author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Gregory Gordon et al., Plaintiffs-Appellants, v. Oak Park School District No. 97, a/k/a School District No. 97, Defendant-Appellee.
    (No. 59409;
    First District (3rd Division)
    November 7, 1974.

      Adam Bourgeois, of Chicago, for appellants.
    Maurice J. Garvey and David L. Schiavone, both of Chicago ( Wild-man, Harrold, Allen & Dixon, of counsel), for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiffs appeal from an order of the circuit court of Cook County granting summary judgment in favor of defendant. From September 1961 through June 1964, Gregory, David, and Tobey Lynn Gordon were students at Emerson School, a grammar school in Oak Park School District No. 97. In 1966, the children, then minors, by their mother and next friend, filed suit against the School District, claiming that defendant^ through its teachers, board members and officials, had maliciously and intentionally abused, attacked, hit, embarrassed, intimidated and harassed them, Eventually, in 1972, after their pleadings had been twice stricken, plaintiffs were given leave to file an amended complaint. In the amended complaint, plaintiffs, in some 16 sub-paragraphs, recited instances of alleged wilful and wanton conduct. Defendant moved to strike and dismiss the amended complaint, or in the alternative, for summary judgment. After considering documents filed by both sides and hearing oral argument, the trial court granted defendant’s motion for summary judgment, ruling that no genuine issue of fact on the question of malice or injury existed. We will attempt to summarize the allegations of the amended complaint.

As to Tobey Lynn Gordon, the complaint charged that her teacher broke her crayons, marked her paper with “x’s,” chased her around the classroom, refused her admittance into the reading group, placed her in an isolated section of the classroom and made her stand in the closet. Further, Tobey claimed that, on one occasion, three teachers taunted her and David with disparaging remarks concerning their personality, intelligence and ethnic background. The complaint further alleged that Tobey’s fourth grade teacher struck Tobey on the head with her fist and once kicked and bruised plaintiffs ankle.

As to David Gordon, the complaint charged that a teacher pulled his hair, referred to him as dumb or stupid, imitated his lisp and made him bite his fingernails in front of the class. Another teacher was alleged to have made disparaging remarks to the class concerning David’s conference with the school psychologist.

Plaintiffs maintained that the malicious attitude exhibited by their teachers was actuated, in part, by anti-Semitism. For instance, David claimed that his music teacher compelled him to sing Christmas carols despite the fact that he was Jewish, and that he was excused only after a conference with the school principal.

As to Gregory Gordon, the complaint charged that, by virtue of malice, he was transferred from a high reading group to a lower level group. The complaint further charged that one teacher grabbed Gordon by the nape of the neck, and on occasion, such physical contact resulted in a scratch. Additionally, Gregory charged that his teachers made disparaging remarles about him, refused to give him assignments, discharged him from the safety patrol, forced him to wipe up the floor on his hands and knees and did not allow him to play in the school band on graduation day.

The amended complaint concluded with a prayer that as a result of the alleged incidents, the plaintiffs’ nervous systems and psyches had been permanently impaired and irretrievably damaged, that their learning abilities had been retarded, and that their earning capacities had been decreased.

Accompanying defendant’s motion for summary judgment were supporting excerpts of plaintiffs’ discovery depositions. After the judge had heard oral argument on defendant’s motion and had taken the matter under advisement, plaintiffs filed a document entitled as an answer to defendant’s alternative motion for summary judgment and plaintiffs’ motion for a finding of guilty against defendant. Attached to this document were certain school records of defendant pertaining to plaintiffs plus a counter-affidavit made by plaintiffs’ mother. Thereafter, the trial court granted defendant’s motion for summary judgment. Before so ruling, the trial judge had insisted that, in fairness to plaintiffs, defendant file for the court’s consideration the entire discovery depositions of plaintiffs rather than selected excerpts. In granting defendant’s motion for summary judgment, the trial court ruled that the allegations of the complaint, when considered in light of the documents in the record, failed to establish any conduct on the part of defendant’s personnel which could be deemed wilful or malicious.

A teacher, standing in loco parentis, has the right to inflict corporal punishment so long as such action is reasonable under the circumstances. (People v. Ball (1974), 58 Ill.2d 36.) Furthermore, the use of corporal punishment by a teacher will not give rise to civil liability unless the punishment was actuated by malice or inflicted in a wilful and wanton manner. See Drake v. Thomas (1941), 310 Ill.App. 57, 33 N.E.2d 889.

This court has also recognized that within the broad delegation of parental authority, a teacher has the right to verbally chastise a pupil. (Wexell v. Scott (1971), 2 Ill.App.3d 646, 276 N.E.2d 735.) In Wexell, this court held that plaintiff failed to state a cause of action when he alleged that his teacher intentionally humiliated, degraded and shamed him with disparaging remarks. Relying on the provisions of the Local Government Tort Immunity Act (Ill. Rev. Stat. 1965, ch. 85, pars. 1 — 202, 1 — 206, 1 — 207), the court held that absent allegations and proof of wantonness or malice, neither the teacher nor the School District could be held liable.

Under the Tort Immunity Act, a school district can be held liable for the wanton or malicious acts of its employees. However, under the terms of the Act, absent proof of malice or wantonness, liability is absolutely precluded, and plaintiffs in their brief so concede.

On appeal, the present plaintiffs contend that the entry of summary judgment was improper inasmuch as, on the material presented, reasonable persons could come to different conclusions as to whether malice or injury had been shown. Plaintiffs maintain that a genuine issue of fact did exist, and that they were entitled to a trial. We have held that the Local Government Tort Immunity Act is applicable. Therefore, plaintiffs were required to create an issue of fact that the employees of defendant, in their relations with the plaintiffs, were actuated by malice or were wilful and wanton. The trial court found that plaintiffs failed to create an issue of fact as to malice or injury. After a thorough examination of the record, we are bound to agree.

The purpose of summary judgment is not to try facts, but to determine whether a genuine issue exists as to any material fact which would require a jury trial. (Fountaine v. Hadlock (1971), 132 Ill.App.2d 343, 270 N.E.2d 222.) Where the pleadings, depositions and affidavits on file show that there is no genuine issue as to any material fact, and the moving party is entitled to a judgment as a matter of law, it is not only proper, but it is the duty of tire trial court to enter summary judgment. (Decatur Construction, Inc. v. Central Illinois Public Service Co. (1974), 16 Ill.App.3d 1056, 307 N.E.2d 431; Kirby v. General Motors Corp. (1973), 10 Ill.App.3d 92, 293 N.E.2d 345.) When more than one inference could be drawn from undisputed facts, a triable issue exists and summary judgment may not properly be granted. (Lumbermens Mutual Casualty Co. v. Poths (1968), 104 Ill.App.2d 80, 243 N.E.2d 40.) However, where undisputed facts give rise to a single inference, summary judgment should be entered. (Brehm v. Dobson (1973), 15 Ill.App.3d 285, 304 N.E.2d 149.) On defendants motion for summary judgment plaintiffs were obligated to set forth facts that would satisfy their burden of showing malice. If such facts were not presented, summary judgment was properly entered. Snead v. Forbes, Inc. (1971), 2 Ill.App.3d 22, 275 N.E.2d 746.

An act is wilful and wanton if it is committed intentionally or under circumstances exhibiting a reckless disregard for the safety of others, such as failure, after a knowledge of impending danger, to exercise ordinary care to prevent injury, or failure to discover a danger through recklessness or carelessness. (Hocking v. Rehnquist (1969), 44 Ill.2d 196, 254 N.E.2d 515; Breslin v. Bates (1973), 14 Ill.App.3d 941, 303 N.E.2d 807.) The term malicious refers to the doing of a wrongful act intentionally and without just cause. Meadowmoor Dairies, Inc. v. Milk Wagon Drivers Union (1939), 371 Ill. 377, 21 N.E.2d 308.

In the present case, plaintiffs offered no facts which could be construed as supporting their allegations of wilful and wanton misconduct. In light of the admissions made by plaintiffs during their discovery depositions, in view of their mother’s deposition and counteraffidavit, and the information contained in the school records offered by plaintiffs themselves, the trial court was correct in finding no genuine issue of fact on the issue of malice. It is difficult to elaborate on the circumstances surrounding each and every aHegation of wffful and wanton conduct. Some examples are iHustrative.

In her deposition testimony, Tobey admitted that the disciplinary measures employed by her teachers were precipitated by her own misbehavior. The instance described in the complaint as a teacher striking her on the head with a fist was characterized as a rap on the head to get Tobey’s attention. Tobey’s foot was kicked after she had placed it out in the aisle.

