author: Mr. JUSTICE DEMPSEY

text:
    Richard B. Kollath, Plaintiff-Appellant, v. Chicago Title and Trust Co., Trustee, et al., Defendants-Appellees.
    (No. 58796;
    First District (3rd Division)
    September 19, 1974.

      Rehearing denied December 24, 1974.

    Raymond I. Suekoff and Martin L. Silverman, both of Chicago, for appellant.
    Albert E. Amstein, of Chicago, for appellees.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

Richard Kollath, the plaintiff in an action to foreclose a mechanic’s hen for architectural services, appeals from a decree of the Circuit Court reinstating an order of October 4, 1971, which dismissed the cause for want of prosecution.

Kollath brought this action in November 1968, but in August 1969, it was dismissed for want of prosecution. An order vacating the dismissal was entered the following September and the cause was reinstated on the trial call.

The next time the case was called was on October 4, 1971. Kollath failed to appear and the case was again dismissed for want of prosecution. On November 3, 1971, exactly 30 days after the entry of the order of dismissal, Kollath’s attorney, Spencer W. Schwartz, filed a notice of motion with the clerk of the court, which recited that on the following day he would move to vacate the dismissal and have the cause reset for trial. No written motion or petition was filed with the notice. A $10 filing fee was tendered with the notice, which certified on its face that a copy had been served on the defendants’ counsel, Albert Arnstein, by a November 2 mailing addressed to 111 W. Washington St., Chicago.

On November 4, Schwartz appeared in court and made an oral motion for reinstatement; the court granted the motion and vacated the order of dismissal which had been entered 31 days previously.

In August 1972, Arnstein received notice that the plaintiff would move for a substitution of attorneys. The defendants entered a special appearance and petitioned the court to set aside the order of November 4, 1971, and to hold all proceedings incident to that order null and void. In support of the petition Arnstein filed an affidavit attesting that he had not received notice of the plaintiff’s motion of November 4, 1971, nor of the order to reinstate which was entered on that date. He stated that he first learned of the order when he received notice of the motion to substitute attorneys. The new attorneys for the plaintiff filed an answer supported by the counter-affidavit of his former counsel which admitted that the notice purportedly served on the defendant’s attorney had been incorrectly addressed. Arnstein’s office was located at 77 W. Washington Street, not 111.

In December 1972 an order was entered denying the defendants’ petition. However, on January 5, 1973, the court vacated its December order and also the order of November 4, 1971, finding the latter to be null and void. It was further decreed that the order of October 4, 1971, dismissing the cause for want of prosecution, should stand in full force and effect. It is from the order of January 5, 1973, that Kollath’s appeal is taken.

Both parties agree that the sole issue for review is whether the court had jurisdiction to enter the order of November 4, 1971, reinstating the cause of action. This poses a question which, the parties tell us, has not been definitely decided in Illinois. Section 50(5) of the Civil Practice Act provides:

“(5) The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.” Ill. Rev. Stat. 1971, ch. 110, par. 50(5).

Kollath argues that since his notice was filed within 30 days, the court had jurisdiction to vacate its prior order of dismissal; that for jurisdictional purposes the November 3, 1971, notice that a motion was to be made the next day was the equivalent of a motion; that it is not essential that a motion filed within the 30-day limitation be heard within that period, and that the 30-day period of jurisdiction to entertain post-judgment motions exists whether opposing parties are notified or not. The defendants respond by attacking two premises in the progression of the plaintiffs logic. They contend that filing a notice of motion is not the equivalent of placing a motion before the court and should not be treated as such, that the failure to notify defense counsel regarding the proceeding on November 4, 1971, rendered that proceeding a nullity.

It is clear that if a motion is timely filed it need not be heard within the 30-day limitation period. Supreme Court Rule 184 (Ill. Rev. Stat. 1971, ch. 110A, par. 184) states:

“No provision in these rules or in the Civil Practice Act prescribing a period for filing a motion requires that the motion be heard within that period. Either party may call up the motion for disposition before or after the expiration of the filing period.”

Supreme Corut Rule 184 only enters into effect if a motion is filed within the statutory time limit. Thus, Kollath’s major hurdle has been to establish that the notice of motion filed with the clerk on the 30th day following the dismissal of his case was sufficiently equivalent to a motion to comply with the time limit set by section 50(5), so that the court retained jurisdiction over its previous order until its disposition of the motion on the 31st day.

To sustain their position that a notice of motion is not to be construed as synonymous with the filing of a motion, the defendants rely on the California case of Herrlich v. McDonald (1889), 80 Cal. 472, 22 P. 299, and the Illinois case of Mehr v. Dunbar Builders Corp. (1972), 7 Ill.App.3d 881, 289 N.E.2d 25. In Herrlich the court stated that notice of motion is not a motion, and should not be so treated. But Herrlich was concerned only with the necessity of preserving some written record of a motion for purposes of appeal. (See Watson v. Collins (1962), 204 Cal.App.2d 27, 21 Cal.Rptr. 832.) In Mehr the plaintiff’s action was also dismissed for want of prosecution. On the 29th day after dismissal, the plaintiffs attorney served notice on defense counsel that a motion to reinstate would be made in 4 days. On the appointed day, 33 days after the decree of dismissal, the court denied the motion, which was made without petition, affidavit or other supporting document. This court held that the motion would have to be construed as an attempt to use section 72 of the Civil Practice Act, because it was not presented until 3 days after expiration of the 30-day period which commenced on the date of dismissal. The difficulty with Mehr, as we seek to apply it to the facts of the instant case, is that it makes no mention whatever of a notice of motion being filed with the clerk of the court within the 30-day limit; therefore, Mehr can offer no guidance on the question before us. Its authority only reached as far as its facts, and they disclose only the bare presentation of an oral motion 33 days after judgment.

What the defendants really seek from this court is an unequivocal ruling that under no circumstances may an oral motion to vacate a final order be considered or passed upon by a court more than 30 days after its issuance. But the rules of practice themselves contemplate a less rigorous requirement, namely that a post-judgment motion need only be brought to the attention of the court in a reasonable manner before the 30-day limit has run. In the case of written motions, this requires submission of a copy of the motion to the court. But provision also exists for oral motions. Cook County Circuit Court Rule 2.1 provides, in part:

“The notice of hearing shall show the title and number of the action, the name of the judge before whom and the date when the motion will be presented. If the motion is made orally, the notice shall state the nature of the motion. If the motion is presented in writing, a copy of the motion or a statement that it previously has been served shall be served with the notice.”

Of significance is the statement in the rule that if a motion is made orally, the notice shall state the nature of the motion. Kollath’s notice did state the nature of his motion in compliance with the. rule; thus, the court was apprised that a motion to reinstate a dismissed case would be argued on a future date. For the purposes of compliance with section 50(5), the motion was before the court on the 30th day after dismissal.

While Mehr v. Dunbar Builders does not conclude the issue, it is equally true that the plaintiff’s principal case is not squarely on point. The plaintiff argues that it is the substance and effect of a motion, rather. than its form, which determines its character, and cites Schmind v. Forester (1937), 289 Ill.App. 172, 6 N.E.2d 898. In that case, the court declared a motion which was termed a motion for new trial to be, in fact, a motion to set aside the decree and award a new hearing in the cause. There was no question, as here, whether a motion had been timely filed. Rather, the reviewing court was presented with a situation where the label applied to a motion determined the kind of decree that followed from its denial, and hence fixed the time when the limitations period for post-judgment motions began to ran. In order to do substantial justice, the appellate court avoided a rigorous application of labels and instead determined the motion’s nature by looking to the relief requested. Notwithstanding the different issues posed, the principle governing Sckwind — an emphasis in matters of procedure on substance rather than form — influences, if not controls, the result in this appeal. In so deciding, we carry out the dictates of the Civil Practice Act itself, which according to section 4,

* # shall be liberally construed, to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.” Ill. Rev. Stat. 1971, ch. 110, par. 4.

The admonition of section 4 is especially apt in this case, where the substantive rights involved have never been adjudicated. A reversal means only that the plaintiff will have his day in court. The defendants lose only a technical dismissal, but are not prejudiced in their defense on the merits, While they allege detrimental reliance on the dismissal, in that they subsequently sold the property which was the subject of this action, the extent of the prejudice resulting from that sale would only be a factor to be considered on remand; it does not relate to the attack on the court’s power with which we are here concerned. We hold that the notice of motion filed with the clerk of the court on the 30th day following the entry of the order of dismissal, was a sufficient filing under section 50(5) of the Civil Practice Act, to give the court jurisdiction of the motion, and that the court retained jurisdiction to act on the motion the following day.

We also reject the defendants’ second contention that the reinstatement order of November 4 was void because of the failure to provide notice to their counsel that a motion to vacate the dismissal would be presented that day. Reliance is placed solely on the provisions of Circuit Corut Rule 2.1 and Supreme Court Rule 104(b) (Ill. Rev. Stat. 1971, ch. 110A, par. 104(b)), both requiring notice of motion to parties previously not found to be in default. Reviewing courts have consistently held, however, that Rule 104(d) renders a failure to comply with Rule 104(b) or tike rules in the circuit courts non-jurisdictional. City of Chicago v. Exchange National Bank (1971), 133 Ill.App.2d 370, 273 N.E. 2d 484; Trojan v. Marquette National Bank (1967), 88 Ill.App.2d 428, 232 N.E.2d 160. Supreme Court Rule 104(d) (Ill. Rev. Stat. 1971, ch. 110A, par. 104(d)) provides in part:

“Failure to deliver or serve copies as required by this rule does not in any way impair the jurisdiction of the court over the person of any party, * *

The only cases decided since enactment of rule 104(d) which reached a contrary result, Wilson v. Moore (1973), 13 Ill.App.3d 632, 301 N.E. 2d 39; Vlahakis v. Parker (1971), 3 Ill.App.3d 126, 278 N.E.2d 523, did not consider that provision at aE.

