held the “objects falling in the plain view of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence.” In Wright, a policeman had secured a search warrant for the second floor apartment of a two-story building. During the surveillance of the building it was discovered that known policy runners were entering the first floor apartment. One of the policemen went to the rear of the building, which had no yard, and was able to see gambling operations on the first floor through partially open curtains. The court held that evidence obtained on a search of the first floor apartment was admissible because the officer had probably cause to believe a crime was taking place when he looked into the window, and he did not trespass while doing so.

In the instant case the articles seized were taken from a car parked on a street after being viewed by a policeman who was not trespassing. The officer had probable cause to believe a crime had taken place because he had investigated the break-in of the Thom McAn store, and the shoes he observed in the car appeared to be of the same type as those he saw in the store. “Whether probable cause exists depends upon the totality of the facts and circumstances," (People v. McCrimmon (1967), 37 Ill.2d 40), and the conclusions drawn by the arresting officer should be judged upon “factual and practical considerations of everyday life, on which reasonable and prudent men, not legal technicians act.” People v. Hester (1968), 39 Ill.2d 489; Brinegar v. United States (1948), 338 U.S. 160.

The defendant next complains that the ownership of the shoes was not proven beyond a reasonable doubt and contends the complaint is faulty for failing to allege that the Thom McAn shoe store was a corporation. In his brief the defendant asserts the manager of the store could not state whether the shoes had come from his store. This is not supported by the record. Alan Holmes, the manager of the store, stated he could identify the labels taped to the shoes “by the label and handwriting, and the way we do it.”

In People v. Whittaker (1970), 45 Ill.2d 491, the Supreme Court of Illinois discussed the necessity of alleging ownership rather than mere occupancy:

“It is true that an allegation of ownership was once required (see People v. Picard, 284 Ill. 588), but we put an end to this ‘empty formality’ in People v. Stewart, 23 Ill.2d 161, 168, and reaffirmed our position in People v. Peck, 29 Ill.2d 480, 484. Accordingly, an indictment alleging occupancy or possession of the burglarized premises in a named person is sufficient.”

The information in the complaint is sufficient to establish ownership in someone other than the defendant.

Furthermore, the record contains sufficient information for the trier of fact to conclude that Thom McAn is a corporation. In People v. McGuire (1966), 35 Ill.2d 219, the court stated:

“We believe that the time has come to re-evaluate the standards of proof established by earlier decisions. In other States, the ordinary rule is that the existence of a corporation may be shown by direct parol evidence. * * * We believe that tírese rulings are inconsistent with the spirit that has substituted, in criminal procedure as well as in civil, an interest in the significant rights of the litigants for a ritualistic concern with the empty formalities.’ (People v. Hill, 17 Ill.2d 112, 119.) We therefore hold that in tire absence of evidence to the contrary, the existence of a corporation may be shown by the direct oral testimony of a person with knowledge of that fact.”

In a recent case, People v. Nelson (1970), 124 Ill.App.2d 280, the court held that corporate ownership could be determined from such references as “Sears,” “Sears and Roebuck,” “Sears Corporation,” “Sears warehouse,” and several similar terms. The court cited the McGuire case and then stated:

“It follows that formal and better proof would have been made if a witness who knew the facts were asked whether Sears, Roebuck and Co. was a corporation and whether it owned the warehouse as alleged in the indictment. However, absence of this kind of precise interrogation is not important because if there was evidence that the injured party was a corporation, and that it owned or possessed the burglarized premises, it is of no moment that a direct question about these facts was not put to a witness.”

In the instant case there were several references to the shoes being Thom McAn products, and the manager stated that an inventory would be done by a “company” auditor. The word “company” connotes a corporate existence. (People v. Whittaker, 45 Ill.2d 491.) In Whittaker, the court stated:

“The rationale for this common-law requirement was to adequately inform the defendant of the charges against him and to protect him from possible double jeopardy.”

In this case there is no allegation that the defendant was unable to prepare his case based on the information in the complaint, and there is no danger of double jeopardy because the complaint stated the defendant obtained unauthorized control over property belonging to the Thom McAn shoe store at a specific address in Dixmoor.

Finally, the defendant complains his motion in arrest of judgment should have been granted because he was tried on an unsworn complaint, to which no plea was made. The basis of this argument is that immediately before trial, the State amended the original complaint. The verified complaint originally filed charged the defendant with a violation of section 15 — 7(a) of Chapter 38 of the Illinois Revised Statues:

“As used in this Part C, ‘Obtain’ means:

(a) In relation to property, to bring about a transfer of interest of possession, whether to offender or to another.”

The amended complaint charged the defendant with violating section 16 — 1(d) (1):

“A person commits theft when he knowingly:
# # #
(d) Obtains control over stolen property knowing the property to have been stolen by another or under such circumstances as would reasonably induce him to believe that the property was stolen, and
Intends to deprive the owner permanently of the use or benefit of the property.”

Although there was no re-verification of this new complaint, a defendant can waive his right to verification by pleading guilty or going to trial without raising the question. (People v. Harding (1966), 34 Ill.2d 475.) In People v. Smith (1967), 90 Ill.App.2d 388, the court stated:

“Defendant did not move to quash the complaint until after the State had rested its case. * * * We are constrained to hold that, no objection having been made in apt time, if any defect did in fact exist in the verification of the complaint, defendant is deemed to have waived them.”

Although the defendant did object to the amendment to the complaint immediately prior to trial, that objection did not preserve his right to be prosecuted on a verified complaint. Where the defect could have easily obviated by giving notice to the adverse party, a specific objection must be made. (People v. Merril (1966), 76 Ill.App.2d 82.) The re-verification could easily have been made in this case because both the Assistant State’s Attorney, who amended the complaint, and the witness who had originally verified the complaint were both in the courtroom.

For the reasons stated herein, the judgment is affirmed.

