author: Mr. JUSTICE McGLOON Mr. PRESIDING JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Barbara Sue Nyberg, Defendant-Appellant.
    (No. 58107;
    First District (3rd Division)
    November 21, 1974.
    McNAMARA, P. J., dissenting.

      James J. Doherty, Public Defender, of Chicago (Bernard L. Schwartz, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Barbara Sue Nyberg, was indicted for two counts of murder in connection with the death of her 41/2-month-old son, Ronald Nyberg. (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 1(a).) She waived her right to a jury trial, and received a bench trial in the circuit court of Cook County. After approximately 2 days of trial during which time the prosecution presented a major portion of its case-in-chief, defendant entered a negotiated plea of guilty to voluntary manslaughter and was sentenced, according to the plea agreement, to a term of 5 to 20 years in the penitentiary. She appeals from the judgment which was entered on the plea.

On appeal, defendant contends that (1) the trial court erred in accepting a plea of guilty when defendant did not make an unequivocal statement of guilt, (2) there was no factual basis for the plea, and (3) the trial judge erred in that he did not personally inform the defendant of and did not determine that she understood the nature of the charge.

We reverse and remand with directions.

Defendant’s contentions must be evaluated in the context of the relatively extensive proceedings conducted before she entered her plea of guilty. In addition to the trial testimony, the court heard testimony during two hearings on defendant’s pretrial motions to suppress evidence. The trial court also included in the record three reports which related to defendant’s psychological condition and medical history. We have scrutinized the record carefully in order to evaluate defendant’s claim that there was no factual basis for the plea.

Defendant was a 22-year-old married woman who had a history of epilepsy. On June 3, 1971, at 7:30 A.M., Steve Tomaskovic, her 17-year-old boyfriend, telephoned the defendant, whom he had known for approximately one year. He finished drinking a bottle of wine, which had about “four fingers” left in it, and arrived at her home at about 8 A.M. Defendant, the deceased, her 4%-month-old son, and another child, aged 18 months, resided at the home of defendant’s parents. After his arrival defendant had two drinks of an alcoholic beverage known as Brass Monkey.

Defendant prepared a bottle for the deceased, after which she and her boyfriend went into an upstairs bedroom where defendant put the bottle next to the head of the infant in the crib. Tomaskovic testified at trial that at this time he did not see the baby move. On cross-examination it was brought out that on a previous occasion he may have said that he did see the baby move, although he denied making such a response.

Defendant and her boyfriend then went into a downstairs bedroom where they had sexual intercourse. After they had finished Tomaskovic went to the washroom for about 5 minutes. During a second act of intercourse, the 18-month-old child broke a flower pot, glasses, and some dishes. They got up, got dressed, and Tomaskovic went to the bathroom again. Defendant went upstairs to the infant’s bedroom and, according to her testimony, found that the infant was not breathing and in her opinion was unconscious.

When Tomaskovic came out of the bathroom he saw defendant coming down the stairs. According to his testimony, she leaned over, put her hands on her face, said she felt faint, and went outside. Tomaskovic cleaned up the mess that the older child had made in the kitchen. According to defendant’s testimony she called Doris Stewart, who called the police. Also, at that time she saw a friend of her brother outside and called to him for help. They went upstairs and defendant tried to resuscitate the infant. Shortly thereafter, an ambulance and the police arrived.

Tomaskovic testified that at no time that morning did he see the defendant strike the infant or hear her say that she was going to strike him.

Two police officers investigated the infant’s death. Officers Wagner and Kosinski arrived at defendant’s residence at 1:18 P.M. They went upstairs, felt the baby’s pulse, and noticed that his body was stiff and had a very pale color. Both observed two marks on the baby’s head which Officer Wagner described as resembling scars, and Officer Kosinski described as lines, like a welt. One mark went from one ear to the other ear across the back of his head. The other mark was just above one of the ears. Officer Wagner noticed no blood or other marks on the baby’s body.

At the hospital the baby was pronounced dead at 1:50 P.M. According to Officer Kosinski a doctor said the baby had been dead for approximately 5 to 11 hours. It was the stipulated testimony of defendant’s father that the infant was alive at 5:30 A.M. or 6 A.M. that morning.

The police took defendant to the Tinley Park police station. During questioning she related the events of the morning of June 3, 1971. She was awakened at about 4 A.M. or 4:30 A.M. by the baby’s crying. She fed the baby. She woke up again at 5:30 A.M. in order to wake up her father and sister. At 8 A.M. she got up again to feed the baby. At 9 A.M. her other son woke up. At 12 noon she gave the baby his medicine and he appeared to be alright. At 12:30 P.M. she went to feed him, noticed that he was not breathing, and called a friend for assistance. During this narrative defendant did not mention Tomaskovic.

The police then transported defendant to the courthouse at Midlothian, Illinois. Her father was present at this time. According to defendant she was told at the Tinley Park police station that a lawyer would be appointed for her, but none was appointed. Instead, she met Assistant State’s Attorney McNulty, whom she thought, according to her testimony, was her appointed counsel. She was again questioned and gave substantially the same account of the events of the morning of June 3, 1971. Still, she did not mention Tomaskovic.

At about 4 P.M. the police transported defendant back to the Tinley Park police station. At about this time, according to the testimony of Detective Deahl of the Tinley Park police, he was informed that the baby’s death was “unnatural.” Defendant’s father gave him permission to search the house and he directed other police officers to remove the crib from the bedroom. The police recovered a crib which had a small rod attached to it.

At the Tinley Park police station defendant made a statement which indicated that she still believed her baby was alive. During a questioning session, for the first time she reluctantly mentioned her involvement with Steve Tomaskovic. According to Officer Kosinski, who was present, she said that Tomaskovic came over to the house at about 7:40 A.M. At about noon he asked her to go outside to see if a friend of his was there. After being outside for about 5 minutes, she returned and heard some noise coming from upstairs which sounded like the baby’s crib moving. Ten minutes later Tomaskovic came downstairs and told her that the baby was asleep. Fifteen minutes later he left.

At this point in the questioning the assistant State’s Attorney directed the police to pick up Tomaskovic as a suspect. At the police station defendant and Tomaskovic confronted each other but their stories were conflicting. After Tomaskovic left the room defendant said “I might as well get it over with now. I did it. I killed my baby.” Soon thereafter, she retracted these remarks, stating that the only reason she said she killed her baby was to try to “get Steve off the hook.” During defendant’s second visit to the Tinley Park police station, the police took her statement in which she said that Tomaskovic was the father of her deceased child. Tomaskovic testified that while defendant was pregnant with the deceased she told him that he was the father, but he never believed her. He did testify that he had been having sexual intercourse with defendant for approximately 1 year preceding June 3, 1971.

On the following day, June 4, 1971, the police took defendant to the Bedford Park police station to take a lie detector test. After the test was completed, defendant was handcuffed and placed in a squad car. Detective Deahl informed her that she was under arrest for murder. She responded “So what? I did it.” According to the testimony of Matron O’Brien, who was also present, defendant became quiet and started crying after she made the statement.

During the change of plea hearing, the trial court made a number of psychological reports part of the record. In the words of one of the psychiatrists, “psychological testing shows her to be a rather passive person with a very low capacity for violence and certainly not of infanticida! potential.” Her psychological report showed her to be in the dull normal range of intelligence with serious psychological problems. In the words of a clinical psychologist who examined and tested her, “she is essentially an intellectually and emotionally impoverished girl,” but “there are no indications of homocidal [sic] tendencies in her test responses.” Before trial the court ordered a psychiatric examination. Following an examination the doctor filed a report indicating that the defendant was competent to stand trial. The report stated that she understood the nature and purpose of the proceedings and was able to cooperate with her attorney.

The procedural framework leading up to the guilty plea follows. On March 1, 1972, the court held a hearing on defendant’s pretrial motions to suppress evidence and denied the motions. Trial began on May 18, 1972. On May 19, 1972, the trial court interrupted the prosecution’s case-in-chief and held a hearing on defendant’s motion to suppress a statement that she allegedly made on June 4, 1971. The trial court denied the motion late in the afternoon of May 19, 1972, a Friday. The case was continued until Monday, May 22, 1972, at 11 A.M. The assistant State’s Attorney indicated that the first witness he would call Monday would be Dr. Kearns.

However, the next proceeding shown in the report of proceedings was on June 29, 1972, over one month later, at which time a hearing was held on defendant’s change of plea. The record shows no testimony of Dr. Kearns.

The following colloquy took place at the hearing on defendant’s change of plea:

“THE COURT: I wish you to pay close attention to what I have to say to you here.
Now, this may be a little difficult, but I want you to use as much composure as you can to understand everything that I say to you. First of all, I would like to say to you the Supreme Court Rule 402 of the State of Illinois says that your attorneys, the State’s Attorney and myself can have a conversation outside of your presence in the nature of plea bargaining. Then it is my job to come out here and tell you what we talked about, what we more or less agreed to, and see if that is what your attorney told you, so you will know in open court the talks that have been going on in conference in my Chambers, and, generally, it is this.
You know what you are charged with. You are charged with murder which, in Illinois, demands a minimum fourteen year sentence, but that if you plead guilty to a lesser charge of voluntary manslaughter, that carries a sentence of one to twenty years. And then if you plead guilty knowing all this, this court would sentence you from five to twenty years.
Now, that’s what went on outside of your presence these last few weeks in my chambers. Do you understand that?
MISS NYBERG: Yes.
THE COURT: And is that what your attorneys told you?
MISS NYBERG: Yes.”

