author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Perry Newton, Defendant-Appellant.
    (No. 58620;
    First District (4th Division)
    February 27, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Kenneth L. Jones, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

This is an appeal from an order of the trial court revoking defendant’s probation.

The defendant, Perry Newton, and one Donald Jennings, were originally charged by indictment with two counts of attempted murder and two counts of armed robbery. The Public Defender was appointed to represent the defendant and a plea of guilty was entered. At the hearing on his guilty plea, it was stipulated that the defendant, who was carrying a rifle, and two other men committed an armed robbery. During a subsequent chase the occupants of the fleeing car shot at the police eight to twelve times. They abandoned the car, hid in a field, and were later captured and taken into custody. In granting the defendant a 5-year probation sentence on June 19, 1970, the court was impressed with defendant’s scholastic background and the fact that the defendant had been cooperating with law enforcement agencies. He was 18 years old and had never been convicted of a felony. The order granting probation entered by the judge included the special condition that the defendant re-enter and finish high school and thereafter either continue his education or become regularly and gainfully employed.

About 1 year later a warrant was issued for defendant’s arrest for violation of probation and a rule to show cause why his probation should not be terminated was entered. The report of the probation officer recited that in June 1971, a warrant was issued for defendant’s arrest when he failed to appear in court to answer to the charge of violation of the Narcotic Drug Act (Ill. Rev. Stat. 1969, ch. 38, par. 22—3). The report also indicated that the defendant was scheduled to appear in court on November 24, 1971, on charges of armed robbery and escape. In regard to the latter charges, it appeared that on January 15, 1971, the defendant and another unknown person committed an armed robbery at the Robo Car Wash. The defendant was positively identified by the complainants. It further appeared that on January 19, 1971, while in the custody of the Harvey Police Department in their lock-up, the defendant and another prisoner walked out of the cell and left the premises.

In a subsequent supplementary report, the probation officer reported that it appeared that on December 25, 1971, the defendant and three others robbed several patrons and employees at Gino’s Steak House. When the general manager attempted to open the door to the office, after being demanded to open the safe, he was struck on the head with a sawed-off shotgun. The defendant leveled his shotgun at a security agent who walked in and was shot in the face by the police. All the robbers were armed.

A hearing was held on the rule to show cause why the probation should not be revoked. According to the evidence presented by the State, the defendant had failed to appear on scheduled court dates, had not reported to his probation officer, had failed to either stay in school or become gainfully employed, and had admittedly carried a single-barreled shot gun and a .25 caliber pistol during a holdup that took place at Gino’s Steak House on December 25, 1971, all in violation of the terms of his probation.

In his own behalf the defendant testified that after being put on probation he was in school until December 1970. He did not attend school or work during 1971 because he was in jail for all but 3 months during that year, having been arrested at four different times in connection with three separate and unrelated incidents. He further testified that on the occasion of the December 25 holdup he had been working as a police informant and had told the police that the robbery was going to take place. Nick Graves, a policeman, told him “to go there with them.” Nick Graves was also one of the victims of the attempted murder charge to which the defendant had originally plead guilty and for which he was placed on probation. When the police came to the scene, the defendant ran through the steak house and was shot in the face and charges of robbery were lodged against him. Because of his wound he spent the next few weeks in the hospital and was unable to appear at a scheduled court date on December 30, 1971, relating to the revocation of his probation.

At the conclusion of the evidence the trial judge made the following findings of fact:

“Based upon the evidence that has been presented to this Court in all of the hearings previously referred to and from the record that has been before this Court since the rule was filed on November 19, 1972, the Court hereby finds that the defendant failed to report to the Probation Department, as required by order of Court, after December 1970; second, that the Court hereby finds that he failed to comply with the condition of probation that he either continue in school or be regularly and gainfully employed while on probation; and, thirdly, that he failed to appear as ordered by the Court before this Court on December 30, 1971; fourthly, that on December 25, 1971, the defendant has [sic] in his possession, while under order of this Court to appear before this Court on December 30, 1971, a single-barrel shotgun and a .25 caliber pistol, and that his failure to report before this Court on December 30, 1971, was as a result of his own conduct."

The defendant first contends that the trial court erred in finding that he was in violation of his probation with regard to the armed robbery that occurred on December 25, 1970, because he raised the defense of entrapment to that incident and the State did not rebut that defense. It is argued that the defendant’s mere presence at the scene of a crime with weapons is not sufficient to classify him as an accomplice to that crime when he is acting in the capacity of a police informer.

The defendant never testified, however, that the police told him to be armed. The undisputed evidence is that the defendant was carrying a shotgun and a pistol at the time he claimed he was performing this undercover mission. He offered no explanation of why he carried the weapons. Even if his provocative story about being told by policeman Graves to go along with the robbers to the scene of the crime had some truth in it (and it seems the trial judge was not so convinced), his unlawful carrying of these deadly weapons would alone constitute a plain violation of probation. It is inherent in any probation that the defendant not violate any penal statute and here the defendant was found to have been in unlawful possession of firearms. See People v. Morales, 2 Ill.App.3d 358, 276 N.E.2d 391.

Furthermore the evidence overwhelmingly showed that in addition to the aforementioned incident, the defendant was charged with’ other criminal offenses while on probation and was in violation of court orders that were entered when the trial judge granted him probation; There was more than sufficient proof presented to show that the defendant had deliberately violated the trust that a most lenient judge had placed in him. The revocation of probation -is an act within the sound discretion of the trial court and unless that discretion has been abused we will not disturb the order. (People v. Sims, 32 Ill.2d 591, 208 N.E.2d 569.) There was clearly no such abuse here. In view of this, we do not feel compelled to consider at any length the contention that the court abused its discretion in finding that the defendant violated his probation, inter alia, by not reporting to the probation department and by not working or attending school during a period when he was in jail for all but 3 months.

It is next contended that the provision of the Juvenile Court Act dealing with the age of a juvenile offender, in force at the time of defendant’s conviction, was unconstitutional. The record shows that defendant was 17 years old at the time of the commission of the original armed robbery for which he was put on probation. Illinois Revised Statutes 1969, ch. 37, par. 702—2, classified a delinquent minor as a male under the age of 17 years or a female under the age of 18 years who violated a law or ordinance. It is argued that by virtue of this classification -the protections of the Juvenile Court Act were afforded to 17 year old females, but not to 17 year old males, and that this constituted a denial of equal protection guaranteed by the fourteenth amendment to the United States Constitution and article I, section 2, and article I, section 18 of the Illinois State Constitution.

The briefs in this case were written before the Illinois Supreme Court’s recent decision in People v. McCalvin, 55 Ill.2d 161, 302 N.E.2d 342. There the court reaffirmed People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656, appeal dismissed for want of substantial federal question, 402 U.S. 992, where it was held that the age classification in article 2 of the Juvenile Court Act did not violate the equal protection clause. McCalvin is dispositive of the issue raised here and further elaboration is unnecessary.