David’s deposition testimony revealed that his teacher’s disparaging remarks came at a time when he was failing nearly every subject. Corporal punishment was employed only when he failed to pay attention, talked in class or performed poorly on an assignment. David was excused from the Christmas program as soon as his mother mentioned it to the principal, and David was permitted, along with the older boys, to serve as an usher.

During his deposition, Gregory conceded that he never was “forced to wipe up water from the floor on his hands and knees” as charged in the complaint. When his teacher told him to wipe up water he had spilled, Gregory refused and left the school without permission. The complaint charged that Gregory’s teacher refused to give him assignments. His testimony revealed that this occurred only after Gregory had failed to hand in 16 previous assignments. Gregory did not play in the school band on graduation day because the school administration believed drums would be too loud in a crowded auditorium. Gregory also conceded that he was grabbed by the nape of the neck only when he talked or otherwise disturbed the class.

The school records of Tobey and David, offered by plaintiffs in opposition to defendant’s motion, contained nothing which could be deemed as indicating malice. On the contrary, the teachers’ notations showed a concern for David’s health problem and an attitude of encouragement. The school physician found Tobey immature, yet the remarks of her teachers reflected concern and an effort to help her “make the best use of her potential.”

The counteraffidavit and deposition testimony of plaintiffs’ mother offered no factual support for plaintiffs’ charge of malice or their claim of injury. The testimony, replete with conclusions, hearsay and other incompetent statements, including accusations against other schools, did not create an issue of fact that the conduct of defendant’s personnel was malicious. The mother admitted that her children had never received medical or psychological treatment as a result of their experiences at Emerson School. In fact, she stated that each of the plaintiffs enjoyed academic success at the high school and college level. Nor did the mother’s testimony support the complaints allegation that the plaintiffs’ nervous systems and psyches had been permanently impaired and damaged. Hie mother testified, “My children are not now nor ever have been maladjusted.”

Summary judgment is available in all appropriate cases in Illinois, including those in which good faith, purpose, malice, reasonableness, or other states of mind are in issue. (Brisken v. Brisken Manufacturing Co. (1972), 6 Ill.App.3d 740, 286 N.E.2d 571; Snead v. Forbes, Inc. (1971), 2 Ill.App.3d 22, 275 N.E.2d 746.) Having considered the record, we find no facts which in any way tend to support plaintiffs’ aHegations of malice and injury on the part of defendant personnel. The trial court correctly found that there was no genuine issue of fact.

Plaintiffs argue, however, that summary judgment was improper because, if a trial had been held, they would have produced witnesses whose testimony would have substantiated “most, if not all” of their aHegations. This contention is without merit. On defendant’s motion for summary judgment, plaintiffs were obligated to bring forth all facts and evidence that they believed would satisfy their burden of proving wilful and wanton conduct. (Snead v. Forbes, Inc.) Having failed to present these facts by way of counteraffidavit during the summary judgment proceedings, plaintiffs cannot now rely on such possible witnesses to substantiate their claims.

For the reasons stated, the order of the circuit court of Cook County-granting summary judgment to defendant is hereby affirmed.

Order affirmed.

DEMPSEY and MEJDA, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Glenn Benes, Defendant-Appellant.
    (No. 59118;
    First District (5th Division)
    November 8, 1974.
    James J. Doherty, Public Defender, of Chicago (Paul D. Katz, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Rea Markin, and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE BURMAN.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Smith, Defendant-Appellant.
    (No. 59710;
    First District (4th Division)
    November 13, 1974.
    Paul Bradley and Allen L. Wiederer, both of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and William F. Linkul, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE BURMAN.


author: Mr. JUSTICE HALLETT.

text:
    William Henderson, Plaintiff-Appellee, v. Ida Backus, Defendant-Appellant.
    (No. 58319;
    First District (1st Division)
    November 18, 1974.
    Clausen, Hirsh, Miller & Gorman, of Chicago (James O. Nolan and James T. Ferrini, of counsel), for appellant.
    Goldberg & Goldberg and Torshen, Fortes & Eiger, Ltd., both of Chicago (Jerome H. Torshen and Maria A. Elden, of counsel), for appellee.
   Opinion by

Mr. JUSTICE HALLETT.


text:
    Trudy Gomberg, Plaintiff-Appellant, v. Raymond Gomberg, Defendant-Appellee.
    (No. 59718;
    First District (1st Division)
    November 18, 1974.

      Rehearing denied December 17,1974.

    Rinella and Rinella, of Chicago (Owen L. Doss, of counsel), for appellant.
    L. Louis Karton, Ltd., of Chicago, for appellee.
   PER CURIAM.


author: Mr. JUSTICE CREBS

text:
    Dorothy M. Juen, Plaintiff-Appellee, v. Kenneth J. Juen, Defendant-Appellant.
    (No. 74-146;
    Fifth District
    November 14, 1974.

      Kenneth J. Juen, pro se.

    Mudge & Riley Law Offices, of Edwardsville, for appellee.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

The parties here involved were divorced by a decree of the Circuit Court of St. Clair County on April 25, 1972. On September 21, 1973, plaintiff filed a petition to modify the decree as to alimony and child support. After hearing evidence, on April 4, 1974, the Circuit Court of St. Clair County entered an order increasing the amount of alimony and child support. Defendant has appealed, claiming there was no basis for the increase. Plaintiff has cross-appealed, claiming that the amount of the increase was insufficient.

Defendant contends that there was not enough change of conditions shown to justify a modification of the prior decree, nor was there any basis for increasing the amount. Plaintiff contends that the evidence justifies a more substantial increase.

The evidence as to changed circumstances was as follows: At the time of the divorce plaintiff was a full-time clerk-typist with the Kaskaskia Library System. Subsequently the Kaskaskia Library System moved from Belleville to Smithton. Plaintiff testified that due to the move and other circumstances she was forced to terminate this employment, and she is now working part time at approximately one-fourth her former salary. She also testified that as the children were now older their clothing and school expenses were higher. She further testified to higher expenses due to inflation; however, such higher expenses also apply to defendant. There was a conflict in the evidence as to defendant’s earnings, but there was a reasonable basis for the trial court to find that actual earnings for at least 1 year had been considerably above the amount estimated at the time of the divorce.

Without further detailing the evidence, we find that there was a sufficient showing of change of circumstances to warrant a modification of the amount of payments. We also find that the amounts fixed are reasonable under all the circumstances.

Finding no merit in either the appeal or the cross-appeal, the judgment of the Circuit Court of St. Clair County is affirmed.

G. MORAN, P. J., and EBERSPACHER, J., concur.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Charles M. Howell, Petitioner-Appellant.
    (No. 72-270;
    Fifth District
    November 15, 1974.
    Robert E. Farrell, of Mt. Vernon, and Martin Carlson, of Chicago, both of State Appellate Defender’s Office, for appellant.
    W. C. Spomer, State’s Attorney, of Cairo, for the People.
   PER CURIAM.

CARTER, J., took no part.


author: Mr. PRESIDING JUSTICE EGAN

text:
    Richard H. Farrell, Jr., et al., Plaintiffs-Appellants, v. Lincoln National Bank et al., Defendants-Appellees.
    (No. 57903;
    First District (1st Division)
    October 7, 1974.

      Sidney A. Karasik, of Chicago, for appellants.
    Nathan N. Powell, of Chicago (Marovitz, Powell, Pizer & Edelstein, of counsel), for appellee Lincoln National Bank.
    Myron Lieberman and Robert L. Schlossberg, of Chicago (Lieberman, Levy, Baron & Stone, of counsel), for appellees Bankers Consultants Corporation, Bankers Consultants Corporation-North, Mortgage Service Corp., and Craig L. Opper.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The plaintiffs, Richard H. Farrell, Jr., and Kristi L. Farrell, filed a class action complaint against Lincoln National Bank (hereafter the Bank), Bankers Consultants Corporation, Bankers Consultants Corporation-North and Mortgage Service Corporation (hereafter the Brokers), and Richard Dryer and Craig L. Opper. A summons was never served on Diyer.

On August 18,1971, the court dismissed the complaint against the Bank as a class suit. The plaintiffs then filed an amended complaint, and on January 17, 1972, the court dismissed the entire complaint as to Craig L. Opper and part of the complaint as to the Brokers. Both sides filed motions for summary judgment and on June 14, 1972, the court allowed the motion of the defendants and denied the plaintiffs’ motion. The plaintiffs appeal from the order dismissing their class action complaint, the order dismissing Opper, the order granting the defendants’ motion for summary judgment and the order denying the plaintiffs’ motion for summary judgment.