The decree of January 5, 1973, is reversed, insofar as it voided the order of November 4, 1971, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


source: Caselaw Access Project

author: Mr. JUSTICE McGLOON

license: Public Domain

text:
    Dr. William A. Jackson, Plaintiff-Appellant, v. Howard E. Hoover et al., Defendants-Appellees.
    (No. 59703;
    First District (3rd Division)
    November 7, 1974.

      Rehearing denied January 9,1975.

      Nicholas Liontakis, of Piacenti, Cifelli & Pigato, of Chicago Heights, for appellant.
    Elmer F. Slovacek, of Slovacek and Galliani, of Chicago, for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

This is an appeal from an order of the circuit court of Cook County dismissing all four counts of plaintiff’s complaint which arose out of an alleged rear- end collision that occurred on July 13, 1969. The complaint was filed on November 3, 1971, approximately 3% months after the 2-year statute of limitations had run. (Ill. Rev. Stat. 1973, ch. 83, par. 15.) Plaintiff alleged, inter alia, that the defendants were estopped to assert the statute of limitations as a defense and at a hearing in the trial court on defendant’s motion for a preliminary resolution of the issue of estoppel the trial court ruled that the defendants were not estopped to assert the statute of limitations as a defense and dismissed aU four counts of the complaint.

Order vacated and cause remanded with directions.

Plaintiff contends (1) that the trial court erred in dismissing Count I of the complaint because the issue of estoppel involved a question of fact which should have been decided by a trier of fact; (2) that the trial court compounded this error by assuming that since Count I had to be dismissed, the remaining Counts, II, III, and IV, had to be dismissed as well.

Defendants, on the other hand, contend (1) the trial court actually decided the factual questions relevant to the issue of estoppel and that since the plaintiff waived his right to a jury trial, the appropriate standard for review is whether or not the trial court’s finding was “plainly erroneous and contrary to the manifest weight of the evidence”; (2) even if the plaintiff had not waived his right to a jury trial, it would nonetheless be proper under the evidence to sustain the findings of the trial court; (3) the trial court’s dismissal of all counts of the plaintiff’s complaint was necessary and proper; and (4) the order of the trial court is consistent with and implements public policy and public interest.

The record reveals the following relevant facts: On July 13, 1969, defendant Hoover collided with the rear end of plaintiff s vehicle which was stopped at an intersection in the Village of South Chicago Heights, Cook County, Illinois. Plaintiff filed his complaint 3% months after the statute of limitations had run and did not file a jury demand. Defendant then filed an appearance and jury demand. Subsequently, after plaintiffs complaint was twice dismissed with leave to file an amended complaint, plaintiff filed a second amended complaint of four counts alleging (1) negligence against the defendant driver, Hoover; (2) a contract implied in fact between Hoover’s insurer Aetna Life and Casualty Insurance Company (hereinafter referred to as Aetna); (3) fraudulent misrepresentation against Aetna’s agent, Friedman, that he had actual authority to waive the statute of limitations; (4) fraudulent misrepresentation against Aetna and that Aetna clothed Friedman with apparent authority to waive the statute of limitations. Defendants then answered the second amended complaint with a pleading captioned “Answer and Affirmative Defense to Count I of Second Amended Complaint; Motion for Preliminary Determination of Issue of Estoppel; and Motion to Strike and Dismiss Counts H, III and IV of Second Amended Complaint.” Subsequently, this matter came up on the regular summer pretrial call of Judge David Canel on July 25, 1973. On that date, plaintiff filed a petition for a change of venue which was orally denied and the matter was continued to August 2, 1973 for a pretrial conference. On August 2, 1973, it appears that Judge Canel granted the change of venue by transferring the file to Judge Elward instead of sending the file to the assignment judge for reassignment.

The change of venue having thus been granted, the parties appeared before Judge Elward and counsel for plaintiff confessed that he was confused as to what was about to happen at court that day, and that he did not know if the parties were at court for a settlement conference or for hearing evidence. Counsel for plaintiff informed the court that plaintiff was present, and defense counsel stated that a claims representative of the defendant insurance company was present; Defense counsel also emphasized that defendant had not waived their jury demand. The trial court then proceeded to define the issue before it as one of determining whether or not there were enough facts on the issue of estoppel to send the case to a jury. Clearly indicating the procedure to be followed, the trial court then stated that if it found enough facts on the issue of estoppel to send to a jury the case would proceed to a double-jury trial with one jury to decide the issue of estoppel and the other jury to decide the issues of damages and negligence. (See Kinsey v. Thompson (1963), 44 Ill.App.2d 304, 194 N.E.2d 565.) If, on the other hand, the trial court did not find enough facts to support the claim of estoppel, the entire case was to be dismissed. After thus clearly defining the issue to be decided and outlining the procedure to be followed, the trial court heard the plaintiffs testimony and that of the insurance agent Mr. Friedman and issued the following order:

“The Court having heard and considered all evidence adduced by plaintiff in support of his claim of estoppel, and the Court being advised by plaintiffs attorney that plaintiff had no other or further evidence to offer upon said issue; and the Court having heard and considered further arguments by counsel, and being fully advised in the premises;
This Court is of the opinion and FINDS, that plaintiff failed to adducé any evidence sufficient to justify" or support a finding that the conduct of any defendant herein constituted anything more than investigation of plaintiffs claim and negotiations for a settlement; and
This Court is further of the opinion, and FINDS, that plaintiff failed to adduce any evidence sufficient to justify or support a finding that the conduct of any defendant herein constituted a waiver of the statute of limitations, or a finding that the conduct of any defendant induced a reasonable belief on plaiiitiffs part that the statute of limitations would be waived; and, accordingly,
This Court FINDS that the defendants are not estopped from asserting the bar of the statute of limitations * *

The trial court then ordered all four counts of the plaintiffs complaint dismissed.

The plaintiff in his deposition and testimony at the hearing indicated that the accident was a rear-end collision in which the insurance company had never denied responsibility. Plaintiff further testified that the insurance company had paid for the damage to the car and that Aetna’s agent, Mr. Friedman, had agreed in essence to reach an agreement as to the damages for personal injuries. Plaintiff further testified that Mr. Friedman specifically told the plaintiff that he did not need an attorney and the plaintiff, in fact, did not retain an attorney until after the statute of limitations had run. Both plaintiff and defendants agreed that the last communication between plaintiff and the insurance agent took place approximately 3 months before the statute of limitations was to run. Plaintiff testified that at this last conversation plaintiff told Mr. Friedman that the 2-year limit was approaching and in response Mr. Friedman told the plaintiff that he need not worry about “deadlines or technicalities.” Plaintiff testified that he tried to call Mr. Friedman shortly before the statute was to run, but was informed that Mr. Friedman was on vacation.

In their answer to Count I of the complaint, defendants state that they undertook only to investigate and evaluate plaintiffs claim with a view toward possible negotiation and settlement and deny that any conversations of any kind concerning retention of counsel by plaintiff ever took place. Mr. Friedman, the insurance agent, further denied having ever told the plaintiff not to worry about the statute of limitations.

Although it is not exactly clear from the record whether the trial court judge was actually deciding the factual questions concerning the issue of estoppel or merely determining that there was no factual question on the issue of estoppel to send to a trier of fact, we feel that the import of the order issued by the trial comt judge is that he actually decided the factual questions relevant to the issue of estoppel. In so doing, the trial court committed reversible error. The defendants filed a jury demand and never waived this jury demand. Throughout the hearing, the trial court repeatedly defined the issue it was to decide as one of determining whether or not there were enough facts on the issue of estoppel to send the case to a jury. Due to the fact that defendants never waived their jury demand and the fact that the issue to be decided was clearly defined as determining whether or not there were enough facts to send the issue of estoppel to a jury, the trial court should not have actually decided the questions of fact presented by the issue of estoppel. As the trial court indicated in the early stages of the hearing, if the issue of estoppel presented a question of fact the case was to proceed to a jury. Such procedure should have been followed.

Furthermore, it is clear that on the basis of the pleadings, plaintiff’s deposition and testimony adduced at the hearing that there was a question of fact concerning the issue of estoppel. The rule concerning estoppel in situations similar to the case at bar is clearly stated in Flagler v. Wessman (1970), 130 Ill.App.2d 491, 494, 263 N.E.2d 630, 632:

“The fact that an insurer negotiates with a claimant is not conduct amounting to waiver by estoppel unless the negotiations contain statements or conduct which are calculated to lull the claimant into a reasonable belief that his claim will be settled without suit. If there is evidence of such conduct which exceeds mere investigation and negotiation, an issue is made for determination by the trier of the facts; if not, the defense may be disposed of by the court as a matter of law. Dickirson v. Pacific Mut. Life Ins. Co., 319 Ill. 311, 318, 150 N.E. 256 (1926); Suing v. Catton, supra, at page 473; Kinsey v. Thompson, supra, at page 307; Devlin v. Wantroba, 72 Ill.App.2d 383, 387, 218 N.E.2d 496 (1966).”

In the case at bar, plaintiff testified that the insurance company paid for the damages to his car and never denied liability; that the insurance agent told the plaintiff that he did not need an attorney and that plaintiff need not worry about deadlines or technicalities. Such testimony is evidence of conduct which exceeds mere investigation and negotiation and consequently an issue of fact was made for determination by a trier of fact.

The mere fact that the last communication between the plaintiff and the insurance agent was approximately 3 months before the statute of limitations was to run is not determinative as a matter of law on the issue of estoppel. It is true, as stated in Reat v. Illinois Central R.R. Co. (1964), 47 Ill.App.2d 267, 197 N.E.2d 860, 864, that

“[WJhere the inducement for the delay * * * has ceased to operate before the expiration of the limitation period, so as to afford the plaintiff ample time thereafter in which to institute bis action prior to the running of the statute of limitations, he cannot excuse his failure to do so on the ground of estoppel.” (47 Ill.App.2d 267, 273-4.)

However, in the case at bar, plaintiff has testified that in the last communication 3 months before the statute of limitations was to run the insurance agent told him not to worry about deadlines or technicalities. Thus, a question of fact existed concerning whether or not the inducement for the delay had ceased to operate before the expiration of the limitation period. This question should be decided by a trier of fact.