Judgment affirmed.

ADESKO, P. J., and BURMAN, J., concur.


author: Mr. JUSTICE McGLOON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Cook, Defendant-Appellant.
    (No. 55131;
    First District
    — October 28, 1971.

    Gerald W. Getty, Public Defender, of Chicago, (Saul H. Brauner, Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Arthur Belkind, Assistant State’s Attorneys, of counsel,) for the People. I
   Opinion by

Mr. JUSTICE McGLOON.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lorenzo B. Bacon, Defendant-Appellant
    (No. 53810;
    First District
    — October 29, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, James L. Doherty, and John L. Barton, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Roger S. Matelski, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court as modified on rehearing:

A jury found the defendant guilty of the offenses of attempted murder and aggravated battery. He was sentenced to terms of fourteen to twenty years and eight to twelve years respectively. The finding and sentence with respect to the aggravated battery charge were subsequently vacated.

On appeal, defendant contends: (1) that the trial judge erroneously denied defense motion for discharge under the statute requiring trial within 120 days of arrest; (2) that the court erroneously permitted the State under guise of impeachment, to place before the jury as substantive evidence, statements by defendant’s co-indictees implicating defendant in the crime charged; (3) that the denial of defense motion for a hearing to determine the voluntariness of those statements was improper; (4) that statements elicited from defendant were in violation of the principles established by the Supreme Court in Miranda v. Arizona (1966), 384 U.S. 436 and should therefore have been suppressed; (5) that certain physical evidence was the fruit of a statement elicited from the defendant in violation of the Miranda doctrine and should therefore have been suppressed; (6) that the trial court erred when it failed to make findings of fact and law upon denying defense motions to suppress; (7) that the trial court should not have allowed the State to introduce evidence of crimes other than the one for which defendant was being tried; (8) that defendant was denied a fair trial; and (9) that the giving of an instruction relating to the credibility of defense witnesses was improper.

The State’s evidence in its case in chief may be summarized. At approximately 10:00 A.M. on October 23, 1967, Police Sergeant Rourke was driving his marked squad car in a southerly direction on south Halsted Street in Chicago. He observed an automobile slide through a stop sign. The driver of that car was signaled to pull to the curb and the three occupants were ordered out of the car. They were brought to the rear of their car where they were patted down. The men were then told to remain at the rear of the car. While Rourke was calling for assistance two of the men left their positions. At Rourke’s command one returned but the other, identified by Rourke as defendant, kept walking to the passenger side of the car. Defendant then fired a shot which struck Rourke in the lower abdomen. Rourke returned the fire wounding one of the three. The trio fled the scene in their car. Another police officer, coming upon the scene moments later, attempted to follow the fleeing trio. He found their car abandoned. Crime laboratory technicians lifted fingerprints from the car which were established to be those of defendant.

The State Police arrested defendant at Farmer City, Illinois, and took him to Pontiac, Illinois, to await the arrival of the Chicago police. When the Chicago police arrived in Pontiac they searched defendant and informed him of his rights in regard to questioning. Defendant stated that he did not want to say anything and he was not interrogated. He was then placed in the rear seat of a police car for the return trip to Chicago. On returning to Chicago they went directly to Area Two Police Station where Sergeant Murtaugh took command of the investigation. When Murtaugh informed defendant of his rights, defendant responded that he understood. Defendant requested permission to telephone his father. The police then provided a telephone which defendant used in an unsuccessful attempt to reach his father. Defendant then told the police that he would like to call an attorney whom he knew. The police gave defendant a telephone directory but he was also unsuccessful in his attempt to contact the attorney.

Defendant was then taken to another police station for a line-up. There he again tried unsuccessfully to contact his father. Although no interrogation took place at this station, defendant overheard the police officers mention the names of defendant’s co-indictees, Pillow and Turner. Defendant then asked whether the others involved in the case were in custody. On being informed that they were, he asked for the man in charge of the investigation because he wanted to “tell it like it was.” Murtaugh was summoned and once again informed defendant of his rights. After a reading of the four warnings defendant responded that he understood. He then made a statement implicating himself as the person who shot Rourke.

The police took defendant to Rourke’s room in Little Company of Mary Hospital where defendant said “That’s the sergeant I shot.” Rourke then identified defendant as his assailant. Defendant was then taken to a third police station for processing. There he was asked by Murtaugh whether he had anything else to say. Defendant said he would show the police where the gun could be found. He then led the police to a clump of bushes in an alley where the gun was discovered. Several police officers testified that during the entire time defendant was in custody he made no attempt to escape and he was not physically abused.

The evidence presented by defense may be summarized. On October 23, 1967, defendant arrived home at approximately 8:00 A.M. He received a telephone call from his father at 8:30 A.M. and defendant called his friend Ollie Ross at 9:30 A.M. He made arrangements to meet Ross later than morning. Defendant went to the dry cleaner and on his return trip met Mattie Bell with whom he had a brief conversation occurring about 10:00 or 10:15 A.M. He arrived home about 10:30 A.M. As he was entering the building his father arrived. They talked of defendant’s upcoming trip to see his mother in Wichita. At 11:00 A.M. defendant kept his previously arranged meeting with Ollie Ross. While they were having a drink Ross told defendant that Pillow had been wounded. At 3:00 P.M. defendant boarded a bus for Wichita. As he stepped off the bus for a bite to eat at Farmer City, Illinois, he was apprehended and searched by the State Police. He was taken to Pontiac where the Chicago police came for him. The Chicago police unsuccessfully attempted to persuade defendant to make a statement. On the return trip to Chicago defendant was punched repeatedly by the officers.