The record consists of the pleadings, affidavits, depositions, exhibits and answers to interrogatories. It discloses the following:

On January 12, 1966, the plaintiffs had borrowed $17,900 from Home Federal Savings & Loan Association of Chicago and had given a mortgage on their residence as security. In April, 1970, the plaintiffs borrowed $3500 from Harris Mortgage Loan Corporation secured by a junior mortgage on their residence. The Harris mortgage loan was for a period of 30 months payable in monthly installments of $148.14 including interest at an annual rate of 19.5%.

On January 18, 1971, Richard Dryer, representing Bankers Consultants Corporation, called the plaintiffs. He told them that he knew that they had a loan with Harris Loan Company, that he could secure a loan for them through a bank and that they would be paying the bank interest rates which were much lower than the rates they were paying to Harris, thus saving a few hundred dollars on the interest. The plaintiffs testified in their depositions that Dryer made it clear that the bank would pay their fee and that the plaintiffs would not be required to pay them anything.

They went to the officers of Bankers Consultants Corporation at 10400 Higgins Road in Rosemont and met the defendant Craig L. Opper, who explained the advantages of consolidating their debts and paying them off with a single bank loan. The plaintiffs signed a “Retention Authorization” by the terms of which the plaintiffs authorized Bankers Consultants to negotiate a bank loan in the amount of $4300 “or such other amount as might be mutually satisfactory”; the loan was to be negotiated at a State or national bank only; the net proceeds of the loan after payment of costs and “the fee of Bankers Consultants Corporation” would be $3775. The loan payments, including credit life insurance and all costs, were not to exceed $118.61 per month.and the term of the loan was not to exceed 4 years. The collateral was to consist of a trust deed on the plaintiffs’ residence. The agreement also provided:

“In the event that the said loan is successfully negotiated for and is accepted by the undersigned, the undersigned agrees to pay to Bankers Consultants Corporation an amount equal to $525 to cover its fee and aH costs which it wHI incur. * * * Bankers Consultants Corporation is authorized to cause the bank to disburse said amount to the order of Bankers Consultants Corporation from the principal amount of the loan at the same time as the net proceeds of the loan are paid to tire undersigned.
# e #
Unless a loan commitment, in accordance with the above terms, is obtained by Bankers Consultants Corporation and is accepted, there shall be no obhgation on the part of the undersigned. The undersigned acknowledges that he has signed this authorization after carefuHy considering the terms hereof and that he has received a copy thereof.”

Mrs. Farrell testified that when Opper mentioned a $500 service charge she was “kind of taken aback for a few minutes because the man on the phone said there would be no charge at all.” Opper explained that the $500 would be part of the loan and that the Bank would be lending them the money to pay for the service charge. Mr. Farrell testified:

“I couldn't believe that somebody would go to aH this trouble for nothing, so then it came up with his fee would be $525.
First he said, $500 then he corrected himself and said $525.
Now, I went in there thinking there was no charge. He convinced me this was a way out of debt. I could get my head above water and if I could stay clean for five years, I would be out of debt, so then he gave us this retention authorization form, I asked him, ‘If we sign this, does this mean we owe you the $525 whether or not we can get the loan or not,’ and he stated, ‘If you don’t get the loan you don’t owe us a thing, but if on the other hand, I go ahead and do your credit check and everything like that and you change your mind I can’t do this for nothing.’
He didn’t say, Tou would have to pay me.’ He says, 1 can’t do it for nothing, so if you don’t want the loan or you are not interested in it, don’t sign it,’ so my wife and I put our heads together for a minute and we decided that we were at the end of the rope so we better give it a try, so we signed it.”

On February 12, 1971, Bankers Consultants negotiated a loan on behalf of the plaintiffs with Lincoln National Bank. The loan was evidenced by an installment note in the total sum of $5693.28 payable in 48 monthly instalments of $118.61 including certain “add-on” finance charges at a purported annual percentage rate of 19.75%. The loan was secured by a trust deed on the plaintiffs’ residence.

Lincoln National delivered to the plaintiffs a document purporting to be a full disclosure of information concerning the particulars of the loan as required by the Federal Truth-In-Lending Act (15 U.S.C. § 1601 et seq. (1970)) and Regulation Z thereunder as well as the Illinois Interest Statute (111. Rev., Stat. 1969, ch. 74, § 4A). That statement showed:

“FINANCE CHARGE, consists of:..............$1,770.26
Service Charge ...................$ 525.00
Interest..........................$1245.26”

The plaintiffs’ principal argument is that the Brokers were the agents of the Bank; therefore, the fee disbursed by the Bank to the Brokers, listed as a finance charge on the disclosure statement, should not have been included in the total amount on which the plaintiffs were paying interest, but, rather, was itself interest. Thus, the interest charged by the Bank violates the usury statute. Alternatively, whether the Brokers were the agents of the Bank was a question of fact which could not be resolved by summary judgment.

It is the settled law in Illinois that “[bjrokers negotiating a loan of another persons money may charge the borrower a commission without thereby making the loan at the full rate of legal interest usurious.” (Council v. Bernard, 319 Ill. 392, 397, 150 N.E. 272.) But if a fee is paid to a lender’s agent for making the loan, with' the lender’s knowledge, the amount of the fee is treated as interest for the purposes of determining usury. Fowler v. Equitable Trust Co., 141 U.S. 384; Payne v. Newcomb, 100 Ill. 611; 35 I.L.P. Usury § 5, at 431 (1958).

The burden of proving agency is on the party asserting it (People & E. Ry. Co. v. Kenworthy, 7 Ill.App.3d 350, 353, 287 N.E.2d 543); and it must be established by a preponderance of the evidence. (Abt v. Department of Revenue, 34 Ill.2d 324, 215 N.E.2d 243.) The nature and extent of an agency are facts to be proved, but the question becomes one of law where the evidence is not disputed. Marshall Milling Co. v. Rosenbluth, 231 Ill.App. 325.

The essence of the agency relationship has been described in Hoffman & Morton Co. v. American Insurance Co., 35 Ill.App.2d 97, 102, 181 N.E.2d 821:

“The distinguishing characteristic of an agent is that he represents another contractuaUy. When properly authorized, he makes contracts or other negotiations of a business nature on behalf of his principal, by which his principal is bound. (Mechem, Outlines of the Law of Agency, 1952 Ed, p 4.) An agent is generaHy defined by the IHinois courts as being one who undertakes to manage some affairs to be transacted for another by his authority, on account of the latter, who is called the principal,’ and to render an account. Dean v. Ketter, 328 Ill.App. 206, 210, 65 N.E.2d 572 (1946).”

The affidavits of Harold Isaacson, vice president of the three broker-defendants and Henry J. Bertoechini, executive vice president of the Bank, established the following:

Between April, 1970, and September, 1971, the broker-defendants submitted a number of loan applications to the Bank on behalf of the broker-defendants’ customers. The Bank played no part in the broker-defendants’ decision to submit any application to it. The broker-defendants submitted loan applications on behalf of their customers to more than six other banks. During this period, the Bank made a substantial number of installment loans to persons other than customers of the broker-defendants, including persons who were customers of other loan brokers.

The' Bank rejected some of the loan applications submitted to it by the broker-defendants. In other instances, the Bank agreed to make the requested loans but only on terms other than the terms requested by the broker-defendants. Those decisions were made by the Bank after it reviewed the customer’s credit information. If the broker-defendants were unable to persuade the Bank to make the requested loan, the broker-defendants attempted in some instances to obtain the loan from another bank. If the Bank desired to make a loan on terms other than those requested, the broker-defendants contacted their customer to determine if the new terms were acceptable. In some instances the new terms were acceptable to the customer, and in some instances the new terms were rejected. When the Bank in its sole judgment considered it necessary, it independently verified the credit information submitted by the broker-defendants and independently obtained further credit information.

.None of the broker-defendants ever had any authority of any kind with regard to the granting of loans by the Bank. The broker-defendants did not guarantee to the Bank or agree with the Bank to be responsible for the accuracy of the credit information which the broker-defendants obtained or the accuracy of the documents evidencing or securing the loans. None of the broker-defendants ever had any authority or responsibility of any kind in connection with the repayment of loans. The broker-defendants never collected or serviced the loans after the loans were made. At no time did they exercise any authority of any kind concerning renewals or extensions of any loans. The decision whether, and upon what terms, to grant a loan was solely that of the Bank. Once a loan was granted, all further decisions and actions in connection with the loan were also the sole responsibility of the Bank.

The decision whether, and upon what terms, to submit a loan application to the Bank was solely that of the broker-defendants, based upon such factors as the Bank’s proximity to the customer’s residence and place of employment, the credit-worthiness of the customer and the broker-defendants’ judgment concerning the availability of funds at various banks for the type of loan desired.