Along with his motion for a preliminary resolution of the issue of estoppel, defendants filed a motion to strike and dismiss Counts II, III and IV of the complaint for failure to state a cause of action. The trial court ordered Counts II, III and IV dismissed and plaintiff argues that such dismissal was in error. The trial court did not hear argument on Counts II, III and IV at the hearing and the order of the trial court dismissing these counts gives no reason for their dismissal. As indicated by the record, the trial court in the early stages of the hearing said that whichever party won on this issue of estoppel, was going to win on Counts II, III and IV as well. In line with this reasoning, the trial court, having decided the issue of estoppel in • defendants favor, dismissed Counts II, III and IV. Having ruled that the trial court erred in deciding the question of fact relevant to the issue of estoppel, we feel that Counts II, III and IV do state a cause of action and should also be remanded for consideration.

For the reasons stated above, the order of the trial court is vacated and the case remanded for a determination of the question of fact raised by the issue of estoppel and for a consideration of Counts' II, III and IV.

Order vacated and cause remanded with directions.

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


author: Mr. JUSTICE DRUCKER

text:
    George Varney, Jr., et al., Plaintiffs-Appellees, v. Catherine J. Yangas, Defendant-Appellant.
    (No. 59443;
    First District (5th Division)
    November 8, 1974.

      Rehearing denied December 31,1974.

      Gary E. Dienstag, of Chicago, for appellant.
    No appearance for appellees.
    Lewis W. Schlifkin and Edward A. Berman, both of Chicago, for third-party appellee.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Plaintiffs, owners collectively of a one-half undivided interest in the premises located at 153-59 West Chicago Avenue, Chicago, Illinois, brought an action for partition against defendant, owner of the remaining one-half undivided interest in said premises. This appeal is taken by defendant from the trial court’s order denying her petition for a change of venue, and from the orders of the court decreeing partition and sale of the premises, approving tire commissioner’s report, approving the sheriffs report of sale and denying defendant leave to file a claim for damages against plaintiffs prior to disbursement of the proceeds of the sheriffs sale.

On August 17, 1972, a complaint for partition of the premises was filed by plaintiffs George Varney, Jr., Nicoletta Varney, Thomas Brown and Penelope Brown against defendants Catherine Yangas, the Mercantile Laundry Co., Inc., an Illinois corporation, and James J. Flanagan, receiver. The latter two defendants were eventually dismissed when they vacated the premises. On October 30, 1972, defendant presented a petition for a change of venue from Judge Cohen. The petition recited in pertinent part:

“2. That the affiant has good reason to believe, and does believe, that she cannot have a fair and impartial trial of this action ^before the Honorable Nathan M. Cohen, Judge of the Circuit Court of Cook County, Illinois, Chancery Division, before whom the said action is pending for the reason that the Honorable Judge Cohen is prejudiced and biased against her, her cause of action, and the nature of her action. That she also verily believes that Judge Francis T. Delaney, Judge Donald J. O’Brien, Judge Samuel B. Epstein and Judge James J. Mejda are biased and prejudiced against her, her cause of action and the nature of her action.
3. That the affiant has been informed, and verily believes, that the said Judges have made statements and expressed opinions which lead the affiant to believe that she cannot have an impartial and fair trial before the said Judges.”

At the hearing held on October 30, 1972, defendant was represented by two attorneys, Mr. Feren and Mr. Page. It appears that Mr. Feren had prepared the petition for defendant, and that Mr. Page had been brought into the matter that morning as co-counsel. Mr. Page, however, stated that he was prepared to go ahead on the petition. Thereupon the trial court denied the petition finding it bad on its face. Following this ruling, Mr. Page stated:

“Well, your honor, may we withdraw the petition and consider the possibility of re-filing it?”

This request was also denied.

On January 11, 1973, after a denial of defendant’s motion to dismiss, defendant filed her answer and counter-complaint for real estate taxes and insurance premiums advanced in the amount of $4,314.26. Plaintiffs admitted that said sum was due and owing to defendant. On February 5,1973, the court granted plaintiffs’ motion for judgment on the pleadings but ordered that defendant be paid the sum of $4,314.26 with priority from the proceeds of sale of said premises. A decree for partition was then entered which appointed Terrence O’Brien as commissioner to make partition of the property, or if the premises could not be divided, to fairly and impartially appraise the value of each piece or parcel and to make a true report to the court.

On March 7, 1973, defendant moved to vacate the decree for partition. On March 20, 1973, the trial court denied defendant’s motion to vacate the decree of partition. On this date the commissioner’s report appraising the property at $175,000 was presented to the trial court. At the hearing the following colloquy took place:

“MR. KATZ [Plaintiffs’ attorney]: Now, my motion, Your Honor, is one for the filing of the Commissioner’s report. A report has been submitted, a copy has been furnished to the defendants, and I ask that the report stand as approved. In the near future, I will submit a decree of sale.
THE COURT: All right. Any other objections?
MR. LEVIN [Defendant’s attorney]: No, I have no objections to that.”

The trial court thereupon approved the report of the commissioner; Furthermore, the trial court modified the decree of partition so that, it would not affect the rights of the parties against the Mercantile Laundry Co., Inc., which had been the lessee of the said premises.

On April 6, 1973, with defendant’s counsel present, the trial court entered a decree of sale ordering that the property be sold at public auction by the sheriff of Cook County for an amount equal to at least two-thirds of the valuation placed on the property by Commissioner O’Brien. Within the decree of sale the trial court again approved and confirmed the commissioner’s report.

On May 7, 1973, defendant filed her motion to vacate (1) the decree of sale; (2) the decree of partition; (3) the order denying her petition for change of venue; and prayed for a trial on the issues. She alleged that the value of the real estate was $218,310 and attached to the motion as an exhibit a letter by S. E. Berkson to defendant appraising the real estate at $218,310. At the hearing held on May 10, 1973, defense counsel represented to the trial court that he would like to call Berkson as a witness but that Berkson was out of town and would not be available until May 28, 1973. After a lengthy hearing in which Berkson’s appraisal was fully discussed by attorneys for both parties and the coiirt, and after it was disclosed that the sale had been previously set for May 15, 1973, the trial court denied defendant’s motion and specifically found that the matters raised were untimely.

On May 15,1973, the property was sold by the sheriff at public auction to the only bidder, Edward Bottcher, for $116,666.67, exactly two-thirds of the appraisal of Commissioner O’Brien. Both defendant and her attorney were present at the auction, but neither bid nor raised any objections. On June 8, 1973, defendant filed verified objections to the sherifFs report of sale alleging, in substance, that the sale price was grossly below the value of the property. At a hearing held on June 13, 1973, defendant’s objections were denied, the sheriff’s sale was approved and the trial court approved delivery of the deed to Mr. Bottcher upon his payment of the balance of the purchase price.

On July 13, 1973, defendant filed a motion to extend time in which to file a motion to vacate the court’s order of June. 13, 1973, confirming the sheriff’s sale. This motion was entered and continued for hearing to July 19, 1973. On July 18, 1973, defendant presented a motion to vacate the orders denying the (1) petition for a change of venue; (2) decree of partition; (3) decree of sale; (4) order approving the report of the commissioner; and (5) the order confirming the sheriff’s report of sale. Furthermore, as an exhibit to this motion defendant attached an expanded appraisal report of Berkson, valuing the premises at $223,000. AdditionaHy, and for the first time in the course of the proceedings, defendant moved to file a claim for damages, alleging:

“Defendant’s property has been damaged during the pendency of this lawsuit by the plaintiffs and the lessee of the property, Mercantile Laundry Company, an IHinois Corporation now in receivership, and Defendant has been denied her right to damages for this loss to her real estate, and that it is the opinion of the Honorable Daniel A. CovelH, one of the Judges of the above-named court and Chancery Division * * * that this Defendant should be compensated for said damages to property, but that said De- • fendant hsas [sic] been erroneously barred from filing'a. claim for same in these premises.”

Attached to the motion was a transcript of proceeding in a different case where Judge CovelH, on June 12, 1973, in the case of Catherine Yangas v. Mercantile Laundry Co, No. 72 Ch. 3739 (a suit to enjoin defendants from committing waste) denied this same motion, intimated that his view was that the damage claim should be made in this partition suit but expressly stated that he couldn’t pass on the issue and the court in the partition proceeding would have to rule on it.

On July 19, 1973, after an extensive hearing, the trial court denied defendant leave to file her motion to vacate; The court noted that it had heard and denied these same arguments twice before; commented that there must be an end to this Htigation; specifically found improper notice; and further found:

“5. That the Commissioner’s Report was heretofore approved on March 20, 1973 pursuant to notice to defendant’s attorney and defendant’s presence in open Court; that at no time during that hearing did defendant or her attorney request the opportunity to examine the Commissioner or to furnish any evidence, or to offer any testimony or to cross-examine the Commissioner.
6. That the matter relating to valuations of the real estate were heard by this Court on the 10th day of May, 1973, and again on June 13, 1973 during the hearings on Objections to the Sheriff’s Report of Sale; and that defendant at this time is attempting to introduce valuation evidence based upon opinions contained in certain written correspondence dated June 22, 1973 to the defendant.
7. That the plaintiffs have not been in possession of the premises partitioned herein during any of the period covered by this lawsuit; that the defendant prior thereto was acting as agent for all owners in the collection of the rent payment, of taxes and insurance.”

On August 7, 1973, the trial court ordered distribution of the proceeds of the partition sale, and on August 17, 1973, defendant filed her notice of appeal.