They arrived at a Chicago police station about 2:45 A.M. on the morning of October 24, 1967. There defendant met Murtaugh, who jabbed defendant in the stomach with a pistol after he asked to call his attorney. While at the first police station defendant was not allowed to make any telephone calls. He was taken to another police station where he was beaten, placed in a line-up, and then beaten again. Once more he unsuccessfully requested permission to call an attorney or his father. The police than transported defendant to the hospital in which Rourke was recovering. There, Rourke identified defendant as the man who shot him. Defendant was taken to yet a third police station where he was photographed and fingerprinted. Murtaugh then placed defendant in a car which transported them to an alley where another police car was awaiting them. There he was instructed to pick up a gun.

When defendant’s father arrived home from work on the afternoon of I October 23, 1967, he was met by the police who had already searched the ■ home. They told him that his son had shot a policeman. Bacon, Sr. ad- ■ vised the police that his son was on the way to Wichita. After some of I the police left he telephoned a friend and asked her to come to his house. ■ The friend arrived at 6:00 P.M. and stayed throughout the night. They were awake all night talking. The telephone never rang after midnight.

Although Pillow and Turner made statements to the police naming defendant as Rourke’s assailant, at trial they named another as the person who shot Rourke. They indicated that the previous statements were involuntary and were the product of police persuasion.

The State introduced rebuttal evidence to impeach the testimony of Pillow and Turner. This is set forth in detail below.

Opinion

(1) Defendant contends that he was entitled to discharge under Ill. Rev. Stat. 1967, ch. 38, par. 103 — 5. The basis of this contention is his assertion that he occasioned no delay from March 5, 1968, to the time of trial, August 1, 1968. We are unable to agree with him in this regard.

On February 26, 1968, defendant filed a motion for the substitution of judges naming Judges Wilson and Delaney as judges who, in defendant’s belief, were prejudiced against him. A hearing on that motion was conducted on March 5, 1968, at which time the motion was allowed and the cause transferred to Presiding Judge Power for re-assignment. On that same day, March 5, 1968, leave was granted defendant to amend his motion deleting Judge Delaney’s name and inserting the name of Judge Heilingoetter as one who defendant feared was prejudiced against him. Defendant’s motion was allowed and the case was then assigned to Judge Delaney. On April 5, 1968, the parties appeared before Judge Delaney for a hearing on a motion to suppress a confession. The assistant state’s attorney called the judge’s attention to the fact that he was originally named in defendant’s petition for substitution. The State then sought to have defendant acknowledge that he did not consider Judge Delaney prejudiced against his cause. Defense counsel responded by informing the court that defendant did not wish to be tried by Judge Delaney. Defendant, himself, spoke out saying, “I am requesting a substitution of judges.” The motion was granted and on that same day the case was reassigned to Judge McMillen who continued the case until July 15, 1968. Because the case was assigned to Judge McMillen on the same day the second motion for substitution of judges was made, defendant would have us believe that any delay which occurred during the period in question was not occasioned by him but was the result of administrative inefficiency of the court system.

This court was faced with a similar contention in People v. Walker (1968), 100 IH.App.2d 282, 289. There on motion of defendant for a substitution of judges the case was re-assigned the same day to the eventual trial judge. The defendant contended that his motion did not cause or contribute to delay in the proceedings. The court, however, did not agree with him and held that defendant’s action substantially contributed to the delay of which he complained on appeal and therefore he could not bring himself within the rule even though that delay was administrative in nature.

We hold the delay in the present case attributable to defendant. It was his second motion for substitution of judges which generated the delay until July 15, 1968. The 120 day period started again from that date and ran to a date weH beyond the date of trial in this case. See People v. Jones (1968), 101 Ill.App.2d 423, 428-429.

The trial court had further grounds for refusing to discharge defendant under the 120 day rule. On July 19, 1968, defense counsel moved for a Behavior Clinic examination of defendant. The court then continued the case until July 23, 1968. Any delay occasioned by an examination of defendant for competency tolls the statute. (Ill. Rev. Stat. 1967, ch. 38, par. 103 — 5.) It is clear that the purpose of the continuance granted on July 19, 1968, was to enable defendant to be examined by the Behavior Clinic pursuant to defendant’s motion for such examination. The court below properly denied defendant’s motion for discharge.

(2) In defendant’s next contention he asserts that the trial court erred in allowing the prosecution to introduce, under the guise of impeachment, statements made by defendant’s coindictees implicating defendant in the crime charged.

Ronald Turner and Richard Pillow, both of whom were then serving terms in the penitentiary for convictions arising out of the same series of events for which defendant was being tried, testified that it was not defendant but Earl Winston who shot Officer Rourke. Both Turner and PiHow admitted giving statements to the police on the day of their arrest, but testified that the statements were the result of coercion and highly suggestive tactics by the police. On cross-examination of both witnesses, the prosecution, over objection by defense counsel and on a question by question basis, brought out inconsistencies between their testimony and their extra-judicial statements. Although those prior statements were of considerable length, Turner’s consisting of ninety-eight questions and answers and PiUow’s consisting of seventy-seven, the cross-examination of both witnesses involved a seriatim inquiry into whether each and every question of the witness’ respective statement was asked of and answered by him. Those statements revealed that prior to the trial of this cause PiHow and Turner said that defendant was with them on October 23, 1967, when they drank and committed an armed robbery, and that it was defendant who shot Rourke. The jury, while being apprised that PiHow and Turner had previously stated defendant shot Rourke, was not, however, informed that those prior statements could only be considered for purposes of determining the credibüity of those witnesses. The State’s Attorney’s reporter who transcribed Pillow’s statement was caUed in rebuttal by the State and examined as to whether some thirty-five questions and answers had been asked of and answered by Pillow. Although those questions and answers also clearly indicated to the jury that PiHow had previously named defendant as the person who shot Rourke, no limiting instruction was given to the jury. An assistant state’s attorney was also called in rebuttal and testified that Turner had told him that defendant was present when Rourke was shot, and, as before, the jury was never instructed concerning the limited purpose of impeachment for which those statements were received. AdditionaUy, the written jury instructions contained no caution to the jury concerning the use of those statements.