The trial judge then admonished her that by pleading guilty she waived her right to a jury trial, that the minimum and maximum sentence for voluntary manslaughter was 1 to 20 years, and that she had a right to appeal. The Court continued:

“All right. Now, Mr. Bloss, or whoever will do the stipulating, I think I have admonished her to all of her Constitutional Rights. I’m quite sure she understands everything.
MR. BLOSS: Your Honor, Mr. Tuney [sic\ and I have discussed this case, and after trying it for two or three days, with the defendant, Barbara Nyberg, and with her mother and father and with her minister, all of whom are in court here today, and based upon everything that you have told her — I have told her the same things, and based upon the record and the evidence that we see, we recommend that she does accept the plea of guilty to voluntary manslaughter.
I have talked to Barbara about it. She says that she pleads guilty generally. She says she could not have murdered her child. She says the only way in which she could have possibly harmed her child would have been if her child had provoked her or did something to make her angry.
THE COURT: Based on that is why you are changing your plea; is that right?
MR. BLOSS: That’s right. That is the stipulation.
MR. KLAPMAN: Does she so stipulate to that?
MR. BLOSS: Yes.
THE COURT: She wiU have to say yes to that, that that is the stipulation. This is all in open court. I want her to say yes, she stipulates.
MISS NYBERG: Yes.”

The assistant State’s Attorney then reviewed the evidence which had already been presented, and represented to the court that the prosecution would have called Detective Deahl, if the case had continued. He then stated:

“Based on that, the People of the State of Illinois would have then rested their case in chief, which I believe would have been enough evidence to accept the basis of this plea.
THE COURT: Yes. All right. Based on that — One thing I would like to add. I am going to make a part of this record the communication from the psychiatrist who has examined Miss Nyberg at great length in between. This has nothing to do with the change of plea, but I will have you file all those papers. Put it in this file, Mr. Clerk. They are on my desk. I’ll bring them out. But based on that, and I think everybody knows everybody’s rights, what has to be done. I think society, based on this, is justified, and I think we are doing the best thing we possibly can do for Miss Nyberg under these conditions, to rehabilitate herself. You have a full and complete lige [sic] in tire future. So based on all these hearings in and out of Chambers, whatever was said here today, there will be a plea of guilty, finding of guilty, judgment on the finding. Sentence will be five to twenty years in the Womens State Penitentiary. That’s all.”

Our decision to reverse and remand is based on our agreement with defendant’s contention that there was no factual basis for the plea. Supreme Court Rule 402(c) (Ill. Rev. Stat. 1971, ch. 110A, par. 402(c)) provides that “[t]he court shall not enter final judgment on the plea of guilty without first determining that there is a factual basis for the plea.” The reason for the rule is to protect the defendant from pleading guilty to a crime which his acts and mental state do not constitute. People v. Hudson, 7 Ill.App.3d 800, 288 N.E.2d 533.

The reason for the rule is well served in this case. Here, we have a young woman with limited intellectual capacity and with apparently no previous experience with the criminal justice system. At the hearing on the change of plea, it was her appointed counsel who stated that she plead guilty generally, that she could not have murdered the child, and that the only way she could have harmed her child was if he had provoked her. The court asked the defendant if she stipulated to this. She responded yes. We question the ability of the defendant to understand the meaning of the word “stipulate.” But even more importantly, the words of her appointed counsel have the curious ring of the words, of the statute defining the offense of voluntary manslaughter. (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(a).) Certainly nothing in the record indicates that her conduct fits into this category. There is neither evidence nor suggestion that she was acting under a sudden and intense passion resulting from serious provocation, as the statute requires. The statute defines serious provocation as “conduct sufficient to excite an intense passion in a reasonable person.” In People v. Crews, 38 Ill.2d 331, 336, 231 N.E.2d 451, 453, the supreme court stated: “The doctrine of provocation is a compassionate one, based on a recognition of human frailty. It is ludicrous, however, to suggest that a reasonable person’ could have been provoked by the actions of a 2 year-old child. The contention has no merit.” The point is equally well taken in the instant case where a 4%-month-old child is involved.

Rule 402 requires substantial compliance with its provisions. From the point of. view of the trial judge, he may use any portion of the record to satisfy himself that a factual basis exists. (People v. Kinsley, 10 Ill.App.3d 326, 293 N.E.2d 627.) Usually the judge will examine portions of the record, such as trial testimony, statements of defendant, stipulations of' counsel, or presentence reports, in order to make a determination. Moreover, it has been held that if the judge explicitly states on the record that he is satisfied that a factual basis exists, based on his examination of certain sources, this is a sufficient determination, even though the record itself does not show the facts underlying his determination. (People v. Doe, 6 Ill.App.3d 799, 286 N.E.2d 645.) After carefully and thoroughly reviewing the record in the instant case, we find it insufficient to sustain a guilty plea to any grade of homicide.

The State contends that defendant’s in-court statement that the only way she could have possibly harmed her child would have been if her child had provoked her or did something to make her angry, combined with the extrajudicial statement that she “did it,” is sufficient to provide a factual basis for the plea. We do not agree. The standard of proof necessary to sustain a factual basis for a guilty plea is less than that required to support a conviction after trial. (People v. Arnold, 18 Ill.App.3d 95, 309 N.E.2d 406.) Just how much less is difficult to articulate. However, counsel’s statement at the change of plea hearing was not an unequivocal declaration that defendant did harm her child. Similarly, the bald statement, “I did it,” without any more detail, in light of defendant’s statement that she may have been trying to protect her boyfriend, does not connect defendant’s acts and mental state with the acts and mental state which constitute the crime. Compare People v. Logan, 16 Ill.App.3d 1000, 307 N.E.2d 169, and People v. Woods, 17 Ill.App.3d 835, 308 N.E.2d 856, with People v. Arnold, 18 Ill.App.3d 95, 309 N.E.2d 406, and People v. Mangual, 19 Ill.App.3d 172, 311 N.E.2d 189.

EquaUy distressing to us is the failure of the record to show that death was caused by a criminal agency. There was no expert medical testimony as to cause of death. The State indicated at one point in its case-in-chief that Dr. Kearns, a coroners pathologist, would be caUed to testify. If he did testify, there is no indication in the record what his opinion was as to cause of death. Even without medical testimony there was no showing of what acts defendant did in order to kill the infant, from which the cause of death could be inferred. From aU that appears in the record, the infant may have succumbed to “sudden unexpected crib death,” as defendant suggests. The State argues that the hearsay testimony of a police officer that the death was “unnatural” is sufficient to show that death was caused by a criminal agency. We think that it would be prejudicial in this murder prosecution to rely on proof of this nature to establish a factual basis for the plea.

In conclusion, we find that the trial court committed reversible error. in entering judgment without adequately determining that a factual basis existed for the plea of guilty. Accordingly, we reverse the judgment of the circuit court of Cook County, and remand the cause with directions to aUow defendant to plead anew. Under these circumstances we need not consider the other contentions on appeal.

Reversed and remanded with directions.

MEJDA, J., concurs.

Mr. PRESIDING JUSTICE McNAMARA

dissenting:

I must respectfuUy dissent. I believe that there was a factual basis for defendant’s plea of guilty.

Supreme Court Rule 402(c) provides:

“The court shaU not enter final judgment on a plea of guilty without first determining that there is a factual basis for the plea.”

The Committee Comments regarding Rule 402(c) state:

“Such inquiry is not uncommon in current practice, but heretofore has not been specifically required by law. The language of paragraph (c) is based upon the recent revision of Rule 11 of the Federal Rules of Criminal Procedure, and, as is true under the Federal rule, no particular kind of inquiry is specified; the court may satisfy itself by inquiry of the defendant or the attorney for the government, by examination of the presentence report, or by any other means which seem best for the kind of case involved.” S.H.A. ch. 110A, Committee Comment to § 402(c) (pocket part 1974).

The quantum of proof necessary to determine that there is a factual basis for the plea of guilty is less than that necessary to sustain a conviction after a full trial. The reasonable doubt standard is inapplicable. (People v. Hudson (1972), 7 Ill.App.3d 800, 288 N.E.2d 533; People v. Arnold (1974), 18 Ill.App.3d 95, 309 N.E.2d 406.) Indeed, in Hudson, cited by the majority, the court went so far as to hold that the standard for a factual basis was not even a preponderance of evidence that defendant committed the offense, so long as there was a basis for the court to connect defendant’s acts and intent with which he acted and the acts and intent required to constitute the offense. (Also see People v. Ballauer (1974, No. 59126), 23 Ill.App.3d 711.) This court has also held that a trial judge may use any portion of the record, even facts brought out at the hearing in aggravation and mitigation after acceptance of the plea, to find a factual basis for the plea. People v. Warship (1972), 6 Ill.App.3d 461, 285 N.E.2d 224; People v. Kinsley (1973), 10 Ill.App.3d 326, 293 N.E.2d 627.