It is also contended that the consecutive sentences of 5 to 10 years and 5 to 15 years in the penitentiary are unduly excessive because the violations upon which probation was revoked were insufficient to warrant such sentences. It is emphasized that defendant was 17 years old at the time he committed the original offense and had never before been convicted of a felony, and that the lengthy minimum sentence will aggravate the possibility of his rehabilitation.

It is fundamental that when revoking probation, the trial judge may sentence the defendant to any term to which the defendant might have been sentenced at the conclusion of the original trial. (Ill. Rev. Stat. 1969, ch. 38, par. 117—3(d); 1972 Supp., ch. 38, par. 1005—6—4(e).) We recognize also, however, that punishment for any offense raised in the probation revocation hearing should be imposed after conviction on that charge and not by indirection in the sentence imposed for tire original charge after violation of probation is determined. (See People v. Lillie, 79 Ill.App.2d 174, 223 N.E.2d 716.) Provocation engendered by defendant’s violation of the terms of his probation is not appropriate reason for increasing the severity of his sentence. People v. McCall, 7 Ill.App.3d 135, 287 N.E.2d 45.

In view of the gravity of the offenses for which defendant was originally placed on probation, we do not feel that the trial judge acted arbitrarily in setting the maximum and minimum limits on either sentence. Both are within the prescribed statutory limitations. We will, however, modify the sentences by making them run concurrently rather than consecutively. Ill. Rev. Stat. 1971, ch. 110A, par. 615(b).

We finaUy note that the defendant filed a motion in this court on November 14, 1973, in which he seeks credit for the time he served on probation in accordance with § 5—6—4 of the new Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—6—4). Subsection (h) of that section provides:

“Resentencing after revocation of probation or of conditional discharge shall be under Article 4. Time served on probation or conditional discharge shall be credited against a sentence of imprisonment or periodic imprisonment.” (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—6—4(h).)

The Unified Code became effective on January 1, 1973, and it applies to the instant case since there has not yet been a final adjudication. (People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269.) Accordingly the defendant is entitled to credit on his sentences for the time he was on probation— computed from the date he was placed on probation to the date that a bench warrant issued for his arrest. Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—6—4; People v. Burton, 14 Ill.App.3d 1096, 303 N.E.2d 16.

For the reasons stated the revocation of probation is affirmed, and the cause is remanded with directions to modify the sentences and to issue an amended mittimus reflecting credit for the time served on probation.

Judgment affirmed, sentence modified, remanded with directions.

ADESKO, P. J., and JOHNSON, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Hampton, Defendant-Appellant.
    (No. 58751;
    First District (4th Division)
    February 27, 1974.
    Paul Bradley, Deputy Defender, of Chicago (Steven Clark, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURMAN

delivered the opinion of the court:

The defendant, John Hampton, was convicted of the offense of robbery after a bench trial on May 10, 1966, and sentenced to a term of not less than eleven nor more than fifteen years in the Illinois State Penitentiary. His conviction was affirmed by this court on direct appeal in People v. Hampton, 103 Ill.App.2d 57, 243 N.E.2d 371 (1968). The facts are contained therein and it is unnecessary to reiterate them here.

On April 15, 1972, the defendant filed a post-conviction petition in which he alleged that the arresting poHce officer perjured himself at trial when he testified that the defendant suffered no forcible injuries during the arrest. The State’s motion to dismiss the petition was sustained without an evidentiary hearing.

On appeal from the- dismissal of the post-conviction petition the defendant contends that the alleged knowing use of perjured testimony given by the poHce officer at trial requires an evidentiary hearing and that the cause should be remanded for that purpose. We have carefully examined the record and find that all the facts concerning the issue raised in the petition were available to the defendant and his attorney at trial. He cannot now complain of any alleged perjury which could have been proved at trial. People v. Orndoff, 39 Ill.2d 96, 233 N.E.2d 378.

We therefore affirm the dismissal of the post-conviction petition.

Judgment affirmed.

DIERINGER and JOHNSON, JJ., concur.


author: Mr. JUSTICE JOHNSON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George L. Arroyo, Defendant-Appellant.
    (No. 58823;
    First District (4th Division)
    February 27, 1974.
    James J. Doherty, Public Defender, of Chicago (Thomas F. Finegan, Assistant Public Defender, of counsel), for appellant.

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

delivered the opinion of the court:

The defendant, George L. Arroyo, was charged with the offense of theft in Complaint No. 72 MCI J864223. He waived a jury trial and entered a plea of not guilty. On October 25, 1972, the defendant was found guilty of theft and sentenced to 9 months at the Illinois State Farm in Vandalia. The sole issue presented on appeal is whether the complaining witness’ identification of the defendant was sufficient to establish his guilt beyond a reasonable doubt.

The complaining witness, Miriam Voyles, was the owner of a grocery store located at 1565 North Rockwell Street in Chicago. She testified at the trial that on June 20, 1972, at about 4:30 P.M., she was standing behind the counter when a man, later identified as the co-defendant, Rogillio Olaguno, entered. As Olagtino was making his purchase, another man came in and placed a knife against her throat. Mrs. Voyles testified that she stood face to face with him at a distance of 3 or 4 feet for about 5 to 6 minutes. The man removed approximately $70 from the cash register. After he left, she called the police and gave a description of the two men. At trial, Mrs. Voyles asserted that she was positive that Arroyo was the man who had taken her money. However, the only distinguishing features of the defendant that she could recall was that he had black hair, a goatee, and wore glasses.

Officer Moreth of the Chicago Police Department was assigned to investigate the incident. The officer testified that thereafter he went to Mr. Olaguno’s house and observed the defendant. Moreth testified that Arroyo resembled the description given by Mrs. Voyles except that he did not have a goatee. The defendant and Olaguno were placed under arrest. Arroyo made certain statements to Moreth which were suppressed at trial.

Arroyo interposed an alibi defense by testifying that on June 20, 1972, he was at the hospital visiting his son. He claimed to have arrived at the hospital about 1:30 P.M. and remained there until 4:30 P.M. According to Arroyo, he was with his father and sister between 4:30 P.M. and 6:30 P.M. The defendant further testified that he did not have a goatee on June 20, 1972, but that he did have a mustache on that date. No other witnesses were called by the defense.

The defendant contends that his conviction should be reversed because it was based upon identification which was doubtful, vague and uncertain. He argues that the witness’ identification is doubtful because she described him to police officers as having a goatee at the time of the occurrence while Arroyo claimed that he had a mustache but no goatee on that date. The arresting officers testimony was that Arroyo was clean-shaven at the time of the arrest.

It is well settled in Illinois that the testimony of a single witness, if it is positive and the witness is credible, is sufficient for a conviction even though the testimony is contradicted by the accused. People v. Robinson (1972), 3 Ill.App.3d 858, 862, 279 N.E.2d 515, 518; People v. Murdock (1972), 3 Ill.App.3d 746, 751, 279 N.E.2d 159, 163; People v. Watkins (1970), 46 Ill.2d 273, 281, 263 N.E.2d 115, 120.

Here, thé record reveals that Mrs. Voyles positively identified the defendant, George Arroyo, as her assailant. The witness had an adequate opportunity to observé the defendant while standing face to face with him at a distance of 3 or 4 feet for several minutes.