The Supreme Court looked unfavorably upon a situation similar to the instant case in People v. Barragan (1929), 337 Ill. 531 where a witness testified that he committed the crime and defendant was not present. Purportedly for purposes of impeachment, the prosecution produced a statement made by defendant. As the prosecutor read a series of questions and answers from that statement, some of which indicated that defendant was with the witness during the perpetration of the crime, the witness was asked whether or not he made such answers. A police officer who transcribed the statement was also called upon to testify. He was asked whether certain questions and answers were asked of and answered by the witness. The court pointed out that though the statements were offered for the purported purpose of impeachment the real purpose was to present to the jury a statement that defendant participated in the crime. 337 Ill. 531, 536.

In People v. Tunstall (1959), 17 Ill.2d 160 another similar situation was presented to the court. There also the defense called a co-indictee of defendant to testify that defendant did not take part in the commission of the crime. On cross-examination it was brought out that the witness had made a statement on the day of his arrest wherein he implicated defendant. The prosecutor then proceeded to examine the witness as to each question and answer of that statement. There also the jury was not informed that the statement was to be considered by them only for the pmpose of determining the credibility of the witness. Because of that failure the jury was, in effect, allowed to look upon the statement as evidence of defendant’s guilt. It was also clear that, even though the prosecution said the use of the statement was for the purpose of impeachment only, the prosecutor’s action in bringing every detail of the statement to the attention of the jury indicated his desire to place before the jury a statement that defendant prepared for the crime, assisted in its commission and shared in its spoils.

In People v. Tate (1964), 30 Ill.2d 400 a co-indictee testified that he alone was responsible for a crime. The prosecution then cross-examined the witness on a statement he gave to the police wherein he implicated the defendant as the person who committed the crime. There the court determined that the trial judge erred in failing to admonish the jury that the statement should be considered by them only with respect to the credibility of the witness in spite of the fact that no such instruction was requested by defense counsel. (Accord, People v. Paradise (1964), 30 Ill.2d 381, 385.) In Barragan, Tunstall, Paradise and Tate convictions were reversed and new trials granted.

In our consideration of the instant case we hold that it was error for the trial judge to fail to give an instruction to the jury concerning the limited purpose for which the statement was to be considered by them. The necessity for such instruction is amply demonstrated by the language of the Supreme Court in People v. Tate, supra, where at page 404 it said quoting from People v. Tunstall, supra:

“Inasmuch as the jury was neither informed nor instructed that the statement could be considered only for the limited purpose of determining * * * credibility, * * * its introduction into evidence left the jury free to look upon it as further evidence of the defendant’s guilt. If, from the competent evidence already admitted, the jury entertained any doubts that the defendant was guilty, it would be difficult, if not impossible, to remove the impression of guilt which would follow from such a statement.”

We believe the trial judge also erred in allowing the prosecution to go beyond the realm of proper impeachment by bringing out every detail of the lengthy statements which not only implicated defendant in the crime charged but also in another crime thereby causing extreme prejudice to him. (People v. Paradise (1964), 30 Ill.2d 381, 385.) We, therefore, reverse the conviction of defendant and remand the case for a new trial. Let it be pointed out, however, that impeachment of a witness by the use of prior inconsistent statements is not prohibited, but where the jury is allowed to consider the extra-judicial statements as evidence of defendant’s guilt because they were not instructed otherwise or where, under the guise of impeachment, the prosecutor attempts to show defendants guilt by use of those extra-judicial statements, it is improper.

(3) While it is unnecessary to consider any other of the contentions raised by the parties and as a result of the briefing on this appeal the same situations are not likely to arise again, attention should be given to some problems which are likely to recur on re-trial of this case.

The trial court should have conducted a hearing on defendant’s motion to determine the voluntary nature of the statements used to impeach the testimony of defendant’s co-indictees. The State would have us believe that defendant does not have standing to question the voluntary nature of a statement used by the State in an attempt to impeach defense’s witness. This is contrary, however, to the principle developed in the following cases. In People v. Adams (1953), 1 Ill.2d 446, 451-452 the court stated that the use of a statement previously made by defendant for purposes of impeaching his testimony was improper when the question of the voluntary character of that statement was undetermined. In People v. Hiller (1954), 2 Ill.2d 323, 327 the court broadened the rule to include statements of co-defendants. As in People v. Tate (1964), 30 Ill.2d 400, 405 and People v. Newman (1964), 30 Ill.2d 419, 424, the court extended the rule to require the establishment of the voluntary character of out-of-court statements of witnesses who were not co-defendants when those statements were used, even for impeachment purposes. See discussion in Harris v. New York (1971), 401 U.S. 222.

The trial court, at the instance of the State, gave to the jury an instruction concerning accomplice witnesses. Because of the nature of such an instruction in singling out a particular witness for comment by the court as to his credibility, we are not fully convinced that such an instruction should be given in this case (on behalf of the State) or in the usual situation, on behalf of the defendant. In any event, the instruction given was unduly long, and imperfect in some respects, so, if the subject is to be covered by an instruction in the future, we assume it would be given in the form set out in I.P.I. — Criminal § 3.17.

The judgment is reversed and the cause remanded for a new trial.

Reversed and remanded.

ENGLISH, P. J., and DRUCKER, J., concur.

       This statute provides:
      “(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104-2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court’s determination of the defendant’s physical incapacity for trial, or by an interlocutory appeal.”


text:
    Katherine Homka, Deceased, by and through her Administratrix and next friend, Leonore H. Mezralke, Plaintiff-Appellee, v. Chicago Transit Authority, Defendant-Appellant.
    (No. 54519;
    First District
    — October 29, 1971.