In the present case, after 2 or 3 days of trial, but before the State had rested, the trial court had heard three witnesses testify concerning defendant’s extrajudicial confession of guilt. The court had also heard defendant’s in-court statement through counsel that the only way she could have possibly harmed her child would have been if her child had provoked her or had done something to make her angry. These facts appear to me to more closely comply with the mandate of Rule 402(c) than the facts found in our per curiam decision in Kinsley. In holding that the trial court had substantially compfied with that provision of the rule in that case, we noted that when defendant had been asked by the trial judge if he had in fact shot his wife, he answered “I must have * # * [pjeople said I did. I had the gun, and she said, ‘Oh, my God, I am dying.’ ”

While, in a trial, a corpus delicti must be proved, independent of a confession, beyond a reasonable doubt, it need not be proved beyond a reasonable doubt nor independent of a confession where the judicial inquiry is one of factual basis for a guilty plea. The Committee Comments on Rule 402(c) make clear that an admission by defendant is sufficient to establish a factual basis for a plea. Under the Rule, the evidence of marks on the victim’s head and the testimony, although hearsay, that the cause of death was “unnatural” also could be considered by the judge in determining a factual basis. In my judgment, there was an adequate factual basis for defendant’s plea of guilty to voluntary manslaughter. There was substantial compliance with the requirements of Rule 402(c), and I would affirm the judgment of the circuit court of Cook County.

       For a discussion of this medical phenomenon, see Curran, An Enigma Wrapped in Swaddling Clothes: Congress and “Crib Death,” 287 New Eng. J. Med. 235 (1972); Letters on Medical Examiners and Infant Deaths, 287 New Eng. J. Med. 1050 (1972).


source: Caselaw Access Project

author: Mr. JUSTICE SEIDENFELD

license: Public Domain

text:
    Arthur R. Stevens III, d/b/a The Roman House, Plaintiff-Appellant, v. The County of Lake et al., Defendants-Appellees.
    (No. 74-232;
    Second District
    November 27, 1974.

      Collins, Stepanich & Collins, of Waukegan (Thomas P. Stepanich, of counsel), for appellant.
    Jack Hoogasian, State’s Attorney, of Waukegan (Julius Abler, Mark Zide, and William Marlatt, Jr., Assistant State’s Attorneys, of counsel), for appellees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

Plaintiff filed a three-count complaint against the chairman of the Lake County Liquor Control Commission, its commissioners, and the County of Lake. He sought to enjoin the commission from interfering in the operation of his liquor business, which featured nude dancing as entertainment, as well as a declaration that part of the Lake County Liquor Control Ordinance was unconstitutional. He also sought to require issuance of a local liquor license by writ of mandamus.

The trial court initially granted plaintiffs request for a temporary injunction but, after a subsequent hearing, vacated the order, finding that the plaintiff had never been issued a local liquor license and was therefore in violation of those sections of the County Liquor Control Ordinance requiring retail liquor businesses to obtain and display an appropriate license. Accordingly, Count I of the complaint, seeking injunctive relief, was dismissed. The plaintiff then filed notice of interlocutory appeal under the provisions of Supreme Court Rule 305(b)(4) (Ill. Rev. Stat. 1973, ch. 110A, par. 305(b)(4)), and this court entered a stay order pending appeal which would have permitted him to continue operation of his liquor business without interference providing that he refrained from conducting any nude dancing on the premises. A second hearing was then held in the trial court on the mandamus and declaratory judgment counts (II and III) of the complaint as amended, and the trial judge entered an order dismissing both counts with prejudice. It is from this order that plaintiff also appeals.

In count III of his complaint, plaintiff requested that the provisions of the Lake County Liquor Ordinance prohibiting nude dancing be declared unconstitutional. We deem this issue to be controlled by the opinion of this court in Cheetah Enterprises, Inc. v. County of Lake (1974), 22 Ill.App.3d 306, 317 N.E.2d 129, filed subsequent to plaintiffs present appeal. Accordingly, we hold the challenged provisions of the ordinance to be valid and conclude that the trial court properly dismissed count III of the complaint.

With reference to the remaining issues, plaintiff contends that the trial court erred in finding that no liquor license had ever been issued to him by the local liquor commission. He argues that he complied with all the requirements of the county liquor ordinance which are precedent to the issuance of a local liquor license and that delivery of the physical license was therefore a nondiscretionary ministerial act as to which mandamus was a proper remedy. He also contends that his remedies were not barred, as the trial court also found, because of failure to pursue administrative review.

The County responds that the trial court’s finding that no liquor license had been issued was a determination of fact and must stand since it was not against the manifest weight of the evidence and that the trial court lacked jurisdiction to order the issuance of a license or to grant other relief because plaintiff had not exhausted his administrative remedies. Additionally, the County has filed motions which we have taken with the case urging a dismissal of this appeal because of plaintiffs failure to exhaust administrative remedies and seeking an order to hold plaintiff in contempt of this court for his alleged violation of the stay order by advertising and providing nude dancing entertainment and solicitation of patrons in conjunction with the sale of liquor on his business premises.

We first consider the motion to dismiss the appeal. It appears that the plaintiffs original complaint for mandamus and injunction dated July 5, 1974, was filed after the first hearing before the Liquor Control Commission of Lake County during which plaintiff claims he was informed that a license would be issued to him in due course. On July 11, 1974, however, plaintiff was required to participate in a further hearing before the local Liquor Control Commission, and at that time he testified that he had hired nude dancers beginning on July 3, 1974, and that solicitation of patrons was made by girls who earned a certain commission for each drink solicited. He said that he made the decision to hire the nude dancers between June 28 and July 2. On the contrary, Mr. Coles, chairman of the Commission, testified that no decision to grant or deny plaintiffs application for a liquor license had been reached at the initial hearing and that hearings in the matter were therefore never terminated. It was not until July 25, 1974, that plaintiffs application for a local liquor license was finally acted upon. In a letter from the chairman of the local commission, Stevens was advised that his application had been denied. The reasons included a finding that Stevens was not a resident of Lake County at the time of his application, that he had failed to establish his ownership of the premises sought to be licensed and that he had failed to properly describe the premises as required by the Lake County Liquor Control Ordinance. Furthermore, it was noted that, after representing to the commission under oath that he would not engage nude dancers, Stevens provided nude dancing entertainment and permitted the solicitation of customers in conjunction with the sale of liquor on the premises without having first been issued an appropriate liquor license.

Plaintiff thereupon amended his complaint in the trial court to allege the denial of his application for a local liquor license, and, on August 5, 1974, he filed his notice of appeal pursuant to section 8 of the Dram Shop Act (Ill. Rev. Stat. 1973, ch. 43, par. 153) from the written order of the Lake County Liquor Control Commission refusing to issue the license. He further requested a hearing de novo before the State Liquor Control Commission and it appears that the proceedings before the State Commission are still pending. The County argues that the plaintiff’s failure to exhaust administrative review procedures precluded jurisdiction in the trial court and makes the proceedings here moot. We do not agree. We think that the question of exhaustion of administrative remedies goes to the propriety of the trial court’s dismissal and not to its jurisdiction. In ruling on that question, therefore, we do not deal with a case that is moot. (See De Kalb Savings & Loan Ass’n, Inc. v. Hulman (1968), 91 Ill.App.2d 477.) This is not to say, however, that the trial court was in error in dismissing the complaint below. We conclude, to the contrary, that the court acted correctly and should be affirmed.

Mandamus is not a writ of right but is awarded solely in the exercise of sound judicial discretion in accordance with legal principles and only where the plaintiff establishes a clear right to the extraordinary remedy. (People ex rel. Hoagland v. Streeper (1957), 12 Ill.2d 204, 218; People ex rel. Hamer v. Jones (1968), 39 Ill.2d 360, 368.) Mandamus is a proper remedy to compel a public official to perform an official act which is purely administrative in scope or to compel a public official to perform a nondiscretionary ministerial duty if the relator has a clear legal right to have the duty performed and it appears that the official has arbitrarily and without authority refused to perform it. (People ex rel. Richter v. Telford (1968), 103 Ill.App.2d 132, 134; People v. Civil Service Com. (1969), 117 Ill.App.2d 50, 57.) Where the acts to be directed are not ministerial, however, but rather within the discretion of a public official or administrative agency mandamus wffl not lie to compel the manner of exercise of that discretion unless an abuse has been shown. Lenert v. Wilson (1965), 56 Ill.App.2d 325, 332.

In making determinations with regard to the Hcensing of local liquor businesses it is established that a considerable degree of discretion is vested in local liquor control commissioners. (Daley v. License Appeal Com. (1956), 11 Ill.App.2d 421, 425-26.) The business of selling alcoholic liquors at retail when not properly done is a business “fraught with danger to the community” and raises peculiarly local problems pertaining to the public health, safety and morals of the community. (Day v. Illinois Liquor Com. (1963), 39 Ill.App.2d 281, 287.) Thus, a sound basis in public pohcy exists for vesting discretion in the local liquor control commission. Such power, however, must not be abused. One applying for a license is entitled to fair treatment and good cause must be shown for the denial of an application. McCray v. Daley (1971), 133 Ill.App.2d 67, 69; see also 52 Am. Jur. 2d Mandamus § 213 (1970).