Defendant argues that Mrs. Voyles’ failure to include a mustache in her description of the assailant to the police renders her identification doubtful. However, the failure of a witness to report the presence or absence of a mustache, or other facial features, has been held to be solely a question of the weight to be afforded the identification. People v. Camp (1972), 9 Ill.App.3d 445, 446, 292 N.E.2d 242, 243. See also People v. Catlett (1971), 48 Ill.2d 56, 268 N.E.2d 378; People v. Mitchell (1971), 2 Ill.App.3d 1081, 278 N.E.2d 169.

In criminal cases where a jury is waived, the credibility of the witnesses and the weight to be accorded their testimony are matters to be determined by the trial judge. He had a superior opportunity to hear the testimony of the witnesses and to observe their demeanor on the stand. The judgment of the trial judge will not be disturbed upon review unless the evidence is so improbable or unreasonable as to create a reasonable doubt of defendant’s guilt. People v. Holt (1970), 124 Ill.App.2d 198, 201, 260 N.E.2d 291, 293.

After reviewing the record, we are satisfied that the trial court’s finding of guilty is supported by the evidence beyond a reasonable doubt. Therefore, the judgment of the circuit court is affirmed.

Affirmed.

DIERINGER and BURMAN, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Cook, Defendant-Appellant.
    (No. 56169;
    First District (3rd Division)
    February 28, 1974.
    Wendell P. Marbly, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendants, James Cook and John Cook, were indicted for armed robbery. After a joint bench trial in the circuit court of Cook County defendants were found guilty as charged. James Cook was sentenced to 3 to 6 years in the penitentiary; John Cook was sentenced to 2 to 5 years. Both defendants have perfected appeals to this court. Because John Cook has died during the pendency of this appeal, his appeal has abated. (O’Sullivan v. People, 144 Ill. 604, 32 N.E. 192.) Therefore, on the instant record we are concerned only with the appeal of James Cook.

James Cook presents one issue for review. He contends that he was not proved guilty of the offense of armed robbery.

We affirm.

The armed robbery took place in the early morning hours of October 2, 1968, at the Cameo Lounge located at 3655 North Western Avenue in Chicago. At approximately 1:20 A.M. that morning two men entered the lounge. After ten minutes of sitting at the bar, drinking alcoholic beverages and talking to the bartender, they embarked on the robbery of the patrons and the premises. In addition to the defendants and the bartender, Victor Fiumetto, six people were present in the lounge; Mrs. Baker, Mrs. Courtney, Mr. Mayback, Mr. Finch, Mr. Bosshart and Mr. Meyer.

There is no dispute over the occurrence of the crime itself. Victor Fiumetto, the bartender, testified to the sequence of events. One of the men who had been sitting at the bar, identified as James Cook, went into the mens washroom. While he was serving a drink to one of the ladies, Mr. Fiumetto noticed that the other man, identified as John Cook, had gone to the door. John Cook turned around and with a gun in his hand he announced, “This is a stickup”. Then Mr. Fiumetto saw James Cook coming out of the washroom.

John Cook jumped over the bar and backed Mr. Fiumetto towards the cash register. With James Cook holding the patrons at gun point, John Cook took $30-$35 from the cash register. John Cook then took the two ladies and Mr. Fiumetto into the women’s washroom. In the mirror of the washroom Mr. Fiumetto observed John Cook searching the two ladies.

At some time during the search of the two women, James Cook placed the four men in the men’s washroom. After the search of the women, John Cook took the two women and Mr. Fiumetto into the men’s washroom where they joined the four men. Mr. Fiumetto was struck on the head as he entered the washroom. He observed blood on Mr. Bosshart’s head.

Shortly thereafter, the defendants showed Mr. Fiumetto a cigar box containing money which they had found behind the bar. They both pointed guns at Mr. Fiumetto’s head and stated, “Where is the rest of it?” Defendants made a further search of the tavern.

During the course of the armed robbery, Joseph DiVita entered the tavern, was robbed, and placed into the men’s washroom with the other people. He was also hit on the head. While the victims were in the men’s washroom, one defendant or the other would enter the washroom, threaten, and strike the male victims with a gun. The women were not injured.

The defendants told the victims not to leave the men’s room. After hearing no noise for a while, the victims felt reasonably assured that the robbers had left. They called the police. Officer Malecke of the Chicago Police Department was the first policeman to arrive at the scene. He talked to the victims and obtained a description of the armed robbers. Mr. Fiumetto pointed out to the evidence technician who arrived at the scene the items on the bar which the robbers might have touched. A beer glass with a latent fingerprint was recovered. The print obtained did not match those of either defendant or the bartender, Mr. Fiumetto.

Two days after the occurrence defendants were arrested at their home. Later that same day they participated in a lineup. Mr. Fiumetto, Mr. DiVita, and Mr. Meyer identified the defendants. Mr. Mayback identified one of the defendants.

Defendants did not testify at trial. An alibi was presented. Mrs. Lucille Cook, defendants’ mother, testified that they were at home the night in question. Ray Cook, the defendants’ brother, testified to the same effect.

In the instant appeal defendant James Cook contends that he was not proven guilty beyond a reasonable doubt in spite of the positive identifications made by the victims, of the armed robbery. We do not agree.

The record shows that three witnesses, Mr. Fiumetto, Mr. DiVita, and Mr. Meyer, positively identified both defendants in court arid were able to distinguish between them, although they were identical twins. A fourth witness, Mr. Mayback, identified only James Cook. A positive identification by one credible witness is sufficient to sustain a conviction. (People v. Soldat, 32 Ill.2d 478, 207 N.E.2d 449.) In the instant case four witnesses made positive identifications at trial. In addition, Fiumetto, DiVita, and Meyer identified both defendants at a lineup which was held 2 days after the robbery. Mayback identified only James Cook at the lineup.

The record shows that each identifying witness had ample opportunity to observe the defendants during the course of the crime. The lighting in the bar, although dim, was good. The lighting in the men’s washroom was brighter. During the course of the robbery, which lasted about 40 minutes, the identifying witnesses had many opportunities to observe the defendants.

The description of the physical characteristics and dress of the defendants, which were given by the prosecution witnesses, were certain and reasonably detailed. However, James Cook points out inconsistencies in the testimony of these witnesses and argues that they necessitate reversal.

He first points out that none of the witnesses at trial described the defendants as having mustaches on the night in question. He argues that an examination of the photograph of the lineup, which was part of the record, shows that defendants had mustaches 2 days after the robbery, and that this omission greatly weakens the identification testimony. An examination of the photograph of tire lineup reveals that defendants did have mustaches but that they were not very prominent. Furthermore, Officer Malecke, who took a description of the offenders at the scene, testified that his report showed that one of the men was described as having a mustache.