      George J. Schaller, O. R Hamlink, Jerome F. Dixon, and Edmund J. Burke, all of Chicago, for appellant.
    John E. Cunningham, of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court on rehearing:

This is an action brought by an administratrix for injuries suffered by Katherine Homka, deceased, while a passenger on a bus operated by defendant. The deceased died of causes unrelated to this action. The case was tried by the court and resulted in a judgment against defendant in the amount of $9433.58. On appeal defendant contends that:

1) the court erred in denying defendant’s motion for judgment notwithstanding its finding;

2) the judgment is contrary to the manifest weight of the evidence;

3) the award for pain and suffering was excessive.

The accident occurred at the intersection of Milwaukee, Kimball and Diversey Avenues at approximately 1:15 A.M. on January 27, 1965. Milwaukee Avenue is a northwest-southeast street. Diversey is an east-west street and Kimball is perpendicular to Diversey. Katherine Homka, plaintiffs deceased, boarded defendants bus which was westbound on Diversey at the northeast corner of the intersection. The bus driver closed the doors. When the traffic light for westbound Diversey traffic turned green the bus entered the intersection. About one and one-half lengths into the intersection the bus came to a sudden stop. Deceased, who had not yet seated herself was thrown to the floor, sustaining fractures of her left hand and arm.

The three defense witnesses and one plaintiff’s witness who testified concerning the occurrence were in substantial agreement. Plaintiff’s only occurrence witness, Conketta Maes, a passenger on the bus, stated that she observed a car proceeding west on Diversey but did not see any other vehicle in the vicinity. She was unable to estimate the speed of the bus.

The defense witnesses including the bus driver and two passengers testified that as the bus entered the intersection an automobile, southbound on Kimball, entered the intersection across the path of the bus. Its speed was estimated at 25-30 miles per hour. These witnesses estimated the speed of the bus at the time the brakes were applied as 5-10 miles per hour and 15-20 miles per hour. William Smith, the driver of the bus, stated that he did not see the approaching automobile until it was approximately ten feet from his bus. He applied his brakes immediately. The bus and auto did not collide.

Defendant contends that plaintiff failed to prove negligence and that the court should therefore have granted the defense motion for judgment notwithstanding the court’s finding. The test to be applied in ruling upon such a motion is stated in Pedrick v. Peoria and Eastern Railroad Co. (1967), 37 Ill.2d 494 at 510:

* * * (v)erdicts ought to be directed and judgments n.o.v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.

A carrier owes to its passengers the exercise of the highest degree of care Lutz v. Chicago Transit Authority (1962), 36 Ill.App.2d 79. Further, the occurrence of injury to a passenger raises the presumption that this obligation has not been fulfilled. In New York, Chicago and St. Louis Railroad Co. v. Blumenthal, 160 Ill. 40, at 48 the court said:

“The happening of an accident to a passenger during the course of his transportation raises a presumption that the carrier has been negligent. The burden of rebutting this presumption rests upon the carrier. Undoubtedly the law requires the plaintiff to show that the defendant has been negligent. But where the plaintiff is a passenger, a prima facie case of negligence is made out by showing the happening of the accident.”

See also Tolman v. Wieboldt Stores, Inc. (1967), 38 Ill.2d 519 at 523. Moreover, the presumption raised by plaintiff’s prima facie case is not erased by any evidence of due care on defendant’s part, but rather that presumption is passed on to the finder of fact for consideration along with all of the other evidence. See Metz v. Cent. Ill. Elec. & Gas Co. (1965), 32 Ill.2d 446.

Thus, when confronted with defendant’s motion the court could properly consider the presumption raised by plaintiff’s evidence and the rebuttal evidence of due care presented by the defense. The two passengers who testified for the defense stated that they observed the southbound auto before it entered the intersection but defendant’s driver stated that he first observed the auto when it was about ten feet from his bus. The driver of a vehicle, regardless of right-of-way, retains a duty to maintain a proper lookout for other vehicles. (See Conner v. Mc Grew, (1961) 32 Ill.App.2d 214 at 217 and Sullivan v. Certified Grocers of Illinois, Inc. (Ill.App., June 18, 1971), No. 54071.) In view of this evidence and the high standard of care owed its passengers by a common carrier, we conclude that negligence was properly a question for the finder of fact and that the court did not err in denying defendant’s motion. See Dodds v. Chicago Transit Authority (1956), 9 Ill.App.2d 388.

We are also unable to accept defendant’s arguments that the finding of the court as to negligence was contrary to the manifest weight of the evidence. To be against the manifest weight of the evidence it is required that an opposite conclusion must be clearly evident. (See Hulke v. International Mfg. Co. (1957), 14 Ill.App.2d 5.) For the reasons stated supra we do not consider this to be such a case.

Defendant’s final contention is that decedent’s pain and suffering were not proved to be the consequence of injuries suffered in the accident and that the judgment for pain and suffering was excessive by about $6000. Her out-of-pocket expenses were $1188.80. Plaintiff’s witness’s testified that decedent suffered pain immediately after her injury, at the conclusion of her stay in the hospital, and subsequently during her stay at home. Defendant, relying upon Manion v. Brant Oil Co. (1967), 85 Ill.App. 129 argues, however, that the causal connection between the pain and injury suffered on defendant’s bus required proof. Manion was an action for wrongful death. The death occurred nearly one year after the automobile accident in which the plaintiff’s decedent was injured. An autopsy revealed that death resulted from progressive natural causes. The plaintiff’s experts offered their opinions that decedent’s pre-existing conditions were aggravated by injuries sustained in the accident. The court in reversing a judgment for the plaintiff found that the expert testimony was without any physiological basis and that the causal Hnk between the death and the injuries had not been established. We do not beheve that the rule in Manion has apphcation in the case at bar. This is an action for injuries and the plain and suffering resulting therefrom. Defendant stipulated to medical records describing multiple fractures of the decedent’s left arm and hand and clearly indicating resultant pain. The causal relationship between those fractures and decedent’s pain, unlike that between the injuries and death in Manion, is neither unusual nor speculative. We, therefore, conclude that the evidence was sufficient to establish the causative Hnk between the injuries sustained as a result of the faU on defendant’s bus and and decedent’s subsequent pain and suffering.