Plaintiff argues that he had met all of the conditions precedent to the granting of the license at the initial hearing on June 27, except for documentation, subsequently furnished and approved, and that mandamus should therefore lie to compel the liquor commissioner to perform the ministerial act of signing and issuing the document itself. He concludes that the license was constructively issued on July 2 when he deposited his $1,500 fee and was given a receipt which referred to license 159. Thereafter, he argues, the safeguards and procedures necessary to revoke a license once issued should apply.

Plaintiff Stevens testified at the hearing on July 11 that he talked with the chairman of the Liquor Control Commission at the conclusion of the June 27 hearing and was told that there would be no further hearings. He then inquired as to when he would have to pay the $1,500 fee and was told by Mr. Coles that he should pay when he got the license. Plaintiff further testified that the attorney for the commission had requested a waiver from the previous licensee and a copy of the purchase agreement and that these were delivered. On July 2, following delivery and approval of these documents, plaintiff claims that he went to the commission office and was told by the secretary, Linda Hensgen, that she had written a note to tell him that his license was ready to be picked up. According to his further testimony Stevens gave her the $1,500 check and received the receipt upon which the number 159 was written. He claims that Miss Hensgen told him that he could open up on the basis of the receipt and that the original license would be mailed to him.

Linda Hensgen testified that she assigned a license number on the receipt at Stevens request, that she did not tell him that the license was issued, that she was not authorized to issue licenses on behalf of the county, and that chairman Coles had never given her a signed license. The license fee check received from the plaintiff was never cashed by the comity.

Chairman Coles testified that he probably had indicated to Stevens after the first hearing on June 27 that it would be possible Stevens would not have to return for any further hearings. Coles indicated that this was standard procedure, established to save an applicant the aggravation of coming back as the license was not usually issued until the commissioners had a final hearing and discussed the application. Further testimony established that the regular motion to issue a license had not been made at the June 27 hearing, that the hearing was continued to an unspecified date, that furtiier hearings on the application were ultimately held, and that the final decision denying plaintiff’s application was not made until July 25.

On this record plaintiff has not sustained the burden which is upon him to show a clear and undisputed right to the writ of mandamus. (See People ex rel. Latimer v. Board of Education (1946), 394 Ill. 228, 236; People ex rel. Pignatelli v. Ward (1949), 404 Ill. 240, 244.) The applicant argues on one hand that the license was in fact issued and, on the other, that he was entitled to a writ of mandamus to require the commissioner to issue the license. In any event, despite conflicting evidence, the trial court’s factual determination that the license was not issued is not against the manifest weight of the evidence.

Plaintiff’s argument that the license was constructively issued is also not persuasive. Even if we were to accept his argument that at the time of the first hearing all conditions precedent to the issuance of the hcense had been met and no further hearing was then contemplated, it would not necessarily follow that mandamus should lie. Plaintiff relies principally on the holding in People ex rel. Dickey v. White (1965), 59 Ill.App.2d 148, to support his argument. That decision, however, involved a plumbing license issued pursuant to the Plumbing License Act (Ill. Rev. Stat. 1963, ch. 111%, par. 116.42) which required the director of registration of the county to issue a plumbing license certificate to every applicant who had passed the examination and paid the required fee. It is apparent, as the appellate court held in its opinion, that no discretion remained in the director to refuse a license to one who had passed the examination. In contrast, the licensing scheme evident in the dram shop enabling legislation (Ill. Rev. Stat. 1973, ch. 43, par. 110) provides a far greater discretion in local liquor commissioners to determine, subject to the right of appeal, the qualifications of an applicant for a local retailer’s license. (Retail Liquor Dealers Protective Ass’n v. Fleck (1951), 408 Ill. 219, 224, 227.) As a corollary, the local commissioner may not be compelled by writ of mandamus to issue a license which has been reasonably and fairly refused in the exercise of such discretion. See Harrison v. People ex rel. Raben (1906), 222 Ill. 150, 153.

Further, it is undisputed that plaintiff was specially asked at the June 27 hearing whether he would have nude dancing in his establishment and responded that he would not. Despite his representation, plaintiff did, in fact, provide his customers with that precise form of entertainment. At the time there was in force a regulation in Lake County which we have construed as properly prohibiting nude dancing in liquor establishments subject to the regulation. Cheetah Enterprises, Inc. v. County of Lake (1974), 22 Ill.App.3d 306, 317 N.E.2d 129.

In keeping with the purposes of dram shop legislation and the evils intended to be avoided therewith, when a liquor licensing authority discovers false statements in an application or other previously unknown grounds which would justify either revocation or denial of a license prior to the actual execution and delivery of the license document, it should not be necessary for the licensing authority to first proceed with the execution and delivery of the license and to then institute revocation proceedings. Accordingly, mandamus does not properly lie to require issuance of the liquor license. It would, of course, follow that if the plaintiff did not have a license to operate and could not require that one be issued there was no basis for the injunctive relief sought.

The trial court dismissed the cause on the grounds that counts II and III did not present a justiciable controversy when considered in light of section 2 of the Administrative Review Act (Ill. Rev. Stat. 1973, ch. 110, par. 265), which prohibits any equitable or common-law manner of reviewing the decision of an administrative agency specifically adopting the provisions of the Administrative Review Act.

Based upon our conclusion that the record supports the finding of the trial court that no liquor license had, in fact, been issued by the liquor control commission and that subsequent to the July 2 date relied upon by plaintiff further discretion was vested in the defendants to rule on plaintiff’s application, we would agree that plaintiff was bound to pursue his remedies under the Administrative Review Act.

We have concluded that at the time plaintiff originally sought equitable and common-law relief below his cause was still pending before the local liquor control commission. During this period, the trial court dismissed count I of the plaintiff’s complaint. After subsequent hearings in the trial court, counts II and III of the complaint were also dismissed. These remaining counts were dismissed, however, after the licensing matter had already been concluded by the local commission and review in a trial de novo was available before the State Liquor Control Commission under provisions of the State Liquor Control Act (see Ill. Rev. Stat. 1973, ch. 43, par. 153). Since the Administrative Review Act exclusively applies to and governs actions to review judicially a final decision of an administrative agency when the act creating the agency provides for administrative review (People ex rel. Chicago & N.W. Ry. Co. v. Hulman (1964), 31 Ill.2d 166, 169; People ex rel. United Motor Coach Co. v. Carpentier (1959), 17 Ill.2d 303, 306) and in view of the fact that section 8b of tire Illinois Liquor Control Act (Ill. Rev. Stat. 1973, ch. 43, par. 154a) provides for the administrative review of final rulings of the State Liquor Commission, the trial court properly concluded that plaintiff had failed to exhaust his administrative remedies before seeking judicial relief.

For the reasons stated we affirm the judgment below.

The county has also filed a motion, which we have taken with the case, seeking to hold plaintiff in contempt for violation of this court’s order of July 23, 1974, continuing in force a temporary injunction which was issued but later dissolved by the trial court.

The injunction restrained the county or its employees from interfering with the conduct of plaintiff’s business, provided plaintiff refrain from conducting any nude entertainment upon his business premises. Our stay order was to become effective upon the filing of a $500 bond by plaintiff and to remain in force until further order of this court, unless the proviso contained therein was breached. Plaintiff in his answer to the county’s motion for contempt admits that he served alcoholic beverages and presented nude dancing but denies that our order of July 23, 1974, was in effect. The defendant has made a further motion to vacate our stay order which we have also taken with this case.

The courts are vested with an inherent power to punish for contempt as an essential incident to the maintenance of their authority in the administration and execution of their judicial powers. (People v. Javaras (1972), 51 Ill.2d 296, 299.) We think it follows that this power further inheres to punish the violation of an order in the aid of a reviewing court’s appellate jurisdiction. (See In re Koome (1973), 82 Wash. 2d 816, 514 P.2d 520, 523; In re Estate of Cassidy (S. Ct. Me. 1973), 313 A.2d 435, 439; see also Ill. Rev. Stat. 1973, ch. 110A, par. 366(a)(5).) We find no occasion to exercise this power here, however.

The stay order expressly provided that it was to “become effective upon the filing of a $500 bond by the plaintiff.” The bond was not filed and the stay order thus never went into effect, although the State apparently believed it was operative. Even if the stay order had been in effect, it would have been effectively terminated when the plaintiff combined the sale of intoxicating beverages with the furnishing of nude dancing. Accordingly, defendants could thereupon have proceeded against the plaintiff as if there were no stay order. The motion to hold plaintiff in contempt is therefore denied. The subsequent motion of defendants to vacate our stay order is rendered moot and is also denied.

Affirmed.