The Bank never had any agreement of any kind, written or oral, with the broker-defendants concerning the brokerage fees which they charged their customers, nor did the Bank ever make any decision with regard to the amount or any other aspect of such fees. The Bank never received any portion of the fees. It never suggested in any way how or in what manner the broker-defendants were to obtain payment of the fees. As with the plaintiffs, the broker-defendants and their customers agreed on the amount of the fees, the circumstances under which the fees would be payable and the manner of payment prior to any dealings with the Bank and prior to the decision of the broker-defendants to submit a loan application to the Bank. Although the Bank was aware that the broker-defendants had written authorizations from their customers to negotiate on behalf of the customers, the Bank was not given a copy of the retention authorization and was not specifically informed of its contents. It was the Bank’s understanding that the broker-defendants acted on behalf, and were the agents, of their customers.

This testimony clearly establishes that the broker-defendants had no authority to bind the Bank in any manner, nor did the Bank have any right to control the actions of the broker-defendants, and the circumstances the plaintiffs rely on to establish an inference of agency are not sufficient to overcome the affidavits of Isaacson and Bertocchini.

The plaintiffs point to the fact that before the loan was made Bankers Consultants obtained information relating to the financial condition of the plaintiffs, a preliminary title report for the plaintiffs’ residence, for which it was compensated by the Bank and similar information important to a lender; that the Bank relied exclusively on the information supplied by the brokers and did not examine the property of the plaintiffs; and that the brokers prepared the notes, the trust deed, the disclosure statement, and the notice of rescission.

It is not unusual, as the Bank points out, for tim'd persons, e.g., home improvement contractors, automobile dealers, real estate brokers, attorneys and accountants to assemble credit information for a lending agency. Could anyone suggest that an automobile dealer, anxious to sell a car to a person who required financing, became the agent of the lender because the dealer compiled credit information for the lender’s use? We think not. Nor could the fact that the brokers typed in the blank spaces on the printed documents create an inference of any agency relationship. Needless to say, a loan broker gets no fee unless the borrower successfully negotiates the loan. Hie broker may understandably perform any number of accommodations for the lender in an effort to induce him to make the loan. But those acts of accommodation are based on self-interest and not on any desire to further the interests of the lender. A simüar argument was made and rejected in Great Southern Life Insurance Co. v. Williams (Tex. Civ. App. 1939), 135 S.W.2d 241, 247; in Merck v. American Freehold Land Mortgage Co. (1887), 79 Ga. 213, 7 S.E. 265, 268-269; and in Shaffran v. Holness (Fla.App. 1958), 102 So.2d 35, 40.

Bankers Consultants was previously known as Steven-Bruce Investment Company. Under that name it had published and circulated a letter stating in part as follows:

"CHICAGO GROUP OF BANKS APPROVED $16 MILLION PROGRAM FOR HOMEOWNERS.
Recently, a group of Chicago Banks appointed Steven-Bruce Investment Co. Loan Representative for a New 16 Million-Dollar Bank program.
The Bank funds will be used to offer Homeowners 1 to 5 years, large, personal loans $1500-$7500. The program is designed to stop Homeowners from borrowing money from loan companies and finance companies and to curtail charge accounts and charge cards.”

Under the letterhead of Steven-Bruce Investment Company, Brokers Consultants published and circulated a letter dated October 20, 1969, offering to various Chieago-area banks a package “loan arrangement” service whereby Steven-Bruce Investment Company, also known as Bankers Consultants, would perform various services for and as agent for tire bank in soliciting loans, preparing and screening loan applications, conducting loan negotiations, investigating credit, evaluation of the loan, preparation of loan documents, and facilitating loan closings.

The plaintiffs contend that this evidence, consisting of statements of the purported agent may be considered to establish the fact of agency.

■ In Fredrich v. Wolf, 383 Ill. 638, 640, 50 N.E.2d 755, the applicable rule was stated:

“It is weU settled that where the existence of an agency is an issue in a case, where the alleged principal is a party, the mere statements of the agent made out of the presence of the principal and not subsequently approved by him are not admissible to establish the existence of such relationship.”

The plaintiffs rely on Grebe v. Vacek & Co., 103 Ill.App.2d 79, 85, 243 N.E.2d 438, wherein the court said: •

“The defendant also contends that plaintiff cannot prove that Rusin was an agent for the defendant by what Rusin said and did, and cites Sommerio v. Prudential Ins. Co. of America, 289 Ill.App. 520, 7 N.E.2d 631, for the rule that a supposed agent’s statements and acts are incompetent by themselves to prove an agency relationship. We do not disagree with this statement, but an alleged agent’s statements are relevant when it is shown that the alleged principal has consented or ratified such statements.”

But neither the Bank nor its employees (nor the plaintiffs) had seen the circular before the suit was filed. It was issued without the authority or consent of any bank; it had been distributed almost 2 years before the broker-defendants submitted any loan applications to the Bank and over 2% years before the loan in question. The letter was in no way a statement of fact that the Brokers were acting as an agent but, rather, was a solicitation by the Broker for the Bank’s business.

It is clear that the exhibits are not statements by the Brokers that they were acting as representatives of Lincoln National Bank. But even if so construed, they may not be considered to establish the agency relationship since the record establishes that the Bank never ratified, or consented to, the statements.

As noted, the disclosure statement under the Federal Truth-In-Lending Act and Regulation Z included the broker’s fee as a service charge. In their original brief the plaintiffs argued that the Federal Truth-In-Lending Act, Regulation Z (12 C.F.R. § 226.2(f) (1973)) and the Illinois Truth-In-Lending Act do not require that fees paid to other than the lender be disclosed to the borrower. The thrust of the plaintiffs’ argument is that, since the Bank did disclose the service charge, the Bank must have considered it as its own fee rather than a third party’s. The Bank’s; brief argues, with appropriate authority cited, that it was required to disclose the fees of all “creditors” under the Federal act and Regulation Z. In their reply brief, the plaintiffs have not answered the argument of the Bank but rely only on the Illinois statute. We deem the plaintiffs’ reasoning unpersuasive. If the Federal act requires that the lenders disclose a certain fact and the Illinois act does not require it, we fail to see how compliance with the Federal act can be construed as an admission simply because disclosure was not also required under a state law.

We judge, therefore, that the evidence relied upon by the plaintiffs' to support an inference of agency is of no probative value and the evidence so overwhelmingly favors the defendants that any finding of agency could not be permitted to stand. The trial court correctly ruled, as a matter of law, that the brokers were the agents of the plaintiffs only.

The plaintiffs also contend that the loan violated the Federal and Illinois Truth-In-Lending Statutes on the grounds (1) that the disclosure. was not timely; and (2) the $525 finders fee was made non-refundable even if the plaintiffs had rescinded. The case relied on by the plaintiffs in their contention that the disclosures were not timely, Bissette v. Colonial Mortgage Corp.(D.D.C. 1972), 340 F.Supp. 1191, was reversed in 477 F.2d 1245. The Court of Appeals held that disclosure at the time of closing was timely. See also Stavrides v. Mellon National Bank &Trust Co. (W. D. Pa. 1973), 353 F. Supp. 1072.

The Illinois Interest Act on prepayment of a loan requires a partial refund only of interest and insurance charges. As we have pointed out, the finder’s fee was not interest. The Federal Truth-In-Lending Act provides, if a borrower exercises Ms right to rescind, he is not liable for any “finance or other charges.” (15 U.S.C. § 1635(b) (1970).) The plaintiffs concede, however, in their reply brief that if the Brokers were solely agents for the borrowers, the fee would not have to be returned in the event of rescission or prepayment. The record fails to show any violation of the Federal or State Truth-In-Lending Statutes.

For these reasons we judge that the trial court properly granted summary judgment in favor of the defendants; and since tire plaintiffs cannot successfully maintam their action individually, the class action must thereby fall. De Phillips v. Mortgage Associates, Inc., 8 Ill.App.3d 759, 764, 291 N.E.2d 329.

In view of the foregomg, it is unnecessary for us to determine whether national banks are exempt, as the Bank argues, from State usury laws. The judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE and GOLDBERG, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Johnson, Defendant-Appellant.
    (No. 58748;
    First District (3rd Division)
    October 17, 1974.

      James J. Doherty, Public Defender, of Chicago (Daniel Miranda and Suzanne M. Xinos, Assistant Public Defenders, of counsel), for appellant.

      Bernard Carey, States Attorney, of Chicago (Kenneth L. Gillis and Thomas A. Manet, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Along with Robert Douglas (not involved in this appeal), defendant, William Johnson, was charged with two counts of armed robbery. Douglas’ motion for a severance was granted. After a bench trial, defendant was found guilty of the crimes charged, and was sentenced to 7 to 15 years, the sentences to run concurrently.