Similarly, we are not persuaded by defendant’s assertions that the amount of the award was so excessive as to be the result of passion and prejudice. See Lau v. West Towns Bus Co. (1959), 16 Ill.2d 442.

Judgment affirmed.

ENGLISH, P. J., and DRUCKER, J„ concur.


author: Mr. JUSTICE DRUCKER

text:
    Perkins Pepe & Steel Co., Inc., Plaintiff-Appellee, v. Acme Valve & Fitting Co., Defendant-Appellant.
    (No. 55446;
    First District
    — October 29, 1971.

      Block, Erdos & Lupel, of Chicago, (Warren Lupel, of counsel,) for appellant.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

This is an appeal from a judgment awarding plaintiff $642 for defendant’s breach of a contract to purchase certain metal fittings, valves and flanges. The case was tried without a jury.

On appeal defendant contends: (1) that the judgment was not supported by the evidence presented and (2) that plaintiff did not present any evidence in support of its allegations and therefore failed to bear its burden of proof on the material issues.

Plaintiff has filed an appearance in this cause but no brief was filed in this court in response to defendant’s brief. However, we shall still review the merits of this appeal rather than enter summary reversal. Daley v. Jack’s Tivoli Liquor Lounge, Inc., 118 Ill.App.2d 264.

In its complaint plaintiff alleged that it sold and delivered certain merchandise to defendant; that defendant made a part payment of $642; and that defendant has failed to pay the remaining balance of $642.

In its answer defendant admitted purchasing certain merchandise from plaintiff but also alleged that it failed to pay the remaining balance of $642 because plaintiff sent defendant cast iron flanges rather than forged steel flanges as that portion of the contract provided for. Defendant further stated that it had offered to return the balance of the merchandise “and still tenders so to do” upon reimbursement of freight costs incurred.

Plaintiff filed a reply denying defendant’s allegations and alleging that the flanges shipped were forged steel. Plaintiff further stated that it would accept the return of the merchandise in settlement of the account but that defendant refused to do so.

Defendant called the only witness at the trial, Lany Klairmont, vice-president of defendant corporation. Klairmont testified that defendant had ordered certain valves and fittings from plaintiff through a Florida broker. A shipment arrived at defendants plaint, the defendant paying approximately $400 in freight charges. When defendant had its first opportunity to inspect the goods, it discovered that the fittings were not forged steel as had been ordered but were cast iron. Defendant offered on one or more occasions to return the fittings to plaintiff but plaintiff would not accept this arrangement unless defendant prepaid the freight costs. This defendant refused to do.

Opinion

Defendant contends that the judgment was not supported by the evidence presented. The standard applicable in determining whether the findings of the trial court are erroneous as a matter of law is set forth in Pedrick v. Peoria & Eastern R.R. Co., 37 Ill.2d 494, 510. Reversal is required only if “all of the evidence, when viewed in its aspect most favorable to [the plaintiff here] # * *, so overwhelmingly favors [the defendant here] * # * that no contrary [finding] * * * based on that evidence could ever stand.”

The only evidence presented as to whether the goods in issue conformed to the contract was the testimony of defendant’s witness, Larry Klairmont, that the fittings were not forged steel as had been ordered but were cast iron and that defendant offered to ship the goods back to plaintiff but that plaintiff refused this arrangement unless defendant prepaid the freight costs.

In Larson v. Glos, 235 Ill. 584, 587, the court stated:

“Where the testimony of a witness is uncontradicted, either by positive testimony or by circumstances, either intrinsic or extrinsic, and the witness is not impeached, the testimony cannot be rejected even by a jury. The witness in this case was not contradicted or impeached, and the facts testified to were not improbable in themselves or in connection with any circumstances in the case.”

See Urban v. Industrial Commission, 34 Ill.2d 159.

Klairmont’s testimony was positive, uncontradicted and unimpeached. It could not be disregarded by the trier of fact and must be considered dispositive of the main issue as set out by the pleadings— that plaintiff did not send forged steel flanges as the contract provided for.

The record shows that the entire order consisted of two 14-inch steel flanges (the goods in issue), two 8-inch stainless steel valves, two 6-inch PRV valves, one 6-inch steel flanged gate valve, and seven used valves. Apparently these were five commercial units of valves with the two steel flanges in issue constituting one such unit. Defendant had the right to accept the four units of valves which conformed to the contract and reject the non-conforming flanges in issue. The record further indicates that defendant’s rejection was effective since it was made within a reasonable time after delivery and plaintiff was seasonably notified thereof. (Ill. Rev. Stat. 1965, ch. 26, par. 2 — 602(1).) Therefore, since defendant rightfully rejected the goods in issue, plaintiff is not entitled to payment for them.

The judgment of the circuit court is reversed, and the cause is remanded with directions to enter judgment for defendant.

Reversed and remanded with directions.

ENGLISH, P. J., and LORENZ, J., concur.

       “ ‘[C]ommercial units’ means such a unit of goods as by commercial usage is a single whole for purposes of sale and division of which materially impairs its character or value on the market or in use. * * e” Ill. Rev. Stat. 1965, ch. 26, par. 2 — 105(6).

      “[I]f the goods or the tender of delivery fail in any respect to conform to the contract, the buyer may * * * (c) accept any commercial unit or units and reject the rest.” Ill. Rev. Stat. 1965, ch. 26, par. 2 — 601.