T. MORAN, P. J., and RECHENMACHER, J., concur.


text:
    Robert B. Hall et al., Plaintiffs-Appellees, v. Orlikowski Construction Company et al., Defendants-Appellants.
    (No. 74-262;
    Second District
    November 27, 1974.
    Reid, Ochsenschlager, Murphy & Hupp, of Aurora (P. Scott Courtin, of counsel), for appeHants,

      Robert A. Chapski, of Elgin, and Lord, Bissell & Brook, of Chicago, for appeUees.
   Mr. JUSTICE SEIDENFELD

delivered the opinion of the court:

The defendants, Orlikowski Construction Company, a corporation and Bruno B. Orlikowski, individually and d/b/a Orlikowski Construction Company (hereinafter referred to as Orlikowski) have filed an interlocutory appeal pursuant to Supreme Court Rule 307(a)(1) (Ill. Rev. Stat. 1971, ch. 110A, par. 307(a)(1)) from orders of the trial court granting and refusing to dissolve a preliminary injunction. The injunction order restrained the Telegraph Savings and Loan Association (hereinafter referred to as the Association) and Old Republic Insurance Company (hereinafter referred to as the Insurance Company), additional defendants, from turning over insurance proceeds to Orlikowski, a contractor, in payment for repair of damages to the plaintiffs’ home from a fire.

The injunction order was issued on the basis of a complaint which the plaintiffs filed on April 26, 1974, against Orlikowski, the Insurance Company and the Association. The plaintiffs, in alleging a breach of contract on the part of Orlikowski, sought to have the contractor respond in damages and also asked that the Insurance Company and the Association be restrained from delivering to Orlikowski the proceeds of an insurance policy to which the plaintiffs were entitled as the result of fire damage to their home.

The complaint alleged that the plaintiffs entered into a written contract with Orlikowski to repair and remodel their home in a good and workmanlike manner for the sum of $15,900, and that Orlikowski has refused to adequately repair the premises by reason of which the plaintiffs have been damaged in the sum of $20,000. The complaint stated that as a result of Orlikowski’s faulty workmanship and his refusals to remedy the situation, the plaintiffs have refused to authorize the delivery to him of a check in the amount of $15,900 which the defendant Insurance Company, as the plaintiffs’ insurer, deposited with the defendant Association. And that all of the defendants have acted in concert to compel the plaintiffs to turn over the check to Orlikowski. The prayer of the complaint was for a judgment against Orlikowski in the sum of $20,000 and costs and for the Insurance Company and the Association to be restrained from paying Orlikowski until further order of the court.

On May 16, 1974, the injunction was granted by a judge of the Kane County Circuit Court upon the allegations in the complaint. The order directed the Association and the Insurance Company to deposit with the clerk of the circuit court the insurance proceeds in question.

It appears that Orlikowski was personally present but without counsel when the injunction under order was issued, and he was not served with the summons on the complaint until 7 days later.

After the proceeds were deposited as directed, Orlikowski moved to dissolve the injunction and also moved for a change of venue on the ground of the prejudice of the trial judge. In addition, the Insurance Company and the Association moved to have the complaint dismissed against them for failure to state a cause of action. The change of venue was granted on July 12, 1974, and the other motions were heard before the trial judge below on reassignment. He dismissed the Association and the Insurance Company from the case but denied Orlikowski’s motion to dissolve the injunction.

Orlikowski contends that the allegations of the complaint are insufficient to warrant the relief sought. In particular, the defendants aUege that no emergency has been shown to exist and that the plaintiffs have an adequate remedy at law by an action on the contract. In addition, Orlikowski contends that the court erred in issuing the injunction upon an unverified complaint.

The plaintiffs contend that Orlikowski lacked standing to challenge the issuance of the injunction because it was directed only against the Association and the Insurance Company. And they further argue that because the solvency of the defendants cannot be guaranteed at the time of the hearing on the merits, the temporary injunction was properly issued to maintain the status quo'. In addition, they argue that the necessity of a verified complaint is not a strict procedural requirement,

We find no merit in plaintiffs’ first contention that Orlikowski is not a proper party to move the court to dissolve the interlocutory injunction for the reason that the injunction was issued against the other defendants and not against the contractor. A defendant may move to dissolve an injunction if it injuriously affects his interests, although the order is not issued against him. (Hunt v. Pronger (1906), 126 Ill.App. 403, 407. Cf. Tri Square Realty Corp. v. Bressler (1958), 17 Ill.App.2d 336, 339.) In Orlikowski’s motion for damages, claiming the wrongful issuance of the interlocutory injunction, he has pleaded his inability to pay subcontractors for the work performed because of the plaintiffs’ withholding of the funds. The contractor was a party to the complaint and although not a party to the injunction order, his interests were clearly injuriously affected by it.

We next consider whether the complaint is legaHy sufficient to justify the interlocutory injunction. As a general proposition, a trial judge is clothed with discretion in rufing on the granting or denial of an interlocutory injunction; unless we find that he has abused the exercise of this discretion, the interlocutory order will not be set aside on appeal. (Schlicksup Drug Co. v. Schlicksup (1970), 129 Ill.App.2d 181, 186.) The complaint for a preliminary injunction, however, must specify all facts necessary to justify the unusual relief sought, and where the order is predicated on the fact of the complaint, the facts relied upon to warrant the injunctive relief must be alleged with certainty and precision. (Larkin v. Howlett (1974), 19 Ill.App.3d 343, 345.) The complaint must demonstrate through positive and precise allegations of fact that irreparable harm will result if the status quo is not maintained. (Knuppel v. Adams (1973), 12 Ill.App.3d 708, 711.) And when, as here, the preliminary injunction is of a mandatory nature in that it requires the defendant to perform some act rather than merely refraining from some objectionable conduct, these requirements are strictly enforced. National Bank v. River Forest State Bank (1971), 3 Ill.App.3d 209, 211.

In the complaint before us the factual allegations of a breach of contract on defendants’ part do not demonstrate the possibility of irreparable harm if the injunction is not issued and the insurance proceeds are transferred to the defendants. The plaintiffs argue that they have no information as to the financial condition of the defendants so that it would be a mistake for the money to be delivered to them. However, the defendants’ possible insolvency was not pleaded in the complaint, and there are no facts which indicate that the contractor’s solvency is questionable. In these circumstances the plaintiffs have an adequate remedy at law by seeldng damages in a breach of contract action. (Rao Electrical Equipment Co. v. Macdonald Engineering Co. (1970), 124 Ill.App.2d 158, 172-173.) We, therefore, conclude that the allegations of the complaint are insufficient to state a cause of action for the relief granted.

It is also an abuse of discretion to issue a preliminary injunction on an unverified complaint which is not supported by a verified petition or affidavit. Exchange National Bank v. Cullerton (1974), 17 Ill.App.3d 392, 394; Phelan v. Wright (1964), 54 Ill.App.2d 178, 181.

For the reasons stated the orders below granting the interlocutory injunction and denying the motion to dissolve the injunction are reversed.

Reversed.

T. MORAN, P. J., and RECHENMACHER, J., concur.


author:
Mr. JUSTICE KASSERMAN
      Mr. JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James M. Agans, Defendant-Appellant.
    (No. 12240;
    Fourth District
    November 27, 1974.

      CRAVEN, J., concurring in part and dissenting in part.
    John F. McNichols, of State Appellate Defenders Office, of Springfield, for appellant.
    C. Joseph Cavanagh, State’s Attorney, of Springfield (James W. Jerz and Martin P. Moltz, both of Model District State’s Attorneys Office, of counsel), for the People.
   Mr. JUSTICE KASSERMAN

delivered the opinion of tire court:

Defendant was convicted after a jury trial of tire offense of theft of property over $150 and was sentenced for an indeterminate term of imprisonment of not less than 2 nor more than 6 years, which sentence was to run consecutively to any time served by the defendant for violation of parole on a previous conviction for armed robbery.

The evidence introduced by the prosecution indicated that the defendant was a passenger in an automobile driven by his brother, Glen Agans, and that the car was stopped by a police officer for running a stop sign. Upon approaching the car, tire officer detected the odor of alcohol and observed the occupants “squirming around” in the car. The driver of the car stepped outside on the orders of the police officer who then observed a cash register on the floor at the passenger side of the automobile, where the defendant was sitting. The cash register was partially covered by a towel, and Glen Agans told the officers he didn’t know much about the cash register but that it was in the possession of the passenger. The defendant stated to the officer that the cash register came from a Red Bird gas station where he worked and that he was taking it home at the request of the manager who did not want to leave it there because of some recent break-ins at the service station. He further told the officer that a towel was placed over the cash register to protect it from getting scratched. The defendant and his brother were taken into custody, and subsequently the police officers were informed that the cash register had been stolen from a Sunoco station.

Glen Agans testified that he had previously entered a guilty plea and stated that he was driving the car, that he and the defendant had stopped at the Sunoco station twice during the evening of the theft, the first time to make a telephone call and the second time for the defendant and himself to buy candy and to use the bathroom. Glen Agans further testified that the defendant carried out the cash register and put it in the car the last time the two of them went to the Sunoco station.