Opinion

Before reaching the merits of this appeal it is necessary to dispose of a question raised as to this court’s jurisdiction. Appellee Bottcher has filed in this court a motion to dismiss this appeal as being untimely, which motion we took with the case. He argues that since notice of appeal was not filed until August 17,1973, within 30 days of the August 7,1973, order relating to disbursement of proceeds of the sale but not within 30 days of the orders of the trial court decreeing partition and sale, approving the commissioner’s report and approving the sheriff’s report of sale, the court has no jurisdiction to hear the appeal. We note that in none of the orders above mentioned did the trial court include the phrase “there is no just reason for delaying enforcement or appeal.” (Ill. Rev. Stat. 1971, ch. 110A, par. 304.) We have reviewed the cases referred us by the parties and find on the authority of Getzelman v. Koehler, 14 Ill.2d 396, 152 N.E.2d 833, and Coats v. Coats, 92 Ill.App.2d 75, 234 N.E.2d 86, that the orders of the trial court prior to the August 7 order were not appealable orders. Therefore, appellee’s motion is denied.

Defendant initially contends that the trial court erred in denying her petition for a change of venue and in denying her leave to withdraw the petition and file a new one. She argues, citing case authority, that the right to a change of venue on account of prejudice of the trial court is absolute, leaving no discretion if the requirements of the statutes are met, and that the venue provisions should be liberally construed in order to promote rather than defeat the right to a change of venue. Furthermore, she avers that the petition was timely and the trial court had not made any prior substantive rulings. Therefore, she concludes that since the trial court erred in this respect, all subsequent orders of the trial court are a nullity.

The trial court in making its ruling relied on City of Chicago v. Marquardt, 30 Ill.App.2d 108, 173 N.E.2d 825, and Rosewood Corp. v. Transamerica Insurance Co., 8 Ill.App.3d 592, 290 N.E.2d 656. In Marquardt a non-resident litigant moved for a change of venue from 26 of 36 judges of the Municipal Court of Chicago without specifying any reasons why they were personally prejudiced. The lower court denied the petition for change of venue. In affirming this denial the appellate court stated:

“We believe that a petition for a change of venue filed by a nonresident litigant, naming twenty-six out of thirty-six judges as being prejudiced against her, with no specifications of the grounds of prejudice, is an attempt to use the Act to avoid any trial of the cause or to avoid an expected adverse ruling. It is a patent abuse of the Act. In the absence of specifications of prejudice or a reasonable showing of good faith in seeking a change of venue from twenty-six judges, a trial court is justified in determining that the petition is not filed in good faith, is used to abuse the Venue Act, and should be denied. We come to this conclusion because we believe the pronouncements that a trial court has no discretion where a petition for a change of venue is made on account of prejudice of the trial judge do not apply, when used to sustain a misuse of a substantial right.” 30 Ill.App.2d 108, 111-12.

The Rosewood case was just recently affirmed by our Supreme Court at 57 Ill.2d 247, 311 N.E.2d 673. In that case the resident plaintiff filed a petition for change of venue from four of the seven judges of the chancery division of the circuit court generally alleging prejudice. The court held that:

“* » « the naming of four judges in the petition for a change of venue in this case, supported only by the general aUegation of prejudice, is a violation of the venue statute and warrants denial of the petition.” (57 Ill.2d 247, 253.)

The court went on to explain that:

“By this holding we do not intend that a party should be compelled to have his case heard by a judge who is in fact prejudiced against him. The petitioner has an absolute right to a change of venue from one judge based on a general allegation of prejudice. However, if the petition seeks a change of venue from additional judges it must contain specific allegations to support the charges of prejudice against the additional judges * * (Emphasis supplied.) 57 Ill.2d 247, 253-54.

In attempting to distinguish these two cases, defendant has asserted that she has made specific allegations in paragraph 3 of her petition to support her general charge of prejudice. It is the opinion of this court that this averment does not meet the specificity requirement referred to in Rosewood. It is nothing more than a conclusion of prejudice from alleged unknown and undivulged statements and opinions. Defendant further argues that even if the petition is faulty with regard to the other judges named, it was sufficient as against Judge Cohen, and that we should treat everything else as surplusage. This exact argument was presented and rejected by the appellate court in Rosewood, and we concur in that position. Here defendant moved for a change of venue from five of the eight judges then in the chancery division malting only a general allegation of prejudice. Clearly Rosewood is controlling.

Defendant further argues that Mr. Page had not drafted the petition because of his late appearance in the case and so should have been allowed to withdraw it and refile a new petition, also pointing out the absence of any possible prejudice. To support her position defendant has cited case authority where courts have allowed pleadings to be withdrawn and have granted continuances in order to allow pleadings to be prepared and filed. The major distinguishing fact, differing the instant case from the general principles urged by defendant, is the fact conceded in defendant’s reply brief that “the request to withdraw the petition was made after it was denied.” (Emphasis supplied.) Furthermore, Mr. Page had stated he was prepared to go ahead on the petition before the court’s ruling and at that time never even moved for a continuance. Finally Mr. Feren who had prepared the petition was in court and was still representing defendant. Mr. Page’s request came too late and was properly denied.

Defendant next contends that the trial court erred in refusing to allow defendant to produce in evidence Berksoris appraisal report and in refusing to allow her to cross-examine Commissioner O’Brien. She argues that due process requires that she be given the opportunity for a hearing on the issue of value and that by refusing to do so the court violated its duty to see that the sale was for an adequate price.

As was recited earlier, the court on February 5, 1973, appointed Terrence O’Brien as commissioner and ordered him to make his report. After notice was given to defendant, plaintiff on March 20, 1973, submitted the commissioner’s report to the trial court. At the hearing held on this date defendant’s counsel expressly stated that he had no objections to the report. He neither questioned the report nor sought to question Commissioner O’Brien. Nor did he even request a continuance. On April 6, 1973, the trial court entered a decree of sale and once more confirmed the commissioner’s report; there was no objection by defendant. It was not until the May 10, 1973, hearing on defendant’s motion to vacate that she alleged that the commissioner’s valuation was inadequate. It was at this time that she presented Berksoris appraisal letter to the trial court and requested that she be allowed to call Berkson as a witness but stated that he would not be available until May 28, 1973. This occurred just 5 days before the sale was to be held, and the trial court denied defendant’s motion specifically finding it was untimely. Finally it wasn’t until July 18, 1973, in another motion to vacate that defendant specifically averred she was denied the right to cross-examine Commissioner O’Brien. Attached to this motion was a more detailed appraisal report by Berkson. It should be noted that although the court would not allow a further hearing on the issue of value and incidentally would not allow Berkson’s report to be presented in evidence, the reports of proceedings demonstrate that the trial court had read the two appraisal reports of Berkson, and that these reports were made the subject of extensive debate by counsel.

The trial court in a partition proceeding has discretion in approving or disapproving the commissioner’s report and may appoint other commissioners to revalue the premises. (Ill. Rev. Stat. 1949, ch. 106, par. 60.) “The guaranty of due process of law requires that every man shall have the protection of his day in court 9 9 (City of Chicago v. Cohn, 326 Ill. 372, 374, 158 N.E. 118.) Once being given the opportunity of a hearing, a person “9 9 9 will not be permitted, when in court, to lie by and permit errors in the commissioners’ report to intervene * 9 9 ” (McCracken v. Droit, 108 Ill. 428, 432.) It has been held that where no objection was offered to a commissioner’s report, where the objector had actual notice of the report and did not raise his claims until he filed his objections to the master’s report of sale, he will be held to have waived his objections to the report. Shippert v. Shippert, 371 Ill. 267, 20 N.E.2d 597.

In the instant case defendant was silent through two hearings and allowed almost 2 months to intervene before raising any objection to this report or asking for the right to introduce evidence and cross-examination. It was not until 5 days before the sale was set to take place that she endeavored to raise this issue of valuation, and even then she wasn’t prepared to put Berkson on the witness stand. The proceedings connected with partition actions are long and involved. Plaintiffs’ complaint for partition had been filed in August of 1972. We will not allow a party to step in at the last minute to raise objections which should and could have been raised earlier and so further delay the course of partition proceedings. Defendant had the opportunity to present evidence and to cross-examine witnesses at the March 20, 1973, hearing. This she failed to do, and this is all due process requires. Even if she only had doubts as to the valuation submitted at this time, she could have requested a continuance. Upon this state of the record we hold that the trial court did not abuse its discretion in not ordering a rehearing.

Defendant further argues that the trial court erred in confirming the sheriffs report of sale because the purchase price was inadequate. Once more she points to Berkson’s appraisal of the premises and argues that the court has a continuing duty to see that the sale is for a fair price. Heller v. Heller, 147 Ill. 621, 35 N.E. 798.

Defendant does not argue that the mode of carrying out the sale was irregular. She only complains of the price. There was only one person who bid at this sale, Bottcher, and he bid two-thirds of the appraisal price as required by statute. (Ill. Rev. Stat. 1949, ch. 106, par. 60.) Defendant had every opportunity to bid herself. On June 13, 1973, the sale was confirmed.

A chancellor has broad discretion in approving or disapproving a report of sale, and his discretion will not be disturbed unless there is a clear abuse of that discretion. (Levy v. Broadway-Carmen Building Corp., 366 Ill. 279, 8 N.E.2d 671; Ryerson v. Apland, 378 Ill. 472, 38 N.E.2d 712.) “It is the policy of the law to give permanency and stability to judicial sales and to the purchaser the benefit of his bid. [Citation.] To disturb judicial sales for slight causes would impair that confidence essential to induce persons to become purchasers; * * (Blancett v. Taylor, 6 Ill.2d 434, 438,128 N.E.2d 916.) In Rader v. Bussey, 313 Ill. 226, 231, 145 N.E. 192, it was stated:

“Where a judicial sale has been conducted in the usual manner and in accordance with the directions and order of the court and the purchaser is a stranger to the order of sale, as appears to be the fact of this case, mere inadequacy of price wQl not justify a court in vacating the sale, so as to deprive the vendee of the benefit of his purchase, unless the inadequacy is such as amounts to evidence of fraud.”

Defendant has argued that the court has a continuing duty to oversee the sale. There is no question raised as to the mode of sale. We interpret the court’s continuing duty to apply basically to the type of case where circumstances have changed between the confirmation of the commissioner’s report and the sale affecting the appraised value or where it is alleged that the actual conduct of the sale was irregular. No such change of circumstances has been alleged in the instant case. Furthermore, even if we were not to view defendant as being estopped from using Berkson’s report as grounds for setting aside the sale, we do not feel that defendant’s sole averment of inadequacy of price is sufficient for us to hold that the trial court abused its discretion.