Defendant next points to testimony concerning the defendants’ hair styles on the night in question. The report of Officer Malecke stated that the two offenders had processed hair. The photograph of the lineup shows that the defendants did not at that time have what is commonly known as a “process”. Lucille Oliver, a beautician, testified for the defense that if defendants had processed hair on the night in question, it would have taken at least a month to get the process out. Officer Malecke explained his use of the word “process” in the report. He stated that he concluded that the offenders had processed hair after listening to the victims’ descriptions. At trial witnesses described one of the offender’s hair as “slick”, “black and shiny”, “unruly”, “laquered down and very straight”, and “slicked down with a lot of grease”. None of the prosecution’s witnesses testified that he or she used the word “process” to describe the hair style. Officer Casey, of the Chicago Police Department, testified for the defense that on the morning of the arrest defendants’ hair was substantially the same as it was at trial. He testified that they did not have processed hair.

Defendant further maintains that the failure of any of the victims to characterize defendants as identical twins casts doubt on their identifications. The record shows that although the defendants were identical twins, the witnesses were able to point out distinguishing characteristics. There was testimony that James Cook had a tooth missing in the front of his mouth. In addition, witnesses testified that on the night of the occurrence the hair of one defendant was “shinier” than the hair of the other. The manner in which the robbery was executed did not present the victims with many opportunities to view the defendants together. Nevertheless, both defendants were generally described as being the same age, height, weight and build. Differences in hair style and dress were noticed. As pictured in the lineup the defendants may have looked more like identical twins than they did on the night in question.

Where there has been a positive identification, precise accuracy in describing facial characteristics is unnecessary. (People v. Miller, 30 Ill.2d 110, 195 N.E.2d 694.) In the instant case, where four positive identifications were made and the witnesses substantially corroborated each other, we consider the discrepancies in the testimony minor and insufficient to raise a reasonable doubt as to defendant’s guilt. (People v. Williams, 28 Ill.2d 53, 190 N.E.2d 796.) Over the positive identifications of four witnesses, the court, as trier of fact, was not obliged to believe the alibi evidence presented by defendant’s relatives and obviously did not. (People v. Taylor, 8 Ill.App.3d 727, 290 N.E.2d 342.) Cases, cited by the defendant reversing convictions based on insufficient identifications, are inapposite.

In addition, the fact that fingerprints taken from the glass that defendants allegedly handled did not match defendant’s fingerprints does not alter our conclusion in view of the other evidence of defendant’s guilt.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

McNAMARA, P. J., and DEMPSEY, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John Warren, Defendant-Appellant.
    (No. 59037;
    First District (3rd Division)
    February 28, 1974.

      McNAMARA, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Marilyn Dershem Israel, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and William K. Hedrick, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jon D. Sieg, Defendant-Appellant.
    (No. 59207;
    First District (3rd Division)
    February 28, 1974.
    MEJDA, J., took no part.
    Adam D. Bourgeois and Howard T. Savage, both of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Respondent-Appellee, v. Nathaniel Daniels, Petitioner-Appellant.
    (No. 59258;
    First District (3rd Division)
    February 28, 1974.
    McNAMARA, J., took no part.
    Paul Bradley, Deputy Defender, of Chicago (Howard B. Augustus, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and John M. Cutrone, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Amos Jones, Defendant-Appellant.
    (No. 58945;
    First District (5th
    March 1, 1974.
    Paul Bradley, Deputy Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (John F. Brennan, Kenneth L. Gillis, and Sharon Hope Grossman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant was found guilty after a bench trial of the offense of armed robbery, in violation of section 18—2 of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 18—2) and was sentenced to a term of two to three years. He appeals arguing that the evidence is insufficient to establish his guilt beyond a reasonable doubt and that he was denied a fair trial when the trial judge improperly based his finding of guilty upon testimony which was not admitted into evidence at the trial.

Samuel Lipscomb testified for the State: On January 25, 1969, shortly after midnight, he was in the Kerfoot Liquor & Food Store located at 8462 South Vincennes, Chicago, Illinois. The owner, William Tillman, was behind the counter when, at approximately 12:30 A.M., the defendant came into the store with a second man. Both men had guns and announced a holdup. Shortly thereafter, a third man, also armed, came in. Defendant had been in the store approximately 20 minutes earlier that same evening. The men forced Lipscomb to give them his wallet and then ordered him to lie down on the floor. Defendant held a gun up to Tillmans head and told him to give them the rest of the money or he would kill him. Tillman complied. The witness described defendant’s hair. It was odd looking, it appeared to be pressed, as if he were wearing a wig. Lipscomb further testified that as the men left they hollered “Blackstone Rangers”. The entire robbery took approximately 20 minutes.

William Tillman testified for the State. He is the owner of the Kerfoot Liquor & Grocery Store and that on January 25, 1969, at approximately 12:30 A.M., he was present in his store with Sam Lipscomb when the defendant and two other men entered carrying guns and announced a robbery, taking approximately $700. The defendant whose hair appeared to be pressed or straightened down as if he were wearing a wig was the first man to enter the store. The lighting in the store was very bright. The entire robbery took approximately 20 minutes. The next time Tillman saw the defendant was several months later in a courtroom. In referring to the defendant Tillman stated, “You can never forget his face.”

Amos Jones, defendant, testified for himself, that on January 25, 1969, he picked up his wife Jessie Mae Jones at the Sara Lee plant, Deerfield, when she got off work at 12:00 midnight. He then proceeded to his sister’s house at 827 E. Bowens, Chicago, to pick up their kids, arriving there at approximately 1:00 A.M. Defendant’s wife corroborated his testimony.

Defendant’s first contention on appeal is that the evidence was insufficient to establish his guilt beyond a reasonable doubt because the identification testimony was vague and uncertain. In a bench trial, credibility of witnesses is for the trial judge to determine. (People v. Wright, 3 Ill.App.3d 262, 278 N.E.2d 175.) The decision of the trial judge as to credibility of witnesses will not be disturbed unless it is based upon evidence which is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378.) The testimony of one witness, if positive and credible, is sufficient to sustain a conviction even though contradicted by the accused. People v. Bonds, 132 Ill.App.2d 827, 270 N.E.2d 575,

In the case at bar, the testimony of Lipscomb and Tillman was positive and credible. They both testified that they observed the defendant in a well-lighted store during the robbery which took approximately 20 minutes. Minor discrepancies in the testimony of witnesses affect only the credibility of witnesses, which is a matter for the trier of fact to determine. (People v. Thomas, 127 Ill.App.2d 444, 262 N.E.2d 495.) The trial judge, after hearing all the evidence, determined that the two State’s witnesses had sufficient time under adequate lighting to fix defendant’s identity. After a complete review of the record before us, we cannot say that the trial court’s determination was erroneous. The State’s evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt.

In this regard defendant also argues that his unrebutted alibi defense raises a reasonable doubt as to his guüt. A trial judge is not obliged to believe a defendant’s alibi testimony. (People v. Jackson, 54 Ill.2d 143, 295 N.E.2d 462.) Here, the trial judge, after hearing all of the evidence, determined that the defendant was the perpetrator of the crime charged and we cannot say that defendant’s alibi testimony raised a reasonable doubt as to his guilt.