Robert Pasenko testified for the defendant and stated that he was with the defendant and his brother from approximately 8:30 P.M. to about 3 A.M. on the night of the theft and that all of them were drinking beer and driving around in Glen Agans’ car. He further testified that they stopped sometime after midnight at the Sunoco station to call a girl friend and that subsequently they went to her house where the defendant was so drunk he could hardly walk. Finally, Pasenko testified that the defendant and his brother left and he stayed at his girl friend’s home.

The defendant testified substantially the same as Pasenko and further testified that he and his brother left Pasenko at his girl friend’s home because the two of them had gone out there on the mistaken belief that two other girls were visiting in the home. He stated that he was feeling so bad he got in the back seat of the car and laid down with a bottle to listen to the car radio. He further testified that he went to sleep or passed out; that he later awoke and moved to the front seat of the car and either passed out or went to sleep again; and that the next thing he remembers was his brother shaking him and red lights flashing. He testified that he then reached under the seat and got his towel out and tried to cover the cash register, but that he did not know how it happened to be in the car and that he had not removed it from the station.

The defendant further testified that at the time the police officers questioned him he made up the story about obtaining the cash register from the Red Bird service station. He admitted he had previously been arrested for armed robbery. He stated he was free from debt but that his brother owed $2000. He testified that he had made up the story about the cash register because he knew he would be considered an accomplice because he knew his brother had no reason for having a cash register.

The defendant raises three issues on appeal:

1. Whether he was proven guilty beyond a reasonable doubt of the offense of theft, since it was never sufficiently established that he, rather than his brother, took the property in question.
2. Whether the remarks of the prosecutor during his closing argument to the jury were so improper and prejudicial that they denied the defendant a fair trial.
3. Whether a consecutive term of imprisonment of not less than 2 nor more than 6 years for the offense of theft of property having a value exceeding $150 is excessive and should be reduced.

Defendant argues that there must be a reasonable doubt as to his guilt because the only evidence sufficient to convict him was the suspect testimony of his brother, who was an accomplice.

It is well settled that a conviction of theft can be sustained on circumstantial evidence alone if the character of said evidence convinces the trier of facts of the defendant’s guilt beyond a reasonable doubt. (People v. Stevenson, 107 Ill.App.2d 441, 246 N.E.2d 309; People v. Mills, 98 Ill.App.2d 248, 240 N.E.2d 302.) Further, in People v. Huff, 29 Ill.2d 315, 194 N.E.2d 230, it was held that although circumstantial evidence must not give rise to any reasonable hypothesis consistent with the innocence of the accused, this does not mean that the trier of fact must search out potential explanations compatible with innocence and elevate them to the status of reasonable doubt.

In the instant case, the evidence is strongly indicative of the fact that the defendant and his brother committed the theft. An employee of the gas station testified that he discovered the cash register was missing at about 4 A.M. on the night in question. The owner of the station later identified the cash register as being the same as the one recovered by the police officers from the car in which the defendant and his brother were riding, and he further identified the money and the receipts contained in tire cash register. When questioned by Officer Schultz when they were first stopped, Glen Agans stated that the cash register was in the possession of the defendant and that he saw his brother take the cash register from the Sunoco station and put it into the car he was driving.

The defendant informed Officer Schultz that the cash register belonged to a Red Bird station where he was employed. Defendant further told the officer that he placed the towel over the cash register to prevent it from being scratched. Defendant, in his brief, attempts to escape liability for the crime on the basis that it is possible that Glen Agans actually took the cash register.

We are of the opinion that there is sufficient evidence to sustain the conviction in this case. The record is barren of any evidence that Glen Agans took the register; however, had it been established that Glen Agans did take the cash register, the defendant is, nevertheless, guilty under the theory of accountability within the scope of section 5 — 2 of the Criminal Code (Ill. Rev. Stat. 1973, ch. 38, par. 5 — 2).

The defendant’s contention that the testimony of Glen Agans is suspect because he is an accomplice does not alter our opinion as to the sufficiency of evidence. The uncorroborated testimony of an alleged accomplice is sufficient to convict if it satisfies a jury beyond a reasonable doubt. (People v. Baker, 16 Ill.2d 364, 158 N.E.2d 1; People v. Field, 13 Ill.App.3d 74, 299 N.E.2d 754.) The jury in this case had ample reason to believe the testimony of Glen Agans. His testimony was consistent with the story given to the poHce, whereas defendant’s version varied substantially from the time of arrest to and including the time of the trial. Defendant’s testimony that he was taking the cash register home on behalf of his manager to protect it from possible theft varies widely from his courtroom testimony that he didn’t know how he came into possession of the cash register. Defendant contended that he was so drunk that he didn’t remember the events of the evening, but he was able to tell the officer apprehending them a very specific reason for his being in possession of the cash register, and which story he later repudiated.

Defendant contends the prosecution’s closing argument was prejudical and deprived him of a fair trial and cites the following statements made by the prosecutor:

1. “Glen Agans has already entered a guilty plea to the crime alleged in the indictment. This defendant for reasons known only to himself wanted a jury trial and wanted you to determine his guilt or innocence.
2. * * * they were in it together. They were brothers. They were drinking. They went to the service station once, once used the phone with Mr. Pasenko. They got the lay of the. land. They saw how difficult it was to look back in this bay and see out the door. Mr. Agans planned the crime, and then they came back with just the two of them. They got rid of Mr. Pasenko. Mr. James Agans came back and went in there and took the cash register.
3. First of all, where are these girls that Agans and Pasenko talk about? Oh, we were with all these girls, and we did this, and we did that, and we were drinking. Why don’t they come in here and testify.
All Mr. O’Keefe and Mr. Agans have to do is get a hold of them. If they don’t want to come, they can go over to the Court’s office and get a subpoena and have the Sheriff serve it on them and bring them in here and let them testify.
And I suggest that these girls are a figment of Mr. Agans’ imagination.”

It is apparently recognized by all parties concerned that it would have been preferable had the prosecutor not made the first of the foregoing statements in his closing argument; however, it must be noted that defense counsel made no objection to any of the prosecutor’s remarks nor did he raise any objection to such remarks in his motion for a new trial; consequently, if this court were to reverse conviction on this case based on such statements, it would be necessary to reverse them under the provisions of Supreme Court Rule 615.

We feel that the first of the foregoing statements does not constitute plain error, although it does raise the implication that everyone except the defendant realized that he was guilty.

The jury was amply instructed as to the law governing the trial that they were participating in, and it is difficult to believe that such a remark would in any way prejudice their consideration of the case. In the conduct of a spirited trial, the jury soon ascertains that a trial is an adversary proceeding, that the prosecutor and defense counsel are strenuously putting forth then- views as to the guilt and innocence of the accused and that statements of counsel are not evidence.

We are of the opinion that the second objection to prosecution’s argument is without foundation because in this part of the argument the prosecutor is merely presenting his theory of the case, and his theory of the case is sustained by the testimony of Glen Agans.

We are of the further opinion that the third objection to the closing argument of the prosecution is without foundation because it appears from the record that this statement was made in response to the closing argument of the defense counsel when he referred to the testimony of the defendant and Mr. Pasenko concerning the girls whom they testified were called and went over to see.

Finally, defendant contends his sentence was excessive and should be reduced. We find that this basis of appeal is without foundation. The defendant was at the time of trial on parole for a prior conviction of armed robbery, committed approximately 4 years prior to the present conviction. His conviction of the present crime constitutes a violation of parole for the offense of armed robbery. Defendant complains that the disparity in sentence between him and his brother was unwarranted by the facts; however, his brother’s conviction in this case does not constitute a parole violation and his only prior record was under the Juvenile Court Act.

Defendant also contends that the trial judge imposed an excessive sentence on the mistaken belief that defendant had shot someone. This contention is not borne out by the record. The trial judge did make reference to the defendant having shot someone while committing a prior crime; however, this belief was corrected immediately by both defense counsel and the prosecution.

Finally, defendant questions the propriety of imposing a consecutive sentence in this case. The imposition of consecutive sentences is governed by the provisions of section 5 — 8—4 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—4), which provides

“Concurrent and Consecutive Terms of Imprisonment,
* * #
(b) The court shall not impose a consecutive sentence unless, having regard to the nature and circumstances of the offense and the history and character of the defendant, it is of the opinion that such a term is required to protect the public from further criminal conduct by the defendant, the basis for which the court may set forth in the record.
# # #
(e) In determining the manner in which consecutive sentences of imprisonment, one or more of which is for a felony, will be served, the Department of Corrections shall treat the offender as though he had been committed for a single term with the following incidents:
(1) the maximum period of an indeterminate term of imprisonment shall consist of the aggregate of the imposed indeterminate terms plus the aggregate of the imposed determinate sentences for misdemeanors subject to paragraph (c) of this Section;
(2) the parole term shall consist of the parole term under Section 5 — 8—1 for the most serious of the offenses involved;
(3) the minimum period of imprisonment shall be one year or the aggregate of the minimum period of imprisonment imposed by the court, which ever is greater, subject to paragraph (c) of this Section; and
(4) the offender shall be awarded credit against the aggregate maximum term and the aggregate minimum term of imprisonment for all time served in an institution since the commission of the offense or offenses and as a consequence thereof.”