In connection with this latter point we note that it is well established that a condition precedent to a resale where inadequacy of price is alleged is that the objectors should bring the money into court, or make an advance bid, or give a guaranty or bond that there will be no loss on a resale. (Blancett; Illinois Joint Stock Land Bank v. Conard, 288 Ill.App. 475, 480, 6 N.E.2d 232.) From the motions filed in this court by the parties it is apparent that there have been two fires on the premises and that there is a real question as to whether a resale of the property could bring a greater price than that bid by Bottcher. Also, defendant has made no guaranties as are a prerequisite to a resale. Therefore, we find that the court did not abuse its discretion in overruling defendant’s objections and confirming the sale.

On July 13, 1973, defendant filed a motion to vacate several of the mesne orders of the trial court. Within this motion, and for the first time in the proceedings, she argued that the premises were “damaged during the pendency of this lawsuit by the plaintiffs and the lessee of the property, Mercantile Laundry Company” and prayed for leave to file a claim for these damages. The trial court denied this motion, and defendant contends this was error. Attached to the motion was a transcript of proceedings in a different case wherein Judge Covelli on June 12, 1973, in the case of Catherine Yangas v. Mercantile Laundry Co., No. 72 Ch. 3739, denied this same motion, intimated that his view was that the damage claim should be made in the partition suit but expressly stated that he couldn’t pass on the issue, and the court in the partition proceeding would have to rule on it.

Aside from citing some general principles of law, defendant has not specifically referred this court to any authority to support her position. We view this portion of defendant’s pleading as a motion to amend her counter-complaint or to set up a supplemental pleading. (Ill. Rev. Stat. 1963, ch. 110, pars. 39, 46.) Under these circumstances Ill. Rev. Stat. 1949, ch. 106, par. 71, provides that the Civil Practice Act shall control. The determining factor for overruling a judge’s disallowance of a motion to amend or to add a supplemental pleading must be found in a “clear abuse of his discretion.” (Ennis v. Illinois State Bank of Quincy, 111 Ill.App.2d 71, 248 N.E.2d 534; Rank v. Rank, 107 Ill.App.2d 339, 246 N.E.2d 12.) It has been held that if the motion contains a new theory and granting it would further delay the proceedings, the timeliness of the motion may be considered in denying it. Nurnberger v. Warren & Van Praag, Inc., 133 Ill.App.2d 843, 272 N.E.2d 234.

Although defendant averred that these alleged demages occurred throughout the pendency of the lawsuit, it was not until July 13, 1973, that she chose to assert her claim. In her original counter-complaint she only made claims for taxes and insurance which were conceded by plaintiffs. It becomes obvious that if this motion had been allowed, the proceedings would have been further delayed and evidence on an entirely new theory would have to have been presented. We note that although defendant claims both plaintiffs and the Mercantile Laundry Co., Inc., were responsible for this damage, the latter was dismissed from this suit very early in the proceedings. Furthermore, defendant has not contested the trial court’s finding that:

“* # it ^ plaintiffs have not been in possession of the premises partitioned herein during any of the period covered by this lawsuit; that the defendant prior thereto was acting as agent for all owners in the collection of the rent payment, of taxes and insurance.”

Nor can we view Judge Covelli’s statement as anything more than an expression of opinion not based on a thorough knowledge of the entire proceedings in this partition action. Finally, we note the trial court specifically amended the decree of partition so that it would not affect the rights of the parties against the Mercantile. Laundry Co., Inc. Under these facts and circumstances we cannot find that “clear abuse of discretion” which would justify reversing the trial court’s order.

For the reasons above stated the judgment is affirmed.

Judgment affirmed; appellee’s motion to dismiss appeal denied; defendant’s motion denied.

SULLIVAN, P. J., and LORENZ, J., concur.

       Plaintiffs have failed to appear er file a brief. Edward Bottcher, appellee and purchaser at the judicial sale, has appeared and has filed an answering brief.

       Paragraph 3 recites:
      “That the affiant has been informed, and verily believes, that the said Judges have made statements and expressed opinions which lead the affiant to believe that she cannot have an impartial and fair trial before the said Judges.”

       Defendant filed a motion in this court praying that we order the disposition of insurance proceeds covering the losses from a fire which occurred on the premises on February 26, 1974. Because of our decision on the merits of this appeal, defendant’s motion is denied.


author: Mr. PRESIDING JUSTICE SULLIVAN Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ralph Spain (Ralph Parrants), Defendant-Appellant.
    (No. 60089;
    First District (5th Division)
    November 8, 1974.

      Supplemental opinion filed December 13, 1974.

      Rehearing denied January 3, 1975.

      James J. Doherty, Public Defender, of Chicago (Judith A. Stewart and Ira Churgin, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal from a misdemeanor conviction for unlawful use of weapons. On appeal, defendant challenges the sufficiency of the complaint and further contends that he was a security guard and comes within a statutory exemption for such guards commuting from home to work within one hour of employment.

On June 1, 1972, at approximately 5:30 P.M., Officer Bally of the Chicago Police Department observed defendant, wearing a gun and holster at his side, in front of a residence at 5710 South' Marshfield Street, Chicago. Bally requested defendant’s gun registration and state gun owner’s identification. Defendant produced these two cards along with a third, showing that he was an employee of the Johnson Detective Agency. Defendant was then taken into custody and charged with unlawful use of weapons.

Prior to trial, the State’s Attorney asked leave to amend the complaint both as to the offense and as to defendant’s name. Permission was granted, and the amended complaint charged defendant with carrying “a firearm” within the corporate limits of Chicago. The court, in granting the amendment, stated:

“Leave to amend granted, that you had in your possession a loaded firearm within the corporate limits of the city of Chicago and not on your own place of business.”

The statute does, in fact, prohibit only the carrying of loaded firearms.

At trial, it was established that defendant resided at 225 West 107th Street and that he was at the address on South Marshfield “visiting my kids.” Defendant further testified that he was on his way to work at a Walgreen Drug Store when he was arrested at 5:30 P.M. The store is located some six or seven blocks from the South Marshfield address, and defendant stated he was scheduled to begin work at 6 P.M. that evening. He was in uniform when arrested.

Defendant introduced into evidence an employment card from the Johnson Detective Agency, various paycheck stubs from the agency, his time sheet for the week following the arrest, and a National Detective’s Association identification card. The State stipulated that defendant was an employee of the Johnson Detective Agency at the time of the arrest.

Defendant was found guilty of the offense of unlawful use of weapons and fined $100.

Opinion

We will first consider the contention that the complaint as amended was fatally defective because the word “loaded” was omitted from the charge of unlawful use of weapons. This offense, as defined in section 24 — 1(a) (10) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 24 — 1(a) (10)), is as follows:

“Unlawful Use of Weapons
(a) A person commits the offense of unlawful use of weapons when he knowingly:
* # #
(10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm.”

The State makes no contention that the adjective “loaded” modifies only “pistol” and not “revolver or other firearm.”

The Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 111— 3(a)(3)) provides that:

“(a) A charge shall be in writing and allege the commission of an offense by:
tt # #

(3) Setting forth the nature and elements of the offense charged.” A complaint that does not set forth the nature and elements of the offense charged fails to allege the commission of an offense and is thus subject to dismissal under the provisions of Section 114 — 1(a)(8) of the Code of Criminal Procedure. Ill. Rev. Stat. 1973, ch. 38, par. 114 — 1 (a)(8); People v. Abrams, 48 Ill.2d 446, 271 N.E.2d 37; People v. Billingsley, 67 Ill.App.2d 292, 213 N.E.2d 765.), Such error is not waived by failure to object at trial and may be attacked at any time. People v. Graves, 23 Ill.App.3d 762, 320 N.E.2d 95; People v. Billingsley, supra.

Here, the failure to charge in the complaint that the gun was loaded was a failure to allege an essential element of the offense. As stated on rehearing in People v. Pujoue, 23 Ill.App.3d 810, 320 N.E.2d 78, at page 2 of the slip opinion:

“In the instant case, the complaint failed to aUege that the pistol was loaded. Inasmuch as the term ‘a firearm to wit: 32 Cal H & R Revolver does not necessarily involve a loaded firearm in violation of the statute, we hold that the complaint failed to allege an offense.”

Nor does the correct oral reading of the statute by the judge on the motion to amend mitigate the error. Section 111 — 3(a)(3) of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 111 — 3(a)(3)) requires that the charge be “in writing” and that the written charge set forth all the essential elements of the offense.

We conclude that the complaint here fails to state an offense, and where a conviction rests on such a complaint we will reverse without remand. People v. Pujoue, supra; People v. Leach, 3 Ill.App.3d 389, 279 N.E.2d 450.

In view of this holding, it will not be necessary to discuss the remaining issue of the applicability and availability of the statutory exemption of security guards.

For the reasons stated, the judgment is reversed,

Reversed.

DRUCKER and LORENZ, JJ., concur.

SUPPLEMENTAL OPINION

Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

In this appeal from a misdemeanor conviction for unlawful use of weapons, we filed an opinion reversing the judgment of the trial court. We. held, under the authority of People v. Pujoue, 23 Ill.App.3d 810, 320 N.E.2d 78, that the amended complaint was fatally defective in that it did not state an offense because the word ‘loaded,” a necessary element of the offense, was omitted from the charge of unlawful use of weapons. Subsequent to the filing of our opinion, a question came to our attention which was not raised in the briefs or on oral argument; namely, whether defendant may have been convicted under a statute not in effect oil the date of the offense charged.

In this regard, we note that defendant was originally charged with a violation of section 24 — 1(a)(4) (Ill. Rev. Stat. 1971, ch. 38, par. 24— 1(a)(4)), but at the commencement of his trial the State was given leave to amend the complaint both as to offense and as to defendant’s name. The amended complaint under which he was tried and convicted charged a violation of section 24 — 1(a) (10), which did not take effect until July 1, 1972; whereas, the acts complained of took place 1 month before, on June 1,1972.