The issues presented are whether defendant’s absence from the trial denied him due process; whether the court erred in denying defendant’s motion for a substitution of counsel; whether the court properly denied defense counsel’s motion to withdraw from the case; whether the court erred in denying defendant’s motion for a change of venue; whether the court committed reversible error in proceeding to trial without ruling on a pretrial motion to suppress statements; whether the court erred in the admission of certain evidence; whether the evidence adduced on one of the two counts of armed robbery was sufficient to prove defendant guilty beyond a reasonable doubt; and whether defendant’s warrantless arrest was legal.

On the day prior to trial, after the trial court had denied defendant’s motion to quash the arrest and dming a hearing on defendant’s motion to suppress oral statements, defendant requested a continuance to prepare his case with another attorney. He also requested that a bar association attorney be appointed. The trial court denied both requests. The public defender had been appointed at arraignment, and the assigned assistant had actively engaged in pretrial activities. He had filed motions for discovery, to reduce bond, to quash the arrest, and to suppress certain statements.

On trial date defendant filed a pro se written petition for an “interlocutory injunction” requesting time to obtain an attorney other than the public defender. The court denied the petition. Defendant then filed a written petition for other counsel. The court rejected the petition as coming too late. Defendant asked if the record would show that the public defender was not representing him. The judge replied that the public defender was his attorney. After defendant waived a jury trial, the public defender objected to proceeding to trial because defendant did not wish to be represented by him, and because the court had reserved its ruling on defendant’s motion to suppress tire statements. As the trial judge started to explain why he was proceeding to trial without ruling on the motion, the prosecutor stated that the prosecution would not introduce the statements made by defendant. The court thereupon overruled defense counsel’s objection.

After a short recess, defendant made an oral motion for a change of venue, which was denied. Defendant stated that he would not stand trial without an attorney. Defendant refused to sit down unless he had counsel of his own choosing. The trial judge informed the defendant that if he wished to be present he would have to be seated. Defendant stated that he was not waiving his right to be present at trial, but repeated that he would be seated only if he were furnished an attorney of his own choosing. The trial judge then ordered defendant removed and that the trial proceed in his absence. The judge subsequently stated that he had only two options: to exclude defendant or to have him bound and shackled.

However, before the first witness was called, the judge requested that the defendant be returned to the courtroom. The bailiff reported that tile defendant did not wish to come back out. The court then informed defendant through his attorney that any time the defendant wished to return to participate in the proceedings and confront the witnesses he should so indicate to the bailiff and he would be returned to the courtroom.

Shortly thereafter, at the request of the court, defense counsel went to the lockup to speak to the defendant. When counsel returned, he informed the court that defendant wished to return to the county jail. The public defender’s request to withdraw as defendant’s attorney was again denied. The trial court instructed the bailiff to inform the defendant that he would have the opportunity to return to the courtroom whenever he wished. The door to the bullpen was left ajar for his return. The bailiff reported to the judge that, when so informed, defendant said he wanted a bar association attorney.

During the testimony of one of the prosecution witnesses, defendant entered the courtroom. He stated that he needed one of his motions stamped by the clerk. When asked if he wished to remain in the courtroom, defendant responded that he was returning to the bullpen. The trial judge emphasized that defendant was free to return and confront the witnesses. Defendant replied that he was not waiving his right to be present at his trial, but that he did not have an attorney.

At trial, Mrs. Lottie Flanagan testified for the State that she was defendant’s aunt. On April 24, 1972, defendant and another man came to her apartment in the city of Chicago. After a short conversation, defendant placed a knife to her throat. Defendant forced her to go upstairs to get her camera, television set, and radio. Defendant and she returned downstairs, where he compelled her to empty the contents of her purses on a bed. When defendant suddenly started shaking, Mrs. Flanagan ran out to a neighbor’s home and called the police. Meanwhile, defendant fled.

Miss Catherine Riddle, an 18-year-old student, testified that on the same afternoon she was seated in her auto in front of her home. She was about to take her 2-year-old sister to the store. The witness lived a few blocks from Mrs. Flanagan. A man suddenly opened the caí- door on the driver’s side and put a knife to her face. His face was very close to her. He said that he needed a car, pushed her over, and started to drive. As he drove off, Miss Riddle screamed and pushed her sister out the door. The assailant grabbed her arm, put the knife to her throat, and demanded her purse. The witness gave the assailant her purse and jumped out of the car. As Miss Riddle’s father ran up, the robber drove off. She gave the police an identification a few minutes later.

Miss Riddle identified the robber as having something on his head which was reddish. He was wearing a brightly colored tie-dyed T-shirt, and blue jeans. The whole incident took about 5 minutes. At trial, Miss Riddle testified that she saw the knife when defendant entered the vehicle. She testified at an earlier hearing that at first she did not see the knife.

Three weeks after the occurrence, Miss Riddle viewed seven photographs of seven black men at the police station. She identified defendant from one of the photographs. She again saw defendant a few weeks later at a preliminary hearing. Miss Riddle testified at trial that she did not see the robber in the courtroom, but stated that she had seen him in the courtroom on the previous day. At that time, he wore a red jacket, blue pants, brown shoes, and had a crew haircut and hair around his chin. The trial court ordered that the record show that was. the manner defendant was attired on the previous day. The State requested that the record reflect that the witness in fact had identified the defendant. The court indicated that he would so rule. However, when defense counsel objected to such an identification as a conclusion, the trial court requested additional bailiffs to be brought to court preparatory to having defendant brought into open court. The court commented that defendant hád caused no commotion, but that it wished the additional personnel to be on the safe side. The judge was then informed that defendant refused to enter the courtroom. The judge, stating that he wished to avoid a carnival or a blood bath by forcibly having defendant brought into the courtroom, held that the identification made by Miss Riddle was adequate. Defense counsel moved for a mistrial on the grounds that the judge had by his ruling decided one of the ultimate issues of the case. The motion was denied.

At the conclusion of the States case, defense counsel renewed his motion for a mistrial citing the atmosphere created by the additional security. The trial judge responded by listing his reasons for the additional bailiffs: the defendant’s physical size, his earlier refusal to sit down, and his glances to the back door of the courtroom. The judge, however, commented that defendant had always maintained a courteous demeanor and at no time caused a commotion in the court. The judge denied the motion for a mistrial.

After denying the defense motion for a directed finding of not guilty, the court instructed defense counsel to inform the defendant of what had transpired. Defendant again stated that he wished to return to the county jail. When called to present a defense, the assistant public defender stated that the defense neither rested nor did not rest. The court then entered a finding of guilty on both charges.

Along with the prosecutor and defense counsel, the trial judge entered the bullpen adjoining the courtroom to advise defendant that he had been found guilty of two counts of armed robbery. Defendant was advised that he could attend the hearing in aggravation and mitigation in open court, and that his attorney’s motion for a new trial and in arrest of judgment had been denied. Defendant stated that he had no attorney, and requested a transcript of the hearing, a stay, appointment of an attorney, and a new trial. Defendant refused further answers to the judge’s inquiries, except to say that he would not waive any right “by his failure to attend the hearing.”

The trial court declined to forcibly require the defendant’s presence at sentencing. At the conclusion of the hearing in aggravation and mitigation in the absence of defendant, the court imposed sentence. The court also instructed the public defender to prepare a notice of appeal and petition for a transcript.

The primary issue presented is whether defendant’s absence from the trial denied him due process and a fair trial.

It is fundamental that an accused has the right to appear and defend in person as well as by counsel; that he has the right to confront witnesses against him; and that he is entitled to participate at every stage of the trial. Snyder v. Massachusetts (1934), 291 U.S. 97; Pointer v. Texas (1965), 380 U.S. 400.

In Illinois v. Allen (1970), 397 U.S. 337, the United States Supreme Court considered whether an accused could claim his right to remain in the courtroom at his own trial when he engaged in exceedingly disruptive conduct. Allen had been tried in Illinois for armed robbery. During his trial, he repeatedly disrupted the proceedings with abusive remarks to the court, threatened the judge’s life, and stated that under no circumstances would be aHow the trial to continue. The judge removed him from the courtroom. Although Allen was later readmitted, the trial had proceeded in his absence.

When the Illinois Supreme Court affirmed his conviction (People v. Allen (1967), 37 Ill.2d 167, 226 N.E.2d 1). AHen filed a habeas corpus petition in the Federal district court attacking his conviction on the ground that his exclusion from the courtroom violated his constitutional right to be present. After the district court declined to issue the writ, the court of appeals reversed, holding that a defendant’s sixth-amendment right to attend his own trial was so “absolute” that regardless of how unruly his conduct, he could never be held to have waived his right as long as he insisted upon it. (United States ex rel. Allen v. State of Illinois (7th Cir. 1969), 413 F.2d 232.) The United States Supreme Court granted certiorari and reversed, holding that a defendant may lose his sixth-amendment right to be present at trial, if after being warned of the consequences of continued disruption, he still insists on conducting himself in so unruly a manner that his trial cannot be conducted.