. Based on the evidence in this case we are of the opinion that the court was justified in imposing a consecutive sentence, having regard to the nature and circumstances of the offense and the history and character of the defendant. The defendant had previously been found guilty of committing the offense of armed robbery and was in this case found guilty of theft while on parole from the first conviction.

The question of computation of the term of imprisonment for the consecutive sentence given defendant in this case is governed by the provisions of section 5 — 8—4(e) of the Unified Code of Corrections set out in this opinion; therefore, this imposition of such sentence was permissible according to the statutes and was warranted by the evidence.

The opinion of the trial court is affirmed.

Affirmed.

SIMKINS, P. J., concurs.

Mr. JUSTICE CRAVEN

concurring in part and dissenting in part:

I agree with the majority opinion that this conviction should be affirmed. I am not in agreement that the sentence imposed should be consecutive. At the time of this conviction, the defendant was on parole for a prior conviction for armed robbery committed some 4 years prior to the present conviction. The offense here committed is a Class 3 felony, punishable by a minimum term of 1 year and a maximum term of 10 years, and the sentence alternatives available to the trial court for this offense were not utilized if, by reason of the defendant’s prior record, the trial court was under the impression that the defendant needed a longer period of incarceration. Consecutive sentences are not to be imposed unless the trial court, having regard to the nature and circumstances of the offense and the history and character of the defendant, is of the opinion that such term is required to protect the public from further criminal conduct by the defendant. In this case, since the trial court did not utilize either the highest possible minimum sentence, or the highest possible maximum sentence, the use of a consecutive sentence offends against the statutory proscription.

This seems to be rather clearly indicated by the foHowing coHoquy that took place at the conclusion of the hearing on aggravation:

“THE COURT: Was your previous trial a plea of guilty or was it a jury trial?
MR. AGANS: It was a plea of guilty.
THE COURT: You plead guilty to it?
MR. AGANS: Yes, sir.
THE COURT: Well, that’s an admission that you did it, or you wouldn’t have plead guilty.
I’d like to give you a break. I feel sorry for you.
MR. AGANS: I know it’s impossible now, sir.
THE COURT: I feel sorry for you. Now I’m going to give you a break. You have to go to the penitentiary.
MR. AGANS: Yes, sir.
THE COURT: But I’m going to give you a break. I’m going to sentence you to a minimum of two years and a maximum of five. And I think that’s a break.
I don’t know how you feel and the people back there feel, but I think that’s a break. There isn’t any doubt in my mind about it. Okay, that’ll be the sentence of the Court.
MR. KASTEN: Your Honor, will that run concurrently or consecutively with the sectence [sic].
THE COURT: No, it’s going to be consecutively with any sentence he’s got,
Let’s see, it’ll have to be — it’ll have to be two to six by our appellate rules, I think, that the minimum should be — they’re—they’re holding the minimum should be a third of the maximum.
MR. KASTEN: Right, three to one.”

In view of the foregoing, I dissent from that portion of the opinion approving consecutive sentence.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Franklin, Defendant-Appellant.
    (No. 59647;
    First District (5th Division)
    November 22, 1974.
    James J. Doherty, Public Defender, of Chicago (Harold A. Cowen and James M. Sammons, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Frank J. Parkerson, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    Oscar Paul Glover, Plaintiff-Appellant, v. Zoe Marie Glover, Defendant-Appellee.
    (No. 60129;
    First District (3rd Division)
    November 21, 1974.

      Rehearing denied December 19,1974.

      Weiner and Spak, of Chicago (Lawrence Jay Weiner and Joel S. Ostrow, of counsel), for appellant.
    Partee & Green, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Plaintiff, Oscar Paul Glover, appeals from an order of the circuit court of Cook County denying his second petition filed under section 72 of the Civil Practice Act to vacate a decree of divorce awarded to defendant/ counter-plaintiff, Zoe Marie Glover. Plaintiff also appeals from an order finding him guilty of contempt of court.

The parties were divorced pursuant to decree entered on May 24, 1971, upon defendant’s counter-complaint. The decree awarded custody of the children to defendant and required plaintiff to pay child support. No appeal was taken from that decree.

Approximately 1 year after the entry of the decree, plaintiff filed a petition under section 72 of the Civil Practice Act to vacate the decree of divorce. On May 31, 1972, the section 72 petition was denied, and no appeal was taken from that order. On May 29, 1973, plaintiff filed a second section 72 petition seeking a vacatur of the order of May 31, 1972, denying his first petition. On January 24, 1974, the court denied plaintiff’s second petition.

On February 28, 1974, the trial court entered an order requiring plaintiff to pay to defendant the sum of $2,525 for child-support payments then in arrears. The court also found him guilty of contempt for his failure to abide by the child-support provisions of the decree of divorce. The court sentenced plaintiff to jail until he paid said amount to defendant, but such sentence was not to exceed a period of 6 months.

This court subsequently stayed the enforcement of the trial court’s order of contempt on condition that plaintiff file an appeal bond in the amount of $2,525. A bond in that amount has been filed. Plaintiff has also filed a brief, a record and a designation of excerpts. Defendant has filed a motion to dismiss the appeals, and plaintiff has filed objections to that motion.

The decree of divorce entered on May 24, 1971, incorporated an agreement between the parties. Approximately 1 year later plaintiff filed a section 72 petition, which does not appear of record in the instant case. Defendant’s answer to that petition, however, is contained in the record. That answer asserted defendant’s marriage to plaintiff was valid because a prior marriage which she entered with one Charles Hayes had been annulled. The order, of May 31, 1972, denying the section 72 petition specifically recited that the marriage between plaintiff and defendant was validated by the annulment of defendant’s marriage to Challes Hayes. That order further recited that the trial court heard the testimony of the witnesses, the arguments of counsel and that it was fully advised in the premises. No appeal was taken from that order. The present record does not contain a report of the proceedings taken at that hearing.

The second section 72 petition, filed by plaintiff in 1973, set forth in detail the circumstances surrounding defendant’s marriage to Hayes, her marriage to plaintiff, the annulment of the Hayes’ marriage, and charged that defendant had secured the decree of annulment and the present decree of divorce by fraud and through concealment and misrepresentation. On January 24, 1974, that petition was denied. The order denying the petition recited that the court considered the pleadings, heard arguments of counsel and was advised in the premises. Again, the present record contains no report of proceedings taken at that hearing.

The order of contempt and commitment, entered February 28, 1974, likewise specifically recites that the trial court heard testimony of witnesses and argument of counsel, and that it was fully advised in the premises. The instant record contains no report of proceedings taken at that hearing.

Defendant’s position that the present appeals must be dismissed is correct. Plaintiff has failed to incorporate into the record the following necessary documents: a copy of the first section 72 petition, the report of proceedings taken at the hearings at which both petitions were denied, and the report of proceedings taken at the hearing resulting in the order of contempt and commitment. Plaintiff’s failure to include these matters in the record precludes the court from a proper consideration of the orders which he appeals. Furthermore, on the record as it stands, it appears that the grounds raised in the first section 72 petition seeking to vacate the decree of divorce were substantially the same as those offered in the second petition, thereby giving the trial court ample basis upon which to deny the latter petition.

It is incumbent upon the party appealing the judgment to bring up as much of the trial court record as is necessary to completely dispose of the issues presented on appeal. Where portions of the record are lacking, it will be presumed that the trial court acted properly in the entry of the challenged order and that such order is supported by that part of the record not before the reviewing court. (Perez v. Janota (1969), 107 Ill.App.2d 90, 246 N.E.2d 42.) This court has held that a dismissal of the appeal under similar circumstances is proper. Denenberg v. Prudence Mutual Casualty Co. (1970), 120 Ill.App.2d 68, 256 N.E.2d 71; Frederick Chusid & Co. v. Collins Tuttle & Co. (1973), 10 Ill.App. 3d 818, 295 N.E.2d 74.

Plaintiff counters by arguing that he may challenge the decree of divorce at any time and in any court because it is void, in that it was procured by fraud, concealment and misrepresentation. However, the order denying plaintiff’s first section 72 petition specifically recited that the underlying marriage between plaintiff and defendant was validated by the annulment of defendant’s prior marriage to Charles Hayes. Plaintiff’s failure to appeal the denial of that first petition bars any attempt to relitigate that issue. While a void judgment may be challenged at any time and ordinarily will not bar further proceedings in that same regard (see Lytton v. Cole (1964), 54 Ill.App.2d 161, 203 N.E.2d 590), the instant decree of divorce was not itself void. Plaintiff’s marriage to defendant was declared valid by the circuit court. Plaintiff neither tested the correctness of that determination by appeal nor has he provided this court with means by which to do so. Brown v. Schoenberg (1970), 121 Ill.App.2d 342, 257 N.E.2d 539.