       “Subject to the provisions of the two following sections on rejected goods [which are not relevant here] * * * (c) the buyer has no further obligations with regard to goods rightfully rejected.” Ill. Rev. Stat. 1965, ch. 26, par. 2 — 602(2).


author: Mr. JUSTICE LYONS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Johnny Quinn, Defendant-Appellant.
    (No. 54087;
    First District
    — November 1, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (James N. Gramenos, Assistant Public Defender, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Nicholas Taubert, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE LYONS

delivered the opinion of the court:

The defendant, Johnny Quinn, was charged with unlawful possession of a narcotic drug (heroin) in violation of Ill.Rev. Stat. 1963, ch. 38, par. 22 — 3. Following a bench trial, defendant was found guilty and was sentenced to serve not less than two nor more than six years in the Illinois State Penitentiary.

On appeal, defendant raises six issues:

1) Whether the trial court erred in disallowing the disclosure of a police informer’s identity;

2) Whether defendant was deprived of his right to confront prosecution witnesses;

3) Whether the trial court erred by considering inadmissible evidence of defendant’s guilt;

4) Whether the trial court erred in denying defendant’s pre-trial motion to suppress physical evidence;

5) Whether defendant validly waived his right to a trial by jury;

6) Whether the trial court erred by denying defendant’s motion for continuance.

The facts disclose that three Chicago police officers conversed with an undisclosed informer at Madison and Leavitt Streets, Chicago, at approximately 11:15 P.M. on June 29, 1966. The police had been working with this informer since 1964 and information supplied by the informer on prior occasions had led to approximately 35 arrests and 18 or 19 convictions. The informer revealed that he had just purchased narcotics from the defendant at the comer of Monroe and Leavitt Streets and that the defendant was making sales to other persons at that location. The informer also indicated that the defendant was operating out of the basement at 2208 West Monroe Street and was presently in possession of heroin. The police officers, who were themselves acquainted with the defendant, proceeded immediately to the vicinity of Monroe and Leavitt Streets and placed the area under surveillance. A few minutes later the police observed the defendant coming from the basement at 2208 West Monroe Street. The police walked up to the defendant, placed him under arrest for unlawful possession of narcotics and recovered a plastic package containing two tin foil packets of heroin from his mouth. Defendant introduced a pretrial motion to suppress the evidence, i.e., heroin, which had been seized from him at the time of his arrest. The motion was denied after a hearing and defendant was tried by the court without a jury. At trial it was stipulated that the testimony adduced on the motion to suppress would be the same as that heard on trial.

Defendants initial contention concerns the trial judge’s refusal to aUow disclosure of the informer’s identity during the hearing on the motion to suppress. Though defendant was aUowed to question the arresting police officers concerning facts bearing on the informer’s reliability and credibility, he was not permitted to force disclosure of the informer’s identity. Defendant asserts that the trial judge erred in disallowing disclosure and advances three theories in support of his contention. First, he argues that the informer was a material witness and, therefore, disclosure was required under the rule in Roviaro v. United States (1957), 353 U.S. 53; second, he argues that the reliability of the informer could be adequately determined only through disclosure; third, he argues that disclosure was required because the trial judge doubted the credibility of the police officers’ testimony.

We find no merit in defendant’s first contention. Defendant was charged only with the unlawful possession of narcotics, an offense in which the informer in no way participated, and the informer was not present at the time of defendant’s arrest or during the search of his person. Hence, it is clear that the identity and testimony of the informer was neither material nor required under the Roviaro case. (McCray v. Illinois (1967), 386 U.S. 300; People v. Williams (1967), 38 Ill.2d 150; People v. Durr (1963), 28 Ill.2d 308; People v. Robinson (1969), 105 Ill.App.2d 57.) Thus, defendant’s first theory in support of his initial contention is devoid of merit because it has no application to the instant case. Likewise, his second theory, which merely echoes the dissenting view of Mr. Justice Douglas in the McCray case, has no merit. It is well established that an informer’s reliability may be determined without his presence in court or the disclosure of his identity. (See, e.g., United States v. Harris (U.S. June 28, 1971), 39 U.S.L.W. 4835.) Defendant contends, however, that the trial judge expressed doubt concerning the credibility of the police officers’ testimony and thus should have required disclosure. While this theory might be valid under more appropriate circumstances, it has no application in the instant case because the record fails to disclose that the trial judge in any way disbelieved the police officers or doubted their credibility. Defendant would have us view certain remarks of the judge out of context, but we are not so inclined. When read in context, as they must be if they are to be correctly understood, the judges remarks indicate quite clearly that he was entirely convinced, by the evidence submitted in open court and subject to cross-examination, that the police officers did rely in good faith upon credible information supplied by a reliable informant.

The arresting officers in this case testified fully and in precise detail as to what the informer told them and as to why they had reason to believe his information was trustworthy. Each officer was under oath and each was subjected to searching cross-examination. The judge was obviously satisfied that each was telling the truth, and for that reason he exercised the discretion conferred upon him by the established law of Illinois to respect the informer’s privilege. We find no reason to disturb the trial court’s judgment in this regard.

For his second contention defendant asserts that he was denied his constitutional right to confront witnesses because the trial judge sustained a number of State objections made during the defense examination of the arresting officers. An examination of the State’s objections reveals, however, that they were made upon proper evidentiary grounds, i.e., that the defense questions were not material or that they were aimed at disclosure of the informer’s identity. Hence it is clear that defendant’s claim of a deprivation of constitutional rights is without merit. See People v. McCray (1965), 33 Ill.2d 66, aff’d, McCray v. Illinois (1967), 386 U.S. 300; People v. Robinson (1969), 105 Ill.App.2d 57; People v. Bills (1967), 84 Ill.App.2d 329.