We agree with defendant that his conduct in the present case would not justify his exclusion from the trial under the Allen principle. Defendant’s sole disruptive action was his noncompliance with the court’s direction to be seated. Indeed, the trial court characterized defendant’s demeanor to have been courteous at all times. In our judgment, however, the error in excluding defendant was cured by the trial judge prior to the commencement of trial. We believe that the proper rule should be that, where a defendant voluntarily absents himself from the courtroom after trial has begun, his voluntary absence constitutes a waiver of the right to be present, and the trial court may proceed with the trial as if defendant were present. (See People v. Davis (1968), 39 Ill.2d 325, 235 N.E.2d 634.) It is true that the trial court prior to the commencement of trial ordered the defendant removed from the courtroom. However, before trial began, the trial court reconsidered and attempted to have defendant return to the courtroom. Defendant refused. The record demonstrates most vividly that, despite being afforded repeated opportunities, defendant continually refused to return and elected to absent himself from the proceedings. He insisted that he would return only if he were furnished other counsel. Defendant’s suggestion, offered without citation of authority, that his erroneous removal from the courtroom could not be cured by subsequent opportunities to return before trial began is untenable.

The fact that defendant at one point dinring the trial entered the courtroom, but refused to remain, further illustrates that he deliberately and voluntarily absented himself from the proceedings. Nor do we believe that the trial court had a duty by use of physical force to compel defendant’s attendance. Although defendant was in custody and not free on bond, his absence, under these circumstances, was voluntary. Since defendant voluntarily absented himself from trial, he cannot now complain that he was deprived of his constitutional right to be present.

Defendant next contends that the trial court erred in denying his motion for a substitution of counsel. On the day prior to trial, after the court had denied defendant’s motion to quash the arrest and during a hearing on his motion to suppress certain statements, defendant requested a continuance to have a bar association attorney prepare his case. Defendant’s sole complaint against the assistant public defender was that the latter had obtained a severance of defendant’s case from that of Douglas. The trial court pointed out that Douglas had a right to a severance and denied the request for a substitution of counsel. On the following day, defendant filed a pro se written petition for an “interlocutory injunction” requesting time to obtain other counsel. When the court denied that motion, defendant filed a petition for counsel other than the public defender. The petition was conclusionary in nature, setting forth, among other things, that the assistant public defender was assigned to that courtroom, that he was overworked, and that the public defender, as an employee of the county, was supported by the taxpayers and thus could not fulfill his obligations to defendant. The court denied the petition, and ordered the trial to begin.

An indigent defendant is entitled to counsel other than the public defender only upon a showing of good cause. (Ill. Rev. Stat. 1971, ch. 38, par. 113 — 3(b); Ill. Rev. Stat. 1971, ch. 34, par. 5604; People v. Branscomb (1969), 116 Ill.App.2d 385, 254 N.E.2d 126.) In the absence of a showing of good cause, the trial court is within its discretion in denying a request for an attorney other than the public defender. (People v. DeMary (1967), 37 Ill.2d 364, 227 N.E.2d 361.) In the present case, defendant never demonstrated good cause for counsel other than the assistant public defender. Counsel had represented defendant since arraignment, and had vigorously engaged in various pretrial motions and appearances. No suggestion of incompetency on his part has ever been made. The trial court did not abuse its discretion in rejecting defendant’s motion for substitution of counsel.

In our judgment, the trial court also properly denied the assistant public defender’s motion to withdraw from the case. After the court had denied defendant’s motion for a substitution of counsel, the assistant public defender made a motion to withdraw as counsel on the ground that defendant did not wish to be represented by him. The motion by an attorney for leave to withdraw for any reason is addressed to the sound discretion of the court. The burden, therefore, rests with the moving party to prove to the court’s satisfaction the legitimacy of the request, and when the petitioner either fails or refuses to do so, the court may properly deny the motion. (People v. Wolff (1960), 19 Ill.2d 318, 167 N.E.2d 197, cert. denied (1960), 364 U.S. 874.) If defendant’s desire that the public defender not represent him is sufficient to justify a withdrawal by counsel, it would render meaningless the above-cited requirement that a defendant must demonstrate good cause to obtain counsel other than the public defender. Under the facts and circumstances of this case, the court did not abuse its discretion in denying the assistant public defender’s motion to withdraw as counsel.

Defendant’s next contention is that the trial court erred in denying his motion for a change of venue.

Illinois statute provides that a defendant may move at any time for substitution of judge for cause, supported by affidavit. (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 5(c).) In the present case, defendant presented an oral motion on trial date, unsupported by affidavit. Moreover, a petition for substitution of judge delayed until after the trial judge has by his rulings passed upon substantive issues, and indicated his views on the merits nf the cause, comes too late. (People v. McDonald (1962), 26 Ill.2d 325, 186 N.E.2d 303.) The instant oral petition was not filed until after the court had denied defendant’s motion to quash the arrest. The court correctly denied defendant’s untimely motion for a substitution of judge.

Defendant’s claim that the trial court erred in proceeding to trial without ruling on a motion to suppress an oral confession is without merit. When the defense counsel objected to the trial court’s reserving a ruling on the motion, the trial judge started to explain his reasons. At that point, the prosecutor interjected that the State would not introduce into evidence any statement made by defendant. The court thereupon overruled defendant’s objection. At trial the prosecution made no effort to introduce the confession, and the court’s reservation of ruling on the motion could not have been prejudicial to the defendant.

Defendant next urges that the trial court committed reversible error in permitting Mrs. Flanagan, defendant’s aunt, to testify, over objection, as to a certain statement made by Douglas to defendant during the robbery: “Get everything together here, take care of the business, I’m going to get a car.”

It is not necessary to consider whether the remark was properly admissible, as the State contends, as a statement made between co-conspirators during the commission of a crime. Mrs. Flanagan positively identified defendant, her nephew, as the person who forced her at knife-point upstairs into her bedroom and compelled her to gather various personal property and money. Defendant obviously has not challenged that identification. Any error in the admissibility of the statement of Douglas was harmless.

Defendant’s contention that it was error to permit Miss Biddle to give secondary evidence regarding her identification of defendant is also without merit. The reason that Miss Riddle was unable to make an in-court identification of defendant was because defendant voluntarily absented himself from the courtroom. The trial judge was reluctant to compel defendant’s attendance because of the possibility of injuries arising out of the compulsion. Under such circumstances, the State was forced to use a secondary means of identification. (See People v. Falconer (1969), 116 Ill.App.2d 56, 253 N.E.2d 484.) The identification was properly admitted into evidence.

Defendant further maintains that Miss Riddle’s identification was insufficient to prove him guilty of that count of armed robbery.

Positive identification by one witness who has ample opportunity for observation may be sufficient to support a conviction. (People v. Lamphear (1955), 6 Ill.2d 346, 128 N.E.2d 892.) The adequacy of the identification raises a question of the credibility of the witnesses, which is a matter for the determination of the tiler of fact in light of its superior opportunity not only to hear the testimony of the witnesses but also to observe their demeanor while on the witness stand. People v. Jackson (1963), 28 Ill.2d 566, 192 N.E.2d 873.

In the present case, the testimony of Miss Riddle, who had ample opportunity to observe her assailant, was clear and positive. Her opportunity to observe was excellent. She sat in a vehicle next to defendant during daylight for about 5 minutes. She gave the police a reasonably detailed description of her robber, and 3 weeks later identified defendant from one of several photographs shown to her by the police. The only conflict in her testimony, pointed to by defendant, is that at an earlier hearing Miss Riddle stated that she did not see the knife at first, while at trial she testified that she saw the knife immediately. A reviewing court will set aside a conviction only when the testimony is so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. (People v. Williams (1972), 52 Ill.2d 455, 288 N.E.2d 406.) In the present case, Miss Riddle’s testimony was sufficient to prove defendant guilty of one count of armed robbery. As we have noted, he has not challenged the sufficiency of proof as to the other count.

Under the heading that he was not proved guilty beyond a reasonable doubt, defendant argues that Miss Riddle’s identification testimony should have been stricken because the police used “impermissibly suggestive” photographic pretrial procedures.

After defendant was in custody, police went to Miss Riddle’s home with seven photographs of seven black men. She was not at home, and the police left a message requesting that she come to the police station to identify photographs. At the station, she selected defendant’s picture from the seven photos. No lineup was held. Nothing in the record indicates that the police made any suggestion to Miss Riddle concerning the photographs, or that they informed her that defendant was in custody. We do not view the photographic procedures to have been “impermissibly suggestive.” (See Simmons v. United States (1968), 390 U.S. 377.) The testimony concerning her photographic identification was properly admitted at trial.