As we have noted, plaintiff is also appealing from an order requiring him to pay defendant the amount of $2,525 for arrearages in child support payments. The court further sentenced plaintiff to jail until said sum was paid, but not to exceed 6 months. In this court, plaintiff has filed a surety bond in the amount of $2,525 undertaking along with the surety, to pay the defendant “any part of the Order which is not reversed * * One who executes an appeal bond securing payment of a judgment is thereby estopped from denying the validity of that judgment. The obligation under the bond becomes enforceable upon a dismissal of the appeal from the judgment upon non-jurisdictional grounds. See City of Chicago v. McGhee (1960), 26 Ill.App.2d 24, 167 N.E.2d 566; People ex rel. Empress Farms, Inc., v. United States Trotting Association (1973), 13 Ill.App.3d 327, 300 N.E.2d 18.

Therefore, the amount of $2,525 is directed to be turned over to defendant out of the proceeds of the bond. (Supreme Court Rule 366(a)(5), Ill. Rev. Stat. 1973, ch. 110A, par. 366(a)(5).) Upon payment of that amount to defendant, the judgment of the circuit court of Cook County finding plaintiff guilty of contempt and sentencing him to jail is vacated.

Accordingly, the appeals are dismissed.

Appeals dismissed.

DEMPSEY and MEJDA, JJ-, concur.


author: Mr. PRESIDING JUSTICE EGAN

text:
    Mary Anne Morrey, for the use of Albert H. Beaver, Plaintiff-Appellant, v. James Francis Morrey, Defendant-Appellee.
    (No. 59872;
    First District (1st Division)
    November 18, 1974.

      Roger D. Klaus, of Chicago, for appellant.
    Charles S. Simon, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

This is an appeal by Albert H. Beaver from an order enjoining him from attempting to enforce a decree for attorney’s fees which had been ordered to be paid by James Morrey, the defendant in a divorce action brought by Beaver on behalf of Mary Anne Morrey.

The complaint was heard as a default matter, and a decree for divorce entered in favor of the plaintiff on October 2, 1969. The decree provided for permanent alimony in the sum of $20 per week plus support for three minor children in the sum of $60 per week. Tire defendant was ordered to pay Beaver a sum of $800 over an installment period of 15 months.

Between December 30, 1969, and June 13, 1973, Beaver served four wage deduction summons upon the employer of the defendant. On January 13, 1970, Morrey filed a petition in bankruptcy, which resulted in tire discharge of his debts on March 19, 1970. In July, 1973, the defendant filed a petition to enjoin Beaver from further attempting to collect the fees and to quash the garnishment summons.

After a hearing on October 18, 1973, the court allowed the petition, holding that the judgment for fees was a debt which had been discharged in the bankruptcy proceedings.

Section 17 of the Bankruptcy Act (Tit. 11, U.S.C.A. § 35 (1953)) provides:

“A discharge in bankruptcy shall release a bankrupt from all his provable debts, whether allowable in full or in part, except such as # * * (2) by liabilities # * for alimony due or to become due, or for maintenance or support of wife or child # # *»

The question to be determined, tiren, is whether attorney’s fees may be considered a liability for alimony. Although this is a question of first impression in the Illinois state courts, a case strikingly similar on its facts is Merriman v. Hawbaker (E.D. Ill. 1934), 5 F.Supp. 432, 434. In holding that an allowance of attorney’s fees was a nondischargeable debt, the district court pointed out that the Divorce Act (Ill. Rev. Stat. 1933, ch. 40, par. 16) provides that upon failure to pay attorney’s fees awarded, the spouse may be declared in contempt of court and punished accordingly, or that the fees may be collected by way of execution and added:

“It is obvious, under the legal principles hereinbefore set forth and the statute quoted, that it was the intent of the Legislature that an order allowing to the plaintiff money for her solicitors’ fees should be treated in exactly the same manner, stand upon the same footing, and have actually the same legal characterization and qualities as an allowance for money to buy food or groceries. All legislation in this respect springs out of the universally recognized duty of a husband to support his wife. The allowance to her for solicitors’ fees is based upon the same underlying thought as is an allowance to her to buy food, shelter, and clothing. It is fixed within the discretion of the court. It is enforceable by contempt. * * It has obviously all the qualities of an allowance for support, commonly termed ‘alimony.’ A judgment for alimony being nondischargeable, it follows that an order to pay the wife her solicitors’ fees is likewise undischargeable. It may be provable [citation], but it has none of the qualities required to make it dischargeable. The present order partakes of the qualities of judgments for penalties or fines for support of a wife or children or bastard child all of which are enforceable by contempt proceeding.”

The Merriman case was cited and followed in Allison v. Allison (1962), 150 Colo. 377, 372 P.2d 946; Damon v. Damon (1st Cir. 1960), 283 F.2d 571; and Turman v. Turman (Okla. 1968), 438 P.2d 488. See also In re Brennen (E.D. N.Y. 1941), 39 F.Supp. 1022.

The defendant cites three California cases: Yarus v. Yarns (1960), 178 Cal.App.2d 190, 3 Cal. Rptr. 50; Smalley v. Smalley (1959), 176 Cal.App.2d 374, 1 Cal. Rptr. 440; and Tropp v. Tropp (1933), 129 Cal.App.62, 18 P.2d 385. In Yarus, the judgment provided that a sum was payable “solely by the way of property settlement, and not as payment of alimony or support and maintenance.” In Smalley, the wife waived all right to support and alimony and the husband agreed to pay the wife $3000 to equalize her interest in community property which was payable in $50 per month installments. In Tropp, the decree contained two parts; the first was a $250 per month payment for support until remarriage; the second was payment of $50,000 in 10 equal annual installments to continue even in the event of the wife’s remarriage. The court held that the second payment was a property settlement.

All three cases held that the portion of the decree sought to be enforced was a property settlement and not alimony and, as such, was dischargeable in bankruptcy. None of the cases involved attorney’s fees and none, in our view, is in point. We, therefore, accept the reasoning of the Meniman case and judge that attorney’s fees awarded in a divorce decree are in the nature of alimony and are not dischargeable in bankruptcy.

The defendant also contends that the cause of action for attorney’s fees has been merged with the judgment and thus has lost its “special nature” of nondischargeability, if it ever had such a special nature. The trial court apparently adopted this argument of the defendant as the basis for its ruling. The doctrine of merger has been described in ILP Judgments as follows:

“§ 292. ® ° 6 A claim or demand which is put in judicial controversy and passes to final judgment is merged or swallowed up in the judgment, and this rule applies to a final decree in a court of chancery. The merger of a cause of action with the judgment means nothing more than that the court has considered the plaintiffs claim and pronounced judgment which invests the plaintiff with the right to enforce it by judicial processes, the demand being the same demand which the plaintiff had before, but which has taken on new attributes and cannot henceforth be pleaded except in its new form. * * *
§ 293. * * * As a general rule, when a judgment is rendered on the debt, liability, or obligation of a person or corporation the liabilities are merged in the judgment and become a new obligation of record which differs in character, nature, and essence from the original obligation. * * *”

But the doctrine does not preclude all inquiry as to the character or nature of the original cause of action, or an ascertainment of whether or not the claim is really one of a nature such as the court is authorized to enforce; and when the essential rights of the parties are influenced by the original claim the court will look behind the judgment for the purpose of ascertaining what the original claim was. ILP Judgments §292, at 360 (1956).

The defendant’s argument has been advanced and rejected in other jurisdictions: Hylek v. Hylek (7th Cir. 1945), 148 F.2d 300, 302-303; Beneficial Loan Co. v. Noble (10th Cir. 1942), 129 F.2d 425, 427; In re Avery (6th Cir. 1940), 114 F.2d 768; Thomas v. Crosby (W.D. Mo. 1956), 146 F.Supp. 296, 299. All these cases have followed Pepper v. Litton, 308 U.S. 295, 305, 306, 84 L.Ed. 281, 288, 60 S.Ct. 238, 244, wherein the Supreme Court said:

“Hence, this Court has held that a bankruptcy court has full power to inquire into the validity of any claim L.Ed. 288 asserted against the estate. * * * And the mere fact that a claim has been reduced to judgment does not prevent such an inquiry. As the merger of a claim into a judgment does not change its nature so far as provability is concerned, [citation], so the court may look behind the judgment to determine the essential nature of the liability for purposes of proof and allowance. [Citation.]”

See also Brown v. Hannagan (1911), 210 Mass. 246, 96 N.E. 714; Gibson v. Green's Adm’r (1893), 89 Va. 524, 165 S.E. 661; Gilchrist v. Cotton (1925), 83 Ind. App. 415, 148 N.E. 435.

We judge, therefore, that the fact that the claim for attorney’s fees has been merged into a decree does not render it dischargeable in bankruptcy.

For these reasons, the judgment of the circuit court is reversed.

Judgment reversed.

GOLDBERG and HALLETT, JJ., concur.


author: Mr. JUSTICE GOLDBERG.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Johnny Grayle, Petitioner-Appellant.
    (No. 59805;
    First District (1st Division)
    November 18, 1974.

      Paul Bradley and Gordon H. Berry, both of State Appellate Defenders Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John F. Brennan, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE GOLDBERG.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Dayton Marshall, Defendant-Appellant.
    (No. 60379;
    First District (5th Division)
    November 22, 1974.
   PER CURIAM.

Katz, Hirsch & Wise, Ltd., of Chicago (Allan A. Ackerman, of counsel), for appellant.

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