Defendant’s second contention on appeal is that he was denied a fair trial when the trial judge improperly based his finding of guilt upon testimony which was not in evidence at the trial. At a pre-trial hearing on a motion to suppress, several police officers testified that a co-felon, Thomas Woods, had been arrested and had implicated the defendant in the robbery of the Kerfoot Liquor Store. At trial no such evidence was adduced and Woods did not testify. In summarizing the evidence, the trial judge made the following statement:

"And there can be no question about the fact that one of the robbers, Mr. Woods, started to jabber and in jabbering mentions the name of Amos Jones. Now, the jabbering of Mr. Woods gave a number of names. One of the names was Amos Jones. That in itself certainly would not be sufficient to find any kind of defendant guilty. The defendant is presumed to be innocent.”

The trial judge then went on to summarize the evidence adduced at trial, including the testimony of the two eyewitnesses. The trial judge tiren said:

“I find that I am satisfied with these two State’s witnesses, corroborating the testimony of each other and the statements made by Mr. Woods, apparently all add up to satisfy the court beyond a reasonable doubt, and therefore the defendant is found guilty as charged in the indictment and a judgment will be entered on the verdict.”

Defendant now argues that the above statement by the trial judge indicates that he improperly considered the statements made by defendant’s co-felon, Woods, in finding defendant guilty when such statements made at a hearing on a pre-trial motion to dismiss were not admitted at trial. A trial judge, sitting as trier of fact, is not entitled to base his conclusions regarding a defendant’s guilt or innocence or otherwise consider matters not in evidence. (People v. Vine, 7 Ill.App.3d 515, 288 N.E.2d 69.) In the instant case, the trial judge’s comments clearly indicate that he considered Wood’s statements in making his decision that defendant was guilty. These statements, however, were not in evidence at the trial. This conduct was error.

Therefore, defendant’s conviction must be reversed and remanded for a new trial.

Reversed and remanded.

SULLIVAN, P. J., and DRUCKER, J., concur.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    Dorothy A. Atwater, Plaintiff-Appellant, Cross-Appellee, v. A. G. Atwater, Defendant-Appellee, Cross-Appellant.
    (No. 57668;
    First District (5th Division)
    March 1, 1974.

      Edward D. Rosenberg, of Rosenberg & Kosin, of Chicago (Ellis B. Rosenzweig, of counsel), for appellant.
    Richard A. Makarski, of Chicago (Chapman and Cutler, of counsel), for appellee.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

This is an appeal by plaintiff from the court’s denial of her claim for interest on the unpaid installments of a property settlement agreement incorporated into a decree of divorce. Defendant cross-appealed from the judgment entered against him for $78,000, the past due property settlement payments.

On October 8, 1957, a decree of divorce was entered which included an agreement for payment of a lump sum settlement in lieu of alimony of $127,500, $49,500 of which was paid to plaintiff. The issues herein relate to the balance provided for in section 2(c) and 3 of that agreement. The payments under those provisions were to begin four years from the date of the decree and were to be defeasible only upon the death or remarriage of the plaintiff prior to the time the monthly installments were to become “due and owing”. Defendant stipulates that with the exception of one installment, no payments were made pursuant to this portion of the agreement.

In 1957, plaintiff met Alfred B. Mattson, and in August of 1958 she and Mattson traveled to Las Vegas, Nevada. There they applied for a marriage license, which was issued on August 11, 1958. Both plaintiff and Mattson testified, however, that no marriage was ever entered into. In support of this contention, plaintiff introduced affidavits from the recorder of Clark County, Nevada, which indicated that from 1956 to 1961 no marriage record existed for Alfred Mattson or Dorothy Atwater. Additionally, plaintiff introduced a completed marriage certificate which Mattson testified was a blank form and in which he inserted the fictitious names of a justice of the peace and two witnesses and the date of August 10, 1958. An additional affidavit from the county clerk of Clark County was offered at trial, wherein it was stated that in the year 1958 there was no justice of the peace in Clark County having the same name as that appearing in the Mattson’s marriage certificate. All three documents were received in evidence.

After Mattson and plaintiff returned to Chicago they resided together and, between 1958 and 1971, held themselves out to be husband and wife. The most significant occurrence of this period took place in September of 1961, when plaintiff requested and had a meeting with defendant. At the meeting, plaintiff informed defendant that she had not mar-, ried Mattson but was only living with him and, for that reason, payments under section 2(c) of the settlement agreement were to be made. Plaintiff testified that at the meeting defendant indicated he would not pay a red cent’ and, if she pursued her request, he would make trouble for plaintiff and her daughter by a previous marriage. Defendant, although not present at trial, stated in an affidavit filed in support of a motion for continuance, that he in fact had such a meeting with plaintiff wherein she informed him that she was not married to Mattson. However, in his affidavit defendant stated that in the absence of any proof to substantiate plaintiff’s statements, he would continue to believe that she was married. Accordingly, a short time after the meeting, defendant’s attorney sent a letter to plaintiff wherein he indicated that in view of plaintiff’s “remarriage”, all future payments under 2(c) were to cease. From 1961 to 1971, plaintiff and Alfred Mattson lived together and engaged in conduct designed to lead people to believe that they were husband and wife.

On March 8, 1971, plaintiff filed a petition seeking judgment for the unpaid sums of the settlement agreement plus interest of $28,470. Defendant, by his answer, admitted that he had made no payments under section 2(c) of the agreement but denied he owed any sums whatsoever. Defendant further denied plaintiffs allegation that she had not remarried and affirmatively raised the defenses of estoppel, laches, waiver and the statute of limitations.

After the denial of two motions by defendant for continuance, the trial proceeded and concluded with a finding that plaintiff had not remarried and therefore defendant was obligated to make payment pursuant to the aforementioned agreement. The court, however, refused to award the payment of interest on the unpaid amounts. It was from this order that both parties perfected appeals. Subsequent to the above trial, defendant has had conservators appointed for both his person and his estate.

OPINION

I.

Defendant contends that the trial court erred in denying him continuances on February 14 and 29, 1972. The first motion for a continuanee was based upon the illness of defendant, and in support thereof an affidavit was filed containing a letter from a California doctor reciting defendant’s inability to attend the trial. The motion was denied. After a continuance due to defendant’s attorney being on trial elsewhere, the defendant moved for a continuance on the day set for trial. Again the motion for continuance was predicated upon defendant’s illness, and in the supporting affidavit the following information was presented: (1) that defendant’s physical condition prevented his attendance at trial and also prevented his testimony from being preserved by a deposition; (2) that if the continuance were allowed and defendant were able to appear in court, he would testify that plaintiff had represented to him that she was remarried; however, at the meeting held in 1961, plaintiff had informed him that she was not married but only living with Mattson. Defendant chose not to believe plaintiff, but requested that plaintiff demonstrate to him that she had not remarried; and (3) that defendant never received notification from plaintiff relating to the possibility that she was not remarried, despite the fact that defendant indicated his willingness to make payments if plaintiff brought information in support of her representations of non-marriage and stopped using the name of Mattson and discontinued representations to her daughter that she was married.

This motion was also denied. On appeal, defendant asserts that because of his absence at trial, he was denied the right to present evidence which was material to his defense.