Defendant’s final contention is that his warrantless arrest, made about 3 weeks after the crime, was illegal. Section 107 — 2 of the Code of Criminal Procedures (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2) provides in part as follows:

“A peace officer may arrest a person when:
(a) He has a warrant commanding that such person be arrested; or
# # #
(c) He has reasonable grounds to believe that the person is committing or has committed an offense.”

Defendant argues that since subsection (c) as well as subsection (a) may be applicable to an offense which has been committed, that section (a) controls and requires the police officer to obtain a warrant prior to arresting the accused.

Our Illinois Supreme Court has rejected the contention that a warrant-less arrest is permissible only in hot pursuit or during an emergency. (People v. Johnson (1970), 45 Ill.2d 283, 259 N.E.2d 57, cert. denied (1972), 407 U.S. 914.) In that case, the court held that while it may be desirable to base an arrest on a warrant, an arrest is nevertheless lawful when based upon probable cause. In the present case, the police, at the time they arrested defendant, had probable cause to arrest him.

For the reasons stated, the judgments of the circuit court of Cook County are affirmed.

Judgments affirmed.

McGLOON and MEJDA, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Andre Nunez, Defendant-Appellant.
    (No. 59657;
    First District (3rd Division)
    November 7, 1974.

      Paul Bradley and Allen L. Wiederer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Andre Nunez, was indicted for the offense of unlawful use of weapons (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a)(7)) in that he knowingly possessed a shotgun with a barrel less than 18 inches in length, commonly known as a sawed-off shotgun. After a trial in the circuit court of Cook County, the jury found him guilty as charged. He was sentenced to a term of 2 to 5 years in the penitentiary and he appeals from the conviction.

We vacate and remand with directions.

Defendant, through his appointed counsel, presents four issues for review. He contends that (1) his motion to suppress evidence was erroneously denied, (2) he was not proved guilty beyond a reasonable doubt, (3) he was denied due process of law by the State’s suppression of evidence favorable to the defense, and (4) his sentence was excessive. The State opposes the first three of these contentions but concedes that his sentence must be modified in order that it conform to the provisions of the Unified Code of Corrections, now applicable.

On March 1, 1971, at 5:30 A.M., three Chicago police officers went to the apartment of defendant’s mother, Ana Nunez. They had an arrest warrant for her son; however, the record does not show what offense was alleged in the warrant. Officer Oréen testified that defendant was sleeping in a single bed in a small bedroom of the apartment when they entered. Officer Green leaned on the bed with his hand and told defendant to get up and that he was under arrest. Green felt a hard object under his hand at this time. When defendant had gotten out of bed and while he was standing next to it, Officer Green recovered a sawed-off shotgun from between the box spring and mattress. The weapon was found in approximately the place where defendant’s legs would have been if he had been lying in the bed. Examination revealed a five shell in it. The shotgun and shell were admitted in evidence at trial during the prosecution’s case-in-chief. Defendant’s mother, Ana Nunez, let the police into the apartment and was present in the bedroom during defendant’s arrest.

Defendant’s mother testified for the defense that on February 25, 1971, she found the weapon abandoned on the stairs leading to her apartment. She testified that she saw two street gangs having a fight in front of her apartment building that afternoon. She further testified that she took the weapon into her apartment and placed it where it was later found by the police. She maintained that she caUed the police to report the weapon but no one from the police came in response. She claimed that she never told defendant about the gun.

Defendant’s sister, Saida Gonzales, also lived in the apartment. She testified that there was a gang fight. She further testified that her mother never told her about the weapon and that she never heard her tell her brother about it. The first time she learned of the weapon was when her brother was arrested.

Defendant testified on his own behalf. He denied knowing that the shotgun was beneath the mattress. He denied feeling anything lumpy in the bed on the night of the arrest or on the previous night. He claimed that his mother had not told him that she put the shotgun there.

Defendant’s first contention is that the court committed reversible error in denying his motion to suppress evidence. He contends that the evidence obtained, namely the shotgun and shell, must be suppressed because they were seized as a result of an unlawful search.

Defendant concedes the validity of the arrest warrant. His argument is that because the record does not disclose the offense for which the warrant was issued, the search under the mattress cannot be justified. Counsel hypothesizes a situation in which an arrest warrant was issued because defendant failed to respond to citations issued for traffic violations. Absent other circumstances, defense counsel argues that the arresting officers would not have been justified in searching defendant’s bed.

However, the testimony of Officer Green, adduced at the hearing on the motion to suppress, shows that as he was leaning on the bed to arouse the defendant he felt a hard object under his hand. He testified that in his opinion, the object felt like the stock of a rifle or a shotgun.

We think that it makes no difference for what offense defendant was arrested. Under the circumstances the search of the mattress was justified. The proper scope of a search incident to a valid arrest is determined by what was reasonable. (People v. Wright, 42 Ill.2d 457, 248 N.E.2d 78.) When Officer Green felt what he thought was a dangerous weapon underneath the mattress, it was reasonable that he conduct a search of the area in order to protect himself or prevent escape. (People v. Brown, 38 Ill.2d 353, 231 N.E.2d 577; People v. Barksdale, 14 Ill.App. 3d 415, 302 N.E.2d 718.) That the weapon recovered also turned out to be contraband does not make the search any the less reasonable. People v. Pruitt, 79 Ill.App.2d 209, 223 N.E.2d 537.

Defendant’s second contention is that he was not proved guilty beyond a reasonable doubt of the offense charged. A person commits unlawful use of weapons when he “knowingly * * * possesses * * * any shotgun with a barrel less than 18 inches in length.” (Ill. Rev. Stat. 1971, eh. 38, par. 24 — 1(a)(7).) Defendant does not dispute that the weapon seized was the kind which the statute defines as contraband. He maintains that the prosecution failed to prove that he knowingly possessed the weapon within the meaning of the statute.

Criminal possession can be either actual or constructive. (People v. Mack, 12 Ill.2d 151, 145 N.E.2d 609.) Because defendant did not have actual possession of the weapon, the prosecution’s case was aimed at showing that he had constructive possession of it. A person is in constructive possession of contraband when it is in a place under his immediate and exclusive control. (People v. Cogwell, 8 Ill.App.3d 15, 288 N.E.2d 729.) Defendant presented evidence to show that the weapon was not under his immediate and exclusive control. Defendant, his sister, and his mother all testified that defendant was not the only person who used the bedroom. There was testimony that defendant’s brothers used the room and that his mother and sister kept clothes there. However, just before his arrest, defendant was the only person in the small bedroom and the only person sleeping on tire bed. We find that the prosecution has sufficiently proved that the defendant had constructive possession of the weapon.

Defendant also denied knowing that the shotgun was under his mattress. Knowledge of the presence of the weapon is an essential element of the offense of unlawful use of weapons. (People v. McKnight, 39 Ill.2d 577, 237 N.E.2d 488, cert. denied, 394 U.S. 993.) As was done in this case, knowledge may be proved by circumstantial evidence. People v. Zazzetti, 6 Ill.App.3d 858, 286 N.E.2d 745.

The prosecution presented evidence from which the jury could reasonably infer that defendant knew that the weapon was. hidden under his mattress. Defendant denied knowing of the weapon’s presence and presented a different account of how and why the weapon was concealed there. Resolution of the issue turned on the credibility of the witnesses and the weight given to their testimony, both of which are matters for the jury. The jury’s finding will not be disturbed unless the evidence is so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt. People v. Galloway, 28 Ill.2d 355, 192 N.E.2d 370, cert. denied, 376 U.S. 910.

The jury could have inferred that defendant knew the weapon was beneath the mattress from his testimony that he had slept on the bed for at least two nights when the weapon was there, and from the testimony that, although other members of the family used the bedroom, it was his. This inference was strengthened by the testimony of arresting officer Green that he could feel the weapon when, while unaware of its presence,, he leaned on the bed. There was also the testimony of Officer Erickson that as he and his two partners were escorting defendant out of his mother’s apartment, she said “What are you doing with that? Where did you get that?”, and defendant made no response. However, this testimony was weakened by the fact that Officer Erickson did not include these statements in his report.

On the other hand, from the time of his arrest defendant consistently denied that the weapon was his or that he knew of its presence. However, without corroboration, his mother’s account of how she found the gun and her subsequent actions with regard to it was difficult to believe. Both she and her daughter claimed there had been a gang fight in front of the apartment building. This would show that someone had the opportunity to have a weapon near the scene. Mrs. Nunez put the weapon under the mattress in her son’s bedroom because she thought it was the safest place for it. She claimed that she called the police twice within the span of 15 minutes on the afternoon of February 25, 1971. Both times she maintained that she told the police that she had found a weapon and that they told her that someone would come to pick it up.