The rule regarding the effective date of statutes is well-settled. As stated in 34ILP Statutes § 193 (1958):

“Statutes generally will not be construed retroactively unless it clearly appears that such was the legislative intent.”

There is no indication of such legislative intent here, and we believe any such retroactive construction would be violative of the ex post facto rule. Burgess v. Salmon, 97 U.S. 381, 24 L.Ed. 1104 (1878); United States v. Casson, 434 F.2d 415 (D.C. Cir. 1970).

Consequently, subsection (10) not being in effect on June 1, 1972, the amended complaint here failed to state an “offense” as defined in section 102 — 15 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 102 — 15), and conviction thereunder was plain error (People v. Minto, 318 Ill. 293, 149 N.E. 241; People v. Graves, 23 Ill.App.3d 762, 320 N.E.2d 95, which a reviewing court may consider even though it was not brought to the attention of the trial court (Supreme Court Rule 615(a), Ill. Rev. Stat., ch. 110A).

Thus, we may properly take note of such error here and, although in our original opinion we have already reversed the judgment of the trial comt, defendant’s conviction under a statute not in effect was additional error which, in itself, requires reversal. See People v. Minto, supra; People v. Billingsley, 67 Ill.App.2d 292, 213 N.E.2d 765.

For this additional reason, we adhere to our original opinion reversing the judgment of the trial court.

Reversed.

DRUCKER and LORENZ, JJ., concur.

       Defendant had been misnamed Ralph Spain, and the amendment stated his correct name, Ralph Parrants.

       “(a) Upon the written motion of the defendant made prior to trial before or after a plea has been entered the court may dismiss the indictment, information or complaint upon any of the following grounds:
      * * *
      (8) The charge does not state an offense.”

       “§ 24 — 1. • * * * (a) A person commits the offense of unlawful use of weapons when he knowingly:
      (4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm.”

       Defendant had been misnamed Ralph Spain, and the amendment stated his correct name, Ralph Parrants.

       “§ 24 — 1. * 6 * (a) A person commits the offense of unlawful use of weapons when he knowingly:
      » e »
      (10) Carries or possesses in a vehicle or on or about his person within the corporate limits of a city, village or incorporated town, except when on his land or in his own abode or fixed place of business, any loaded pistol, revolver or other firearm.”

       Section 24 — 1(a) was amended by Public Act 77 — 1683, effective July 1, 1972, which added subsection (10).

       “§ 102 — 15. ‘Offense’ means a violation of any penal statute of this State.”


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Woodrow McGinnis, Jr., Defendant-Appellant.
    (No. 59146;
    First District (4th Division)
    November 13, 1974.

      Rehearing denied January 8,1975.

    Clarkston & Scott, of Chicago (Lucas T. Clarkston and Maurice Scott, Jr., of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Barry Rand Elden, Perry L. Fuller, Dennis J. Horan, and James W. Carter, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Woodrow McGinnis, Jr., was convicted of the crime of rape at a bench trial in the Circuit Court of Cook County and was sentenced to a term of not less than 4 years, nor more than 5 years.

The defendant contends the evidence is insufficient to find him guilty beyond a reasonable doubt.

The prosecutrix testified she left her apartment after 10 P.M. on April 30, 1971, with her 3-year-old child, to buy some liquor for her husband at a tavern one-half block from her home. She had undergone back surgery the previous March, and her doctor advised her to walk for exercise. After making her purchase she began walking home and noted two men standing at a bus stop. She identified the defendant as one of those men. She said he first passed her on the sidewalk and then came back and grabbed her, causing her to drop the bag she was canying. He told her to "shut up” and that he would kill her if she did not. She also stated he had something shiny in his hand. It might have been a knife or a key.

He forced her into an alley and into a back yard which was strewn with litter, where he forced her to lie down after taking off her underpants. He choked her as she repeatedly called out for her child. Another man pushed the child through the alley towards them, and the defendant threatened the child and made him sit down nearby.

The prosecutrix testified the defendant had intercourse with her and then tried to force her to commit an act of fellatio.

Officer Carter of the Chicago Police Department testified he arrived at the scene after receiving a call in regard to a woman calling for help. He saw a man sitting on top of a woman with his penis exposed, the womans dress pulled up, and the instant he turned on his light she called, “Help me, somebody help me.”

Upon investigation Officer Carter observed the jacket and underpants of the prosecutrix on the ground next to where she had been lying. One of her shoes was under a parked car and the other was in another part of the alley. Out on the sidewalk there was a brown paper bag with a broken bottle of Chámpale. He testified the woman appeared to be upset and kept saying that the defendant was going to kill her baby.

The defendant testified the prosecutrix approached him while he was standing on the corner of Kostner and Lake, and she asked him if he wanted to have “some fun.” She asked for, and he gave her, $10. They walked south on Kostner, and when he asked where they were going, she said she was taking him to her house because her husband would not be home for some time. He said he did not want to take the chance and asked her to go back to his car. She refused and walked away, saying, “I don’t guess there’s anything we can do.” He grabbed her and told her he wanted his $10 back. The bag she was carrying dropped and a bottle broke. She said, “That’s all right, it’s broken now, let’s go around here.” She led him into an alley and spread newspaper on the ground, where she began an act of fellatio. He told her he wanted to have intercourse, and she said her back was hurting. He assured her he would not hurt her back, and she took off her underpants and laid them down beside her shoes, which she had removed previously. He then knelt down intending to have intercourse with her, but the arrival of the police prevented it. He denied having achieved penetration.

The prosecutrix was taken to a hospital where a vaginal smear was taken. Upon being tested in the police crime laboratory, it proved negative.

■When asked how much money she had, she gave her purse to the police officer. It contained only a dollar and some change.

The defendant contends the account of the prosecutrix lacks verisimilitude because there was no corroborating evidence. He suggests that someone who had recently had back surgery would certainly have aggravated the condition if she were forcibly raped, but when she was taken to the hospital she did not complain of any aggravation, nor was there any testimony her clothes were damaged or dirty.

We do not find such reasons compelling in the light of the testimony of Officer Carter that the prosecutrix was upset following tire event and continually referred to threats of the defendant to do harm to her child. He also testified he was responding to a radio assignment to proceed to the vicinity where a woman was calling for help. When he arrived on the scene, she immediately called for help, and it is also significant that her shoes were found in different places. That contradicts the testimony of the defendant, who stated she had taken them off and placed them next to her.

Where a case is tried without a jury, the determination of the credibility of the witnesses is for the trial judge, and this court will not substitute its judgment for that of the trial judge who saw and heard the witnesses. (People v. Henson (1963), 29 Ill.2d 210.) In this case the trial judge heard the conflicting testimony of the witnesses and chose to believe the prosecutrix. We hold there is ample evidence in the record to support the finding that defendant was guilty beyond a reasonable doubt.

For these reasons the judgment of the Circuit Court, of Cook County is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE EGAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Maurice Pendleton, Defendant-Appellant.
    (No. 59062;
    First District (1st Division)
    November 27, 1974.

      Paul Bradley and Steven Clark, both of State Appellate Defender’s Office, of Chicago, for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dorothy B. Johnson, Assistant State’s Attorneys, of counsel), for the People. „
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

A jury convicted the defendant, Maurice Pendleton, of the murder of Deborah Goodlow and acquitted him of the murder of Dewey Crockett; he was sentenced to 100 to 199 years in the penitentiary.

On March 31, 1970, Priscilla Gilchrist was employed at the Madison Park Hotel at 1380 East Hyde Park Boulevard in Chicago as a switchboard operator and desk clerk. Her job included ‘buzzing the door” for people who wished to enter the hotel. At about 3 A.M., Dewey Crockett and another man came to the door to get into the hotel. Since she did not recognize them, she rang the phone at the door and asked whom they wished to see. They wanted to see Deborah Goodlow in room 601. They called up to room 601 and Miss Gilchrist “buzzed” them in. Bonnie Sibbert, another desk clerk, then came in and talked with her. Shortly thereafter, Deborah Goodlow came downstairs screaming and said someone had been shot in her apartment. She appeared hysterical and ran outside after asking the two women for help. The man who had accompanied Crockett into the hotel walked out of the elevator and started toward the front door. He stopped because he heard knocking from across the lobby. He started toward the knocking and then went out the side exit on Madison Park Street that Miss Goodlow had used. The man was described to the police as between 6T" and 6'2" tall, around 180 pounds, brown skin and wearing a black three-quarter length coat.

That morning Valley Morrison was in his apartment at 1330 East 51st Street which was about a half-block from the Madison Park Hotel. At about 3:50 A.M. he heard a woman screaming for help. He went to the window and saw a woman, later identified as Deborah Goodlow, running west on Madison Park Street with a man chasing her. She was running in a very frantic manner, but the man was overtaking her with ease. As the man closed the distance, she turned around and was shot in the upper body. The woman fell, and the man stooped over her and fired a second shot. Morrison yelled out the window, and the man looked up and then ran away. Morrison described the man as 6T" or 6'2", 180 pounds, wearing a black, knee-length cashmere overcoat and a grey pair of slacks. Morrison was about 20 feet away and four short stories up from the actual place of the killing.

When the police arrived they found the body of Deborah Goodlow lying at 1329 East Madison Park. She was dead from a gunshot wound in the neck. They then went to room 601 at the Madison Park Hotel and found the body of Dewey Crockett, dead of a gunshot wound of the head. He was a chronic narcotics user, and there was evidence of a recent injection. A pistol containing six unspent cartridges was found midway between Miss Goodlow’s body and the hotel. The mobile unit of the Chicago Crime Detection Laboratory searched for fingerprints in room 601. Crockett’s fingerprints were found on a glass; but the defendant’s were not found anywhere. The evidence technician testified that “there were smudges and overlays that could not be identified.”