The affidavit noted above indicates that at the 1961 meeting with plaintiff, defendant was made aware of the fact that plaintiff asserted she was not married to Mattson. Further, the affidavit states that defendant believed she was remarried and he, therefore, would not make any payments. Essential to the defendant’s argument and necessary to avoid the dictates of the settlement agreement, is the establishment of plaintiff’s remarriage. In the affidavit, defendant states nothing which, if offered at trial, would have (1) contradicted her statement to him that she was not remarried; or (2) established that she was remarried. As stated in People ex rel. Linton v. Barth, 267 Ill.App. 574, 575:

“It was incumbent upon appellant to show that he had a meritorious defense and the materiality of the facts which he expected to prove by the absent witness.”

As further stated in North Federal Savings & Loan Ass’n v. Tokoph, 110 Ill.App.2d 254, 258, 249 N.E.2d 241:

“The unavailability of a prospective witness even though due to excusable cause such as illness, need not and should not be an appropriate reason for delay. It must also appear that the prospectíve witness’s testimony would be material to the issues involved. Otherwise, the only conclusion warranted would be that delay is being sought for its own sake and not to avoid prejudice.”

In addition, the affidavit contained no infonnation indicating that, if the continuance were granted, defendant would appear within the reasonable future or that his testimony would be procured. The law requires the affidavit to set forth the facts on which the expectation is based that the witness will be present or that his attendance will be procured. It is not erroneous to refuse a continuance where there is no reasonable prospect of obtaining the desired evidence at some future time. (Cairo Lumber Co. v. Corwin, 325 Ill.App. 319, 60 N.E.2d 110.) These inadequacies in the affidavit, considered in the light of the apparent deterioration of defendant’s condition, amply support the trial court’s denial of the motion for continuance.

Finally, we believe that defendant lacked diligence in memorializing his testimony via a deposition. In the early case of Mantonya v. Huerter, 35 Ill.App. 27, the defendant, suffering from nervous prostration, was advised by his physician to take a European trip and, as a result, was unable to attend his trial. Further, his testimony was not preserved by the taking of a deposition. The court, in responding to defendant’s argument that the trial court erred in denying his motion for a continuance, stated at pages 28 and 29:

“Nothing sworn to in these affidavits is inconsistent with the supposition that Mantonya’s deposition might, and should have been taken before he departed for Europe. The suit was begun December 15, 1887, and the issues were formed February 3, 1888, so that there was ample time for taking the depositions if the circumstances warranted that course. The affidavits are very vague as to the length of time Mantonya had been ill before the trial. One physician swears he had been suffering ‘for some time past from nervous prostration which has assumed a serious aspect during the past few months;’ the other, that he has, for a considerable time, and still is suffering from nervous prostration;’ while the attorney swears that ‘he has been an invalid for many months past.’ All that may be true, and still he may have been advised by his physicians to go to Europe, and determined to adopt their counsel, before his malady disqualified him for the excitement of cross-examination. The affidavits do not state when the European trip was advised, nor when he determined to go. In stating that ‘it was only known that he was about leaving a few days before he in fact did leave,’ his attorney presumably speaks for himself alone, as he could not swear when it was first known to the defendant.
Again, there is nothing to show any expectation that he will ever return, or that his testimony can be procured at any future time. The authorities hold that such expectation should appear from the affidavit. Shook v. Thomas, 21 Ill. 87; Richardson v. People, 31 Ill. 170."

• 2 Here, the affidavit filed in support of defendant’s motion was based upon a conversation between defendant and his attorney. It would seem, therefore, that defendant was able to communicate as to his recollection so that at some point after the petition was filed and before the trial date, his deposition could have been taken. If in fact that were to prove too strenuous, Supreme Court Rule 210 (Ill. Rev. Stat. 1971, ch. 110A, par. 210) provides for the taking of depositions on written questions. The allowance of a continuance is committed to the trial court’s discretion, the exercise of which is reviewable only where there has been an abuse thereof (Griffith v. Young Mens Christian Ass’n, 7 Ill.App.3d 1040, 288 N.E.2d 718). We find no abuse here.

II.

Defendant next asserts that plaintiff’s claim was barred by laches in that she waited some ten years before commencing her action. We note, initially, that a decree for alimony (herein a lump sum settlement) is a money decree and the 20-year statute of limitations applicable to judgments applies (Ill. Rev. Stat. 1971, ch. 83, par. 24(b); Mueller v. Mueller, 36 Ill.App.2d 305, 183 N.E.2d 887). Therefore, plaintiff’s petition, though dilatory, was filed within the prescribed statutory period. However, laches can operate even though the statutory period has not tolled. (Slatin's Properties, Inc., v. Hassler, 53 Ill.2d 325, 291 N.E.2d 641.) We will therefore consider the cases cited by defendant and determine whether they are applicable to tire facts as presented herein.

In Gordon v. Baker, 182 Ill.App. 587, alimony was not coffected for a period of 30 years, and in addition, the plaintiff had remarried twice since her divorce and, although the decree gave her custody of their child, she never in fact took care of this child. The action was brought after defendant’s death and the court held that laches barred her action because the long delay precluded the opportunity of defendant to raise valid defenses. Brown v. Brown, 108 So.2d 492 (Fla. App. 1959), involved eleven year delay before a petition for back alimony and interest was filed. There the wife expressly relinquished her right to collect alimony by pledging not to seek alimony if the husband would take their son into his business, which he did. The court found that laches barred her action and specificaUy determined that the husband was injured because, in reliance of his wife’s relinquishment, he had remarried and disposed of his interest in the business. In Hamilton v. Hamilton, 94 P.2d 127 (Col. 1939), plaintiff filed a petition for citation charging that defendant had disregarded his obligations to pay alimony. Plaintiff had waited 17 years to enforce the judgment for alimony and then did so by a contempt proceeding. The court determined that as to the contempt proceeding plaintiff was barred by laches. However, the court specifically refused to foreclose plaintiff’s right to collect the back alimony. These and the other cases cited by defendant do not persuade us to adopt the line of reasoning suggested by him.

Application of the doctrine of laches depends on the circumstances of each particular case (Pyle v. Ferrell, 12 Ill.2d 547, 147 N.E.2d 341). The court in Pyle on page 553 stated:

“[A] suit is held to be barred on the ground of laches or stale demand where and only where’ the following facts are disclosed: (1) Conduct on the part of the defendant giving rise to the situation of which complaint is made and for which the complainant seeks a remedy; (2) delay in asserting the complainant’s rights, the complainant having had notice or knowledge of defendant’s conduct and the opportunity to institute a suit; (3) lack of knowledge or notice on the part of the defendant that the complainant would assert the right on which he bases his suit, and (4) injmy or prejudice to the defendant in the event relief is accorded to the complainant or the suit is held not to be barred.”