However, it was brought out that during the 10 or 15 minute period that the police officers were at the apartment, Mrs. Nunez did not tell them that she had previously called the police to report the weapon. She claimed that she did not have an opportunity to tell them. The police officers maintained that they were talking in conversational tones, over which Mrs. Nunez could have easily spoken. Faced with this evidence the jury could have thought that the mother was fabricating a story in order to protect her son. We find that there was sufficient evidence in the record to prove that defendant knew of the weapon’s presence.

Defendant’s third contention is that he was denied due process of law by the State’s suppression of evidence favorable to him. Before trial defense counsel caused the clerk of the court to issue a subpoena duces tecum directing the keeper of the records of the Chicago Police Department to produce any and all information, including the daily police call log, relating to complaints made by Ana Nunez. The Police Department failed to respond to the subpoena. Instead, it was learned that the police had turned over the logs to the State’s Attorney. Defense counsel then filed a motion to produce any information given to the police by Ana Nunez, including the daily police logs for the period of February 24, 1971 to February 28, 1971. At the hearing on the motion the assistant State’s Attorney admitted that he had possession of the requested information, but refused to allow defense counsel to inspect it. He claimed the information was irrelevant and immaterial. Defense counsel explained that the logs might corroborate Mrs. Nunez’ story and without them defendant would be hampered in preparing his defense. The trial court denied the motion and stated “That is a matter for the trial.”

Defendant relies on the language in Brady v. Maryland, 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, that “the suppression by the prosecution of evidence favorable to an accused upon request violates dues process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” (373 U.S. at 87.) Defendant argues that the police logs were material to the issue of defendant’s knowledge of the contraband. Defendant relies also on Giglio v. United States, 405 U.S. 150, 31 L.Ed.2d 104, 92 S.Ct. 763, for the proposition that when the reliability of a given witness may be determinative of guilt or innocence nondisclosure of evidence affecting credibility falls within the Brady holding. Defendant claims that the police logs could have affected the jury’s appraisal of Mrs. Nunez’ credibility if they corroborated her testimony.

Initially, the State contends that this issue is not properly before the court because it was not raised in defendant’s motion for a new trial. We agree that the issue was not raised in the motion for a new trial. Defendant’s motion alleged 14 grounds. The only grounds even closely related to the error now alleged are number 11, “that the defendant was denied due process,” and number 12, “that the defendant was denied a fair trial.” These allegations are too general in and of themselves to have alerted the trial court to the alleged error. They stand in sharp contrast to the particularized nature of defendant’s objection in his motion for production.

In general, failure to raise an issue in a written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review. (People v. Pickett, 54 Ill.2d 280, 296 N.E.2d 856.) The reasoning for this rule is that the expense and delay of appeal may be avoided if the motion is meritorious and the reviewing court may be aided by the findings and observations of the trial court with respect to its ruling on the motion. (People v. Irwin, 32 Ill.2d 441, 207 N.E.2d 76.) The reasons for the rule might have been particularly well served in the instant case. After hearing the trial testimony, the court may have been disposed to grant a new trial on the ground that defendant had indeed been hampered in preparing his defense.

In the instant case we believe the waiver rule should be relaxed. The disclosure issue was squarely presented to the trial court on the motion for production. We have the benefit of counsel’s arguments and the court’s ruling in that instance. Because we think that defendant may have been prejudiced if his claim is well founded we will consider the issue. (People v. Norris, 8 Ill.App.3d 931, 291 N.E.2d 184.) Cases, cited by the State, where waiver was found, are inapposite in that defendants in those cases never presented the issues sought to be reviewed to the trial court.

Section 114 — 13 of our Code of Criminal Procedure (Ill. Rev. Stat. I 1971, ch. 38, par. 114 — 13) provides that discovery procedures in criminal cases shall be in accordance with Supreme Court Rules. The supreme court adopted revised rules for discovery in criminal cases, effective October 1, 1971 (Ill. Rev. Stat. 1971, ch. 110A, pars. 411 — 415.) Rule 411 provides that the rules shall be applied in all criminal cases wherein the accused is charged with an offense punishable by imprisonment in the penitentiary, as was done in the instant case. Rule 412 deals with disclosures to the accused. Section (c) of that rule provides “except as is otherwise provided in these rules as to protective orders, the State shall disclose to defense counsel any material or information within its possession or control which tends to negate the guilt of the accused as to the offense charged or would tend to reduce his punishment therefor.” The Committee Comments state that paragraph (c) requires the pretrial disclosure of material favorable to the accused under the holding of Brady v. Maryland. Section (h) of Rule 412 deals with “discretionary disclosures.” It provides that “upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by this rule.”

Although defendant has not relied on these discovery rules in his brief, we think they are applicable to the suppression issue. The subpoena duces tecum was issued and the motion to produce was filed, argued, and ruled upon after October 1, 1971, the effective date of the rules. Therefore, our review of the trial court’s denial of the motion to produce shall be in accordance with the substance and spirit of the new discovery rules. See People v. Newbury, 53 Ill.2d 228, 290 N.E.2d 592.

In our view defendant should have been allowed a judicial determination of whether the police logs contained the pertinent information. If they did contain such information defendant was entitled to have discovery of it. The State’s entire argument on this issue is that defendant acquiesced in the prosecutions determination that the police records were immaterial. We do not find this to be a correct view of the proceedings. Specifically the prosecution argues that because the trial court deferred ruling on the motion to produce it was incumbent on the defense to renew the motion at trial. The record shows that the trial court may have denied the motion because he thought it was premature. If this was his finding, it was incorrect. Defendant was entitled to a prompt determination of his motion on the merits so that he could prepare his defense accordingly. No showing of cause was made, consistent with Rule 415(d) (Ill. Rev. Stat. 1971, ch. 110A, par. 415(d)), which would have permitted the court to defer the disclosure. See S.H.A., ch. 110A, par. 415, Committee Comments (1968).

The State complains that it would be an improper expansion of the Brady holding to find that the trial court committed reversible error in denying defendant’s motion when the only thing in the record to show that favorable evidence may have existed was defense counsel’s assertion that it did, and his explanation of how it would be favorable. Defendant argues that the position urged by the State would allow the prosecution to suppress evidence and deny the defendant the opportunity to contest such action. Although it is true that the trial court did not examine the police log before his ruling, we find that defense counsel did lay a sufficient foundation to allow the trial court to examine the records as against the prosecution’s claim of immateriality.

We are not suggesting that the prosecution acted in bad faith. However, we cannot determine whether his claim of immateriality was an informed one. The record of the hearing shows that the prosecutions objection preceded defense counsel’s explanation for his request and the prosecution may have been unaware at that time of why defendant wanted the police records. The trial court denied the motion without giving the prosecution an opportunity to respond to defense counsel’s argument.

We agree that we cannot determine the contents of the requested police logs from the instant record. However, we do think that if the police logs contained evidence that Mrs. Nunez did call the police to report the weapon, defendant is entitled to a new trial. (People v. Baltimore, 7 Ill.App.3d 633, 288 N.E.2d 659.) Outright reversal and remandment for a new trial is not warranted by the facts and circumstances of the instant case. (See People v. Wisniewski, 8 Ill.App.3d 768, 290 N.E. 2d 414.) However, if the records do, in fact, reflect that Mrs. Nunez called the police, their suppression could not be held to be harmless error. A large portion of the prosecution’s case was aimed at discrediting Mrs. Nunez’ story. In addition, during closing argument, the prosecution argued emphatically that her story was unbelievable.

We believe that the proper disposition in this case is to remand the cause to the trial court in order that it conduct an examination of the police logs originally designated in the motion for production. If such examination reveals that a call for assistance was made the trial court shall order a new trial and defendant may have discovery of such information. If no such information is found the court shall enter a finding of fact to that effect and enter a new judgment of conviction. See People v. Wright, 30 Ill.2d 519, 532-33, 198 N.E.2d 316, 323.

If a new judgment is entered defendant’s sentence must be modified in accordance with the Unified Code of Corrections. (People v. Chupich, 53 Ill.2d 572, 295 N.E.2d 1.) Subsequent to defendant’s conviction the offense for which he was convicted was classified as a Class 4 felony. Conviction of a Class 4 felony is punishable by imprisonment for not less than 1 year, nor more than 3 years. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1.) Accordingly, if on remand a new final judgment is entered, the sentence imposed shall be a term of 1 to 3 years in the penitentiary.

Judgment vacated and cause remanded with directions.

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