Defendant’s third contention concerns an admission he made in open court during the hearing on his motion to suppress. Defendant testified at the hearing and stated, in response to a question posed by defense counsel, that he did, in fact, have narcotics in his mouth at the time of his arrest and that these narcotics were seized by the arresting officers. Defendant did not testify at trial, however, and he now contends that the trial judge found him guilty only because the judge relied upon his pre-trial admission that he was in possession of narcotics at the time of his arrest. Such conduct, defendant argues, constituted a denial of his constitutional right against self-incrimination. In support of his contention defendant refers this court to a dialogue between the trial judge and the defense lawyer wherein the judge made reference to defendant’s pretrial admission. According to defendant, this reference by the judge “illustrated that in his thought processes on the issue of guilt or innocence the court was considering the defendant’s testimony heard on the motion to suppress.” (Def. Br. at p. 28.)

In presenting his contention, however, defendant overlooks several significant considerations. First, the rule is well-established that when the trial court is the trier of facts every presumption will be accorded that the judge considered only admissible evidence and discarded inadmissible evidence in reaching his conclusion. (People v. Robinson (1964), 30 Ill.2d 437; People v. DeGroot (1968), 108 Ill.App.2d 1.) This presumption is overcome only when the record affirmatively indicates that the inadmissible evidence was considered by the court in reaching its decision. (People v. DeGroot (1968), 108 Ill.App.2d 1, 11.) With these principles in mind we have carefully reviewed the record in this case and are of the opinion that the judge’s reference to defendant’s pre-trial admission did not affirmatively indicate that he was relying upon or considering it in relation to defendant’s guilt or innocence. Indeed, at the commencement of the trial the judge declared: "The defendant as he stands here now this defendant [sic] is presumed innocent and the State is about to put in its proof of his guilt or innocence.” Certainly this statement is strong evidence of the judge's impartiality and objectivity. Second, defendant overlooks the fact that the evidence adduced at trial was entirely sufficient to prove his guilt beyond a reasonable doubt. At trial, Officer Henry Pates testified that he arrested defendant on the evening of June 29,1966, and pursuant to a search of defendant’s person recovered two tin foil packets containing a white powder. The evidence was inventoried and forwarded to the Chicago Crime Laboratory for analysis. Shirley Linduska, a chemist employed at the crime laboratory, determined that the white powder was heroin. Defendant’s age was stipulated to be 27 years and venue was laid in Cook County. None of the foregoing evidence was controverted or contradicted in any way. Hence, defendant’s assertion that the trial judge used the pre-trial admission to supply necessary elements in proof of the offense of unlawful possession of narcotics is quite contrary to the clear facts of the case. Third, both defendant and his counsel expressly entered into a pre-trial stipulation with the State that all of the evidence adduced on the motion to suppress would be the same as that adduced on trial. The practical effect of this stipulation, whether a matter of defense trial strategy or not, was to inject defendant’s pre-trial admission into the trial. Hence, it was not improper for the trial judge to merely refer to the admission, or indeed any of the evidence adduced on the motion to suppress, during the course of the trial.

For his fourth contention, defendant alleges that the trial judge erred by failing to state the findings of fact and conclusions of law upon which the motion to suppress was denied. We find this contention to be devoid of merit. After hearing all of the evidence presented at the motion to suppress hearing, the trial judge expressly stated that he was adopting the testimony of the police officers. Next, the judge stated that the testimony was sufficient to show probable cause and he then denied the motion to suppress. Thus, the judge specifically and clearly stated the findings of fact and conclusions of law upon which his ruling was based. Defendant suggests, however, that the trial judge denied the motion only because he feared adverse newspaper publicity and because he was somehow pressured by the mere presence in court of policemen and prosecutors. This assertion, however, has no basis in either the record or in reality.

Defendant’s fifth contention concerns the validity of his waiver of a trial by jury. He argues that the trial judge erred by failing to advise him of his right to a jury trial and by failing to assure that his waiver was knowingly and understandingly made. The record, however, indicates that defense counsel made the following statement to the court upon the commencement of trial:

At this time, your Honor, the defendant being fully aware that he has a right to be tried by a jury he is signing a jury waiver and is desirous to be tried in front of his Honor at this particular time. At this time tender to the State a jury waiver.

The court acknowledged that the jury waiver had been signed in open court and accepted it. Under these circumstances, it seems clear that the principle set out in People v. Sailor (1969), 43 Ill.2d 256, 260, is controlling. There, under similar circumstances, the court said:

An accused ordinarily speaks and acts through his attorney, who stands in the role of agent, and defendant, by permitting her attorney, in her presence and without objection, to waive her right to a jury trial is deemed to have acquiesced in, and be bound by, his action.

Hence, it is our view that by virtue of defense counsel’s representations and defendant’s execution of the jury waiver form, defendant validly waived his right to a jury trial.

For his final contention, defendant argues that the court erred by denying a motion for continuance which he presented just prior to the commencement of trial. The record discloses that the alleged purpose for which defendant wanted the continuance was to locate a witness who would testify concerning “the position of defendant’s arrest.” While this purpose, as defense counsel expressed it, is somewhat unclear, it appears that defendant wanted to dispute some of the evidence which had been heard on the motion to suppress concerning the exact location of his arrest. In any event, defendant now argues that he was not permitted a reasonable time to prepare his defense and thus was denied a fair trial. We note, however, that defense counsel had entered his appearance some five months prior to trial and that he had been granted two continuances on prior occasions. Certainly this was an adequate time to prepare the defense of a relatively uncomplicated case. Moreover, defendant was in no way surprised by the appearance of unexpected State witnesses or their testimony. Indeed, defendant had been given a list of State witnesses almost five months prior to trial. Under these circumstances, therefore, we find no reason to disturb the sound discretion exercised by the trial judge in denying defendant’s motion for a continuance.

Accordingly, for the reasons we have indicated, the judgment of the trial court is affirmed.

Judgment affirmed.

BURKE, P. J., and GOLDBERG, J., concur.