In Kaifer v. Kaifer, 286 Ill.App. 433, 3 N.E.2d 886, an action for the non-payment of alimony, the court, in response to defendant’s argument that “after the year 1925 appellee made no demand upon appellant for any sum that might be due here under the former decree and that therefore having acquiesced in appellant’s failure to pay until she filed her petition herein in October, 1935, she is guilty of such laches as will preclude her from obtaining any relief,” stated on page 438:

“ ‘A court of equity will apply the doctrine to laches in denial of relief only where from all the circumstances to grant relief to which the complainant would otherwise be entitled will presumably be inequitable and unjust because of the delay’ * * *. This decree was a continuing order and we are unable to say that its enforcement is inequitable or unjust.”

We hold that defendant here has not suffered injury or prejudice as a result of plaintiff’s delay in filing her petition. (Gill v. Gill, 8 Ill.App.3d 625, 290 N.E.2d 897.) Defendant was obligated, in the absence of a court order terminating such, to pay the $78,000, and the argument raised that defendant is injured because he might be forced to pay in one lump sum as opposed to the contemplated monthly installments is unimpressive. When the settlement agreement was entered into, defendant was prepared to make these payments and there is nothing now in the record to indicate that he is no longer in this position. (See also 70 A.L.R.2d 1250.)

We agree, therefore, with the finding of the trial court in this regard and conclude that since defendant is unable to establish injury or prejudice, he cannot successfully interpose the defense of laches to bar plaintiff’s claim. Whether a party has been guilty of laches is a question addressed solely to the sound discretion of the trial court, and its finding will not be disturbed upon review unless it is so clearly wrong as to constitute an abuse of discretion. People ex rel. Heavey v. Fitzgerald, 10 Ill.App.3d 24, 293 N.E.2d 705.

III.

Defendant argues next that plaintiff by her silence after 1961 is estopped from asserting her claim. “Equitable estoppel may be defined as the effect of the voluntary conduct of a party whereby he [or she] is absolutely precluded from asserting rights which might otherwise have existed as against another person who has, in good faith, relied upon such conduct and has been led thereby to change his position for the worse, and who on his part acquires some corresponding rights.” (Emphasis added.) (Slavis v. Slavis, 12 Ill.App.3d 467, 473, 299 N.E.2d 413.) In order to claim reliance, one must be able to establish that he has acted without knowledge of the truth of the matter represented to him. (Brehm v. American Dental Ass’n, 6 Ill.App.3d 33, 284 N.E.2d 317.) The facts herein do not present such a case. Defendant, after the September 1961 meeting acted with the knowledge that plaintiff contended she was not remarried. He could have initiated court action to have determined her marital status and his obligation under the decree. That he voluntarily chose to ignore her representation cannot now give rise to the interposition of the defense of equitable estoppel.

Further, reliance on the conduct of another by a party to his detriment is an essential element of equitable estoppel. (Levin v. Civil Service Com., 52 Ill.2d 516,288 N.E.2d 97.) Here, as in defendant’s argument regarding the defense of laches, he has failed to establish the detrimental reliance suffered as the result of plaintiff’s conduct. Defendant, in fact, changed his position in that he made none of the payments required by the settlement agreement. However, his voluntary change of position was not one for the worse and, to the contrary, could be considered to have inured to his benefit for a period of ten years. His contention that his current illness is the type of ‘change of position or detriment contemplated by the doctrine of equitable estoppel is patently untenable. There is no indication that his illness was in any manner the consequence of the plaintiff’s conduct. Since the burden of proving estoppel is upon the party asserting it (Forest v. Forest, 9 Ill.App.3d 111, 291 N.E.2d 880) and since defendant has failed to affirmatively establish the requisite elements of the defense, we conclude that the defense of equitable estoppel is inappropriate here.

IV.

Defendant next contends that plaintiff married Alfred Mattson and is thereby precluded from receiving any payments pursuant to section 2(c) of the settlement agreement. He takes this position in spite of the fact that plaintiff and Mattson testified that they never went through a marriage ceremony and that the marriage certificate received in evidence was forged by Mattson. Defendant argues that the mere securing of an application for a marriage license, considered with the fact they were Mving together as husband and wife, constitutes a “marriage” which although voidable is sufficient under the defeasibility provision of the settlement agreement to defeat plaintiff’s claim for alimony. This argument, however, assumes that there was some effort by plaintiff and Mattson to marry.

In the cases cited by defendant for support of his contention, the parties involved undertook a course of conduct intended to culminate in marriage; here, plaintiff and Mattson simply lived together with no such intention. Marriage is a civil contract and like other contracts requires mutual consent of the parties thereto. (De Vries v. De Vries, 195 Ill.App. 4.) As between plaintiff and Mattson, as we view the record, there was no consent to be husband and wife. Assuming there was such consent, the best that could be said is that the parties entered into a common-law marriage which is expressly declared null and void by statute in this state (Ill. Rev. Stat. 1971, ch. 89, par. 4). Therefore, by defendant’s fafiure to establish that plaintiff has remarried, he is, under the terms of the property settlement agreement, obligated to make the payments in accordance with its terms.

V.

Plaintiff, as appellant, claims that the trial court erred in denying her interest of $28,470 on the accrued installments. In support of this position, plaintiff refers to a number of cases which have held that interest is assessable on unpaid afimony and support payments. (See: Pope v. Pope, 2 Ill.2d 152, 117 N.E.2d 65; Gregory v. Gregory, 52 Ill.App.2d 262, 202 N.E.2d 139; Simpson v. Simpson, 4 Ill.App.2d 526, 124 N.E.2d 573; Wadler v. Wadler, 325 Ill.App. 83, 59 N.E.2d 505.) In these cases, however, the husbands charged with tire non-payment refused to make payments without justifiable reason. Herein, after the 1961 meéting and because of plaintiff's subsequent silence and her apparent marital relationship with Mattson, defendant contends he had justifiable reason to believe that plaintiff had either remarried or was not going to pursue any claim for arrearage. We note that for some 10 years plaintiff abstained from malting demands upon defendant, even though the record indicates she saw him on several occasions during that time. We have stated in this opinion that, in the absence of establishing some injury or prejudice as a result of plaintiff's conduct, defendant could not interpose the defense of laches. Here, however, as the result of plaintiff’s conduct, defendant will suffer a substantial pecuniary loss insofar as the payment of interest is required. “The rule in equity is to allow interest where warranted by equitable considerations and to refuse such allowance when it does not comport with justice.” Kaifer v. Kaifer, 286 Ill.App. 433, 3 N.E.2d 886. Accord; Sutton v. Leib, 199 F.2d 163 (7th Cir. 1952); Anderson v. Anderson, 48 Ill.App.2d 140, 198 N.E.2d 342.

In Anderson, where plaintiff petitioned for judgment in the amount of arrearage and interest thereon, the court said at page 147:

“As to the plaintiff’s prayer for interest and attorneys’ fees, this is a matter within the sound discretion of the court.”

In Sutton, the second marriage of a wife was declared void and she sued for the alimony she didn’t receive during the second marriage together with interest and attorney’s fees. She was awarded this past due alimony but was denied interest and attorney’s fees. The reviewing court construed Illinois law to provide interest from the date each installment is due, especially “when resistance is wilful and deliberate and no sound reason exists for refusal to pay.” The court further stated if could see no reason for applying such a rule “under the facts where defendant had every reason to believe that his obligation had come to an end under the, terms of the decree which imposed it.” In addition, the court in Sutton stated that plaintiff made no demand for installments accruing “between August 1944 and December 1947 until the filing of the suit in April 1950” and the court went on to say that under the circumstances of that case “it would be very inequitable to charge defendant with interest and counsel fees.”