Bonnie Sibbert identified the defendant as the man who followed Miss Goodlow from the hotel. She testified that she had seen him on several previous occasions when he came to visit apartment 601. Priscilla Gilchrist testified that the defendant resembled the man she saw follow Miss Goodlow through the lobby. When Valley Morrison was asked on direct examination if he could see anyone in the courtroom who resembled the man that fired the shots, he said that he could not. He was later recalled as a witness and testified that he had not understood the question previously asked of him and that the defendant resembled the man who fired the shots.

The defendant contends that he was not proved guilty beyond a reasonable doubt. The identification by Miss Sibbert was not that of a passing stranger, but of someone who had seen him on previous occasions and who walked “right by him on [her] way back to the desk.” Her positive identification is corroborated to some extent by Miss Gilchrist and Morrison, both of whom testified that the defendant resembled the man they saw. All three gave, descriptions which fit the defendant. All three remembered that the man they saw wore a dark, three-quarter length coat. Miss Gilchrist identified it as a fur coat. Further corroboration was supplied by the deceased Crockett’s father in two ways: First, he established that the defendant and his son were friends; and second, he remembered a dark, three-quarter length fur coat the defendant owned. Under this evidence the jury was justified in concluding that the defendant was the man who was in the room with Crockett and Goodlow when Crockett was killed and that he followed Miss Goodlow from the hotel. Although no one could testify directly that he was the man who fired the shot, we judge the circumstantial evidence was sufficient to establish his guilt beyond a reasonable doubt.

The defendant in his original brief alleged that the gun found midway between the body of Miss Goodlow and the hotel had been admitted into evidence, and this ruling was assigned as error. The State, however, had withdrawn its request for the admission of the gun and the six unspent cartridges, and the gun was never admitted. In his reply brief the defendant concedes that his original argument was mistaken in asserting that the gun had been admitted. His contention now is that reference to the gun prejudiced the jury. No case has been cited to support the defendant’s position. Moreover, we fail to see how the evidence prejudiced the defendant, since it was conceded that the gun had not been fired and that the defendant’s fingerprints were not found on it. Since it raised many unanswered questions, it was the type of evidence that could redound only in the defendant’s favor. And we note that only the defense attorney referred to the gun in his final argument.

The court gave People’s Instruction Number 13 (Illinois Pattern Instruction (Criminal) No. 3.04 (1968)) which provides as follows:

“Motive is that which prompts a person to act. The State is not required to prove a motive for the commission of the crime charged.”

The defendant refers to the comments of the instructions drafting committee and People v. Manzella, 56 Ill.2d 187, 306 N.E.2d 16, in support of his argument that it was error to give this instruction since, he alleges, the State did attempt to prove and did argue motive. The State’s only argument in response is that the defendant did not preserve the question for review because of the nature of his objection at the conference on instructions.

During the trial Officer Janatto testified that he obtained a hypodermic needle, syringe, and a measuring cup or spoon from the apartment of Deborah Goodlow. During cross-examination of Janatto, the defense attorney inquired into the fact that the officer had kept the needle in his personal locker and had not filed an inventory of it. On redirect, the following occurred:

“Q. In fact, Officer, were you not looking for a motive to this crime?
A. Yes, sir.
Q. In fact, Officer, besides the needle do you recall if there was some currency on the floor of that apartment, if you recall?
A. There was currency. I do not recall whether it was on the floor or where it was.
Q. Was that currency loose, if you recall?
A. Yes, sir.”

On recross the following occurred:

“Q. When you said you were looking for motive, did you believe that perhaps narcotics were being sold in the apartment?
A. We did not know.”

As noted previously, the pathologist who examined the body of Dewey Crockett testified that there was evidence that he was a chronic narcotics addict because of punctures indicating recent injection. On direct examination Dr. Kearns, the pathologist who examined the body of Deborah Goodlow, was asked whether he saw any evidence of needle puncture wounds characteristic of a drug addict. He answered that he had not.

At the conference on instructions the following occurred:

“The Court: Mr. Xinos [defense attorney], have you received a copy of the State’s instructions which they have tendered to me this morning, People’s instruction 13, I.P.I. 3.04 is there any objection to that?
Mr. Xinos: Well, I would object to that, Judge.
The Court: What is your objection?
Mr. Xinos: Well, the same objection that the State has to the second paragraph of the circumstantial evidence instruction. Nobody said anything about motive, nobody said they had a motive. I do not think now we have to explain their case away by saying we cannot prove motive and don’t have to.”

At that point, the defendant insisted, and the State conceded, that motive had not been proved. That being so, the trial court’s ruling was correct. Since he argued at the conference on instructions that motive had not been proved, the defendant may not now take the position that the instruction should not have been given because motive had been proved. See People v. Jones, 47 Ill.2d 135, 140, 265 N.E.2d 125.

The defendant now points to the closing argument of the prosecutor as reason for refusing the instruction. He contends that the final argument did in fact attempt to show the jury that the State had established a motive which in some way involved the use of narcotics. The remarks complained of refer to money left in the room and drugs. But the prosecutor told the jury that the State did not have to show motive and conceded that since money was left in the room, it was not a robbery attempt. He added: ‘Whatever the reasons, why, whether it was about drugs, who had drugs, we do not know. We never know because, as I said before, Mr. Pendleton did away with the only witness.” In our view, these remarks of the prosecutor in closing argument do not represent a position contrary to that taken by the State in the conference on instructions.

In his opening statement the prosecutor said: “Deborah Goodlow was pregnant at the time.” After objection, the court struck the “reference to pregnancy” and instructed the jury to disregard it. The prosecutor then said: “We expect to show she was carrying fetus in her person.” The court sustained an objection and again instructed the jury to disregard it. After a conference, out of the presence of the jury, the following occurred:

“State’s Attorney: Respectfully, when the coroner says there is a live seven-month-old fetus in the body, it is part of the coroner’s examination. I don’t understand why it would be objectionable.
The Court: I don’t think it is relevant.
State’s Attorney: The coroner will testify to her physical identification. Her mother will testify her daughter was pregnant.
The Court: If it becomes relevant, we will allow it. Right now I don’t perceive its relevance.”

Officer Dunson testified that he took Deborah Goodlow’s body to the morgue. The prosecutor asked if he noticed anything unusual about the body, and the officer replied that she was pregnant. Another objection was sustained, and the answer was stricken. Another conference out of the jury’s presence was conducted. The prosecutor argued that the shots had mutilated Deborah Goodlow’s face and the evidence of pregnancy would assist in identification and, further, that the evidence was relevant to show that she could not run fast and thus elude her pursuer. When the defense attorney agreed to stipulate to the identification, the court again instructed the jury to disregard any reference to pregnancy.

The next day, before Priscilla Gilchrist testified, the defense attorney made an “anticipatory objection” out of the presence of the jury. He stated that he was afraid that the witness would give testimony relative to the pregnancy. The court stated that it assumed that some evidence would show that the evidence of pregnancy was necessary, but it did not like to hear it in an opening statement. The prosecutor told the court that it was “absolutely necessary.” The defense attorney repeated his objection on the grounds that the evidence was not relevant and was prejudicial. The court stated that it agreed. The prosecutor responded that the jury would want to know why the woman had been unable to run away from the man who killed her. The court stated that it would wait to see what would happen and rule on the problem as it arose.

Priscilla Gilchrist then testified that Deborah Goodlow was “standing there rubbing her stomach, because she was pregnant at the time,” A defense objection was overruled. Gilchrist repeated her previous description and concluded, “I thought she was getting ready to have the baby.” An objection by the defense attorney to what the witness “thought” was sustained. Later Bonnie Sibbert testified that “Deborah Goodlow was wearing a short green dress, like a maternity dress.” Before the coroner’s physician testified, the defense counsel made an objection out of the presence of the jury asking that the State be admonished not to make any reference to pregnancy. The prosecutor responded: “We have no intention of bringing that out. I do not know what his answer will be.” The court then said: “He has a right to testify to the body he examined. I am not going to attempt to tell him what he should not say.” Dr. Kearns subsequently was permitted, over objection, to testify that Deborah Goodlow was 7 months pregnant.

The State seeks to justify the admission of the evidence of Deborah Goodlow’s pregnancy on the fact that it “explains her futile and thwarted escape from her assailant, when it is evidence that an otherwise slender, 20-year-old woman could have easily run to safety given the head start which Deborah had”; and on the fact that she was 7 months pregnant “contributed to and confirmed her identification.” Both reasons are untenable. No question of identification was present; and the court ruled at' one point, since the defendant stipulated to the identification, he would not permit the evidence. The comparative swiftness of foot of the deceased and the defendant was not in issue. The material fact is, if the defendant was the murderer, that he did catch up with the deceased, not the reason why he did; and her pregnancy and his fleetness were not material. The tenacity with which the prosecution pursued the right to introduce the evidence in the face of adverse rulings and the number of witnesses that were asked about her condition compel the conclusion that the only purpose was to create sympathy for the deceased and hostility to the defendant in the minds of the jurors. We note that in his closing argument the prosecutor said: “Once it got familiar to him, running around the street killing pregnant girls * * *.” (Emphasis added.) We judge, therefore, that the evidence should not have been admitted. (See People v. McCoy, 80 Ill.App.2d 257, 260-261, 225 N.E.2d 123.) Whether its admission was such error as to require reversal or, as the State argues alternatively, was harmless will be discussed later in this opinion.

Officer Janatto testified that he obtained a hypodermic needle and a measuring spoon from apartment 601. He said that he received the needle at 4:30 the morning of the killings.,For 2% years the needle had been in his personal locker. It was never submitted to the crime detection laboratory, and no mention was made in any of the police reports that a needle had been found in the apartment. Janatto did not remember if he had picked it up or if it had been handed to him by one of several officers who were present. There were no efforts to take fingerprints from it, and there was no marking oh the needle to show where it had been obtained or who had obtained it. He kept other evidence in his locker. He testified on cross-examination that he kept the needle to interrogate possible suspects. On recross, he testified that he did not know what significance it had in the case when he first received it. The first time he ever told anyone about the needle was about a year before trial when he told an assistant State’s attorney “in another courtroom.”

The needle was admitted into evidence over objection, and that ruling is assigned as error.

In support of its position the State cites People v. Harper, 26 Ill.2d 85, 185 N.E.2d 865; People v. Wrona, 7 Ill.App.3d 1, 286 N.E.2d 370; and People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475. In Harper, narcotics were seized, tested, inventoried, sealed and taken to the crime laboratory. The sealed envelope was placed in a safe to which six people had access. In Richards, blood samples were taken from the deceased, put in a container, sealed and placed in a freezer for 17 days. The freezer was not locked or secured. In Wrona, two television sets were found in sealed cartons in the trunk of a car. The trunk was locked by the police, and the car taken to the sheriff’s office. There the cartons were opened to check the serial numbers, and the cartons and the sets were placed in an evidence locker. The cartons and sets were identified at trial by the firm from which they were stolen. In all three cases the reviewing court held that in the absence of any indication of substitution or tampering, a proper foundation for admission had been established.

In addition to the factual distinctions between those cases and this one with respect to sealing and inventorying the evidence, there is one fatal foundation defect present in this case that was absent in those cases. The State, which has the burden of establishing a proper foundation for the admission of evidence, could not prove that the needle was in fact found in the apartment. Janatto could not say definitely whether he picked it up or it was given to him by another officer. If it was given to him by another officer, where that other officer found it is entirely speculative.

More in point is the case of People v. Brown, 3 Ill.App.3d 879, 881, 279 N.E.2d 382. In Brown, the defendant was convicted of driving under the influence of alcohol and with transporting an open bottle of liquor. The arresting officer testified he found a half-pint whiskey bottle on the floor of the car. He never inventoried the bottle; he did not mark it or seal it, and he kept it in his locker from the time of arrest until trial 4 months later. There was no testimony that he had sole access to his locker. The appellate court reversed, holding that the State failed to satisfy its burden of laying a proper foundation for the admission of the evidence. Similarly, we judge that the evidence the State presented here failed to satisfy its burden of establishing a proper foundation for the admission of the hypodermic needle and that its admission was error.

On the motion to suppress statements, Officer Lucious Moore testified that he questioned the defendant in a police station after he had been brought back from Texas. After warning the defendant of his Miranda rights, he asked the defendant if he wished to make a statement, and the defendant answered that he did not wish to make a statement. Moore then asked if the defendant “wished to ask [him] any questions concerning the case.” The defendant did not “respond immediately, but he did respond.” At that point, no further questions were asked to disclose what the defendant said nor how long after the question of Moore he responded. After the motion to suppress had been denied, out of the presence of the jury, on motion of the defendant, Moore was instructed to refrain from testifying before the jury that the defendant was arrested in Texas on another charge and that the defendant refused to make a statement. Later, in the presence of tire jury, the following occurred:

“State’s Attorney: Q. Did you have occasion in that police station to ask Mr. Pendleton whether he had any question?
A. Yes, sir, I did.
Q. What was his answer?
A. He made no answer immediately. Shortly thereafter he stated that, he asked that, did we know what was in the hypodermic needle.
Q. And what did you do then?
A. I asked what hypodermic needle.
Q. What did he say, if anything?
A. He stated the hypodermic needle that was found over on Hyde Park.”

No further questions were asked of the witness to explain how long an interval of time ensued between the first question he asked and the question of the defendant.

In his ruling on the motion to suppress statements the court said: “The defendant was fairly warned of his rights and understood them and voluntarily waived them if he made any statement.” The defendant contends that this ruling was error.

The State relies on the following cases: People v. Murphy, 3 Ill.App. 3d 345, 277 N.E.2d 721; People v. Landgham, 122 Ill.App.2d 9, 257 N.E.2d 484; and People v. Jenkins, 131 Ill.App.2d 49, 268 N.E.2d 198. In Murphy, the defendant was convicted of armed robbery. He was arrested with another man, a search of whose car disclosed a loaded carbine. A third man was arrested, and a gun recovered from his hotel room. All three were identified as the robbers. No question was raised in the reviewing court of the sufficiency of the evidence. A police officer testified that after he advised the defendants of their “rights,” he told them they would be put in a lineup; he then asked them if the victims of the robbery would be able to identify them. The defendants answered, “He will, unless he’s blind.” The reviewing court rejected the contention that the testimony was inadmissible under Miranda, noting that the defendant made no pretrial motion to suppress his statement and did not object to the testimony at trial. It added that, assuming a violation of Miranda, it was a "highly technical” violation and, in view of the nature of the other evidence against the defendants, was harmless beyond a reasonable doubt.

In Landgham, after discovering a child’s body and tracing a pool of blood to the defendant’s home, the police searched the home with the permission of the defendant’s mother. Blood stains were found in the home, and the officers noted shoes with brown spots on them. The defendant told the officers the shoes were his. At that point the officers informed the defendant of his constitutional rights. The defendant then told the officers his 6-year-old step-brother had stabbed the deceased. After being taken to the police station, the defendant changed his story and told them he had an urge and stabbed the deceased. He later gave a written confession to an assistant State’s attorney. The appellate court held that the first statements should have been suppressed but the subsequent written confession was properly admitted. In affirming the conviction, the court held that the statements improperly admitted did not establish anything that was not shown more strongly by other competent evidence. It concluded that in view of the overwhelming evidence of the defendant’s guilt, the admission of the statements was harmless error.

In Jenkins, a police officer who was in a tavern saw the defendant push the deceased outside after an argument. Someone ran inside and told him, “He just killed her.” The police officer ran out, saw the deceased lying on the street bleeding and pursued and arrested the defendant, who surrendered a knife. The police officer placed him under arrest and said, “You just killed a woman”; and the defendant responded, “The bitch needed killing.” The appellate court held that the officer’s remark at the time of arrest was merely explanatory and that the defendant’s statement was spontaneous and voluntary. The court also noted that the defendant had waived the question by failing to object to the testimony of the officer.

None of the cases cited by the State is persuasive authority for its position here. Jenkins, it can be readily seen, did not involve custodial interrogation, as indicated by the court’s reliance on In re Orr, 38 Ill.2d 417, 231 N.E.2d 424. In Murphy, unlike this case, the record does not show that the defendant refused to make a statement after being advised of his constitutional rights. Moreover, the court relied heavily on People v. Doss, 44 Ill.2d 541, 256 N.E.2d 753, wherein the Illinois Supreme Court upheld the admission of statements challenged under Miranda. The Seventh Circuit Court of Appeals subsequently reviewed a denial of the defendant Doss’ petition for writ of habeas corpus (United States ex rel. Doss v. Bensinger (7th Cir. 1972), 463 F.2d 576, cert. denied (1972), 409 U.S. 932). He had been advised of his Miranda rights and asked by the officers to waive them. He remained mute, refusing to give his name or age. He was confronted thereafter by his codefendant who told him he had confessed and then asked the defendant to show the police where a gun was hidden. Doss did so, and a motion to suppress the gun was later denied. The court of appeals reversed the denial of his petition and held:

“We are of the opinion that such police-initiated action as evidenced in this case does not yield evidence which properly can be admitted absent some other affirmative indication by a defendant that he desires to waive his Fifth Amendment rights.”

In Miranda v. Arizona, 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, the Court said (384 U.S. 436, 473-74):

“Once warnings have been given the subsequent procedure is clear. If the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease. At this point he has shown that he intends to exercise his Fifth Amendment privilege; any statement taken after the person invokes his privilege cannot be other than the product of compulsion, subtle or otherwise.”

And the Court added (384 U.S. 436, 476):

“Moreover, any evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the defendant did not voluntarily waive his privilege.”

The question asked by Officer Moore after the defendant said he did not want to make a statement could have been intended only to start the defendant talking. Why else would Moore be interested to know if the defendant had “any questions concerning the case”? He had already been with the defendant for a long period of time on the trip back from Texas. And when the defendant said, “Did [you] know what was in the hypodermic needle?”, the officer did not give an answer but asked another question, and a crucial one: “I asked, what hypodermic needle?”

We deem this form of interrogation to be a ruse designed to circumvent the mandate of Miranda which requires that “the interrogation must cease” when the individual indicates that he wishes to remain silent and which prevents admission of a statement if the accused was “tricked or cajoled into a waiver.”

In both Murphy and Landgham, the reviewing court found any violation of the Miranda rule harmless error in view of the overwhelming evidence of guilt. The State advances that argument here. We judge otherwise. This case, it must be remembered, hinges on a single identification. When the one witness who saw the shooting, Valley Morrison, was asked if he could identify anyone as being the man or resembling the man that he saw, he answered: “No, I cannot.” After leaving the stand, he later testified that he, a college teacher, did not understand the question. Bonnie Sibbert’s identification, vital to the State’s case, was strengthened by the fact that she had seen the defendant on many previous occasions. Yet she said that the day she testified could have been the first time she told anyone that she had seen the man before.

The hypodermic needle would have no probative value without the statement, and the statement would have no probative value without the needle. Together, however, they placed the defendant in the apartment and constituted strong corroboration of the identifying witness. We cannot, therefore, say that the admission of the defendant’s statement was harmless beyond a reasonable doubt.

In sum, we hold that the reference to the pregnancy to the deceased and the admission of the hypodermic needle and the statement of the defendant were cumulative errors that deprived the defendant of a fair trial. For these reasons, the judgment of the circuit court is reversed and the cause remanded for a new trial. Although we are remanding the case for a new trial, we deem it appropriate to pass on the defendant’s contention that his sentence was excessive. In view of his past record and the heinous nature of the offense, we cannot say that the trial court abused its discretion in the imposition of sentence.

Judgment reversed and cause remanded.

BURKE and HALLETT, JJ„ concur.


author: Mr. JUSTICE DIERINGER.

text:
    Edward I. Horwich, Plaintiff-Appellant, v. Elaine L. Horwich, Defendant-Appellee.
    (No. 59891;
    First District (4th Division)
    November 27, 1974.
    Arthur W. Friedman, of Chicago (Devoe, Shadur & Krupp, of counsel), for appellant.
    Thomas C. O’Brien, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE DIERINGER.