Here, because plaintiff held herself out to all but defendant that she and Mattson were married and because she made no demand for payments after her 1961 meeting with defendant until after her separation from Mattson in 1971, we conclude that defendant had justifiable reason to believe that his obligation under the decree had come to an end.

We are mindful of section 3, chapter 74, dealing with interest on judgments. Under the circumstances here, we believe that the reasoning of Kaifer, Anderson, and Sutton should be followed and, in view thereof, we conclude that the trial court did not abuse its discretion in denying plaintiffs claim for interest. We affirm the judgment therein.

Affirmed.

DRUCKER and LORENZ, JJ., concur.

       “2 (c) The sum of Seventy-eight Thousand Dollars ($78,000.00) in seventy-eight (78) equal monthly installments of One Thousand Dollars ($1,000.00) each, commencing at a date forty-eight (48) months from and after the
      first day of the month subsequent to that in which any decree for divorce shall be entered in favor of the wife and against the husband in the cause aforementioned.”
      3 *** The right of the wife to receive the payments provided in para-
      graph 2(c) shall be deemed to be defeasible only in the event of the death or the remarriage of the wife at a date prior to that on which any of the monthly installments required by the said paragraph 2(c) to be paid shall have become due and owing.”

       All of the following were done jointly and in the name of Mr. and Mrs. Alfred Mattson: signed apartment leases; filed joint income tax returns; conveyed property by warranty deed; purchased property as co-owners; car insurance taken in both names; press announcement of plaintiff’s daughter’s engagement. In addition, the letterhead of the organizations to which plaintiff belonged read Mrs. Alfred Mattson; her voter’s registration card read the same, and when she applied for unemployment compensation she used the name Mattson.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Edwin Eilers et al., Defendants-Appellants.
    (No. 58715;
    First District (5th Division)
    March 1, 1974.

      Rehearing denied April 8, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Martin Carlson, Assistant Appellate Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a bench trial, both defendants were found guilty of rape and sentenced to terms of from 4 to 12 years. On appeal defendants contend: (1) the trial court erred in refusing to allow the defendants to testify regarding matters essential to their defense; and (2) the evidence was insufficient to establish their guilt beyond a reasonable doubt.

At trial, the following evidence was adduced: Mary Anne Kantorski testified for the State that on February 18, 1971, at 1:30 A.M., she left her home to make a telephone call from the phone booth next to an unlighted gas station at 31st and Halsted. She was carrying her radio and was trying to call a radio station disc jockey but got a busy signal. As she left the phone booth, Michels grabbed her arm, put an 8-inch knife to her throat and said, “Don’t make a sound or I’ll kill you.” Eilers grabbed her other arm and put his hand over her mouth and both men pulled her down an alley and into a shed where Michels stood at the door, and Eilers then ordered her to take off her clothing. When she refused, Eilers knocked her down and pulled off her slacks, socks and underpants. Eilers attempted to have intercourse with her but was unable to do so because of her struggles. He then forced her to perform an act of oral copulation, after which he ordered her to put on her clothing. She got dressed but could not find her socks or underpants. An object then was put into her back, and one of the men said it was a gun and ordered her not to turn around or they would kill her. They took her to a first-floor rear apartment where she was pushed into a bedroom and ordered to take off her clothing. When she refused, one of the men put a knife to her throat and she then removed all of her clothing. Eilers again and then Michels attempted to have intercourse with her but were unable to do so because of her struggling. Eventually, after several hours, both Eilers and Michels forced her to have intercourse with them, and then she was released about 5:00 A.M. after they threatened to kill her and her family if she told the police. She went to the home of Rose Garno, her cousin, and told her that she had been raped, and they went to a police station to report the incident. The police took her to a hospital, where she was examined. The police also went with her to the shed, where they found her socks and underpants.

Rose Garno, the cousin of Mary Anne, testified for the State that on February 18, 1971, about 5:00 A.M., Mary Anne came to her home. Her hair was messed, her clothing dirty, and her eyes were bloodshot and full of tears. She said that she had just been raped by two men.

Maurice Sullivan, a Chicago police investigator, testified for the State that on February 18, 1971, he was assigned the investigation of an attack on Mary Anne Kantorski and went to the apartment of Michels, where he arrested defendants and found a set of knives and a bedsheet which he took with him.

James W. Kessler, a Chicago police officer, testified for the State that on February 18, 1971, Mary Anne came into the police station and reported she had been raped. He accompanied her to the phone booth at 31st and Halsted, where he found a key chain and personal items belonging to her. Inside a shack down the alley he found a pair of socks and panties, which the complainant identified as belonging to her. He testified that earlier, on February 18,1971, at about 1:00 A.M., he and his partner responded to a disturbance call and went to the area of 31st and Halsted. Defendants were in a group there but, to his knowledge, they were not searched at that time.

Fredrick Michels, defendant, testified that in the early morning of February 18, 1971, he was in a restaurant at 31st and Halsted with Eilers and several other men when an argument developed between two men who went outside, where a fight ensued. He and Eilers went out to break up the fight, and when the police arrived defendant and others were searched. He denied having a knife or gun in his possession. Later he and Eilers met Mary Anne as she left a phone booth at 31st and Halsted, and when they asked her where she was going, she stated that she was going to a restaurant on 35th Street. He and Eilers went with her to a shed where Eilers started kissing her. He went home, and about 10 or 15 minutes later Eilers came to his apartment with her and the two of them went into the bedroom. When Eilers came out he went in and had intercourse with her, after which she dressed and all three talked and had coffee. Later she and Eilers left the apartment together. He denied threatening her at any time.

Edwin Eilers, defendant, testified that early on February 18, 1971, he was at a restaurant at 31st and Halsted with Michels when Officers Kessler and Rinkenberger came to the scene of a fight. They were searched, but no weapons were found on their persons. Eilers testified they then met Mary Anne as she left a phone booth at 31st and Halsted, and they asked her where she was going and whether she would come with them. She agreed to go with them to Michels’ house and, as they were going through the alley, they observed a shack with the door open and Eilers said, “Let’s go in there.” She agreed, and all three entered the shack where he and she started necking, and Michels left, Eilers testified that he then left with her, and they went to Michels’ apartment, where he had intercourse with her in the bedroom. He denied at any time having a weapon or threatening her in any manner. After about 1 hour he left the bedroom and Michels then went into the bedroom and remained with her for approximately one hour. Later all three stayed in the kitchen where they talked, and he then left the apartment and walked with her to 31st and Emerald.

Chicago Police Officer Rinkenberger testified for the State that on February 18, 1971, he responded with Officer Kessler to a disturbance at 31st and Halsted, where he observed defendants, but they were not placed under arrest or searched.

OPINION

I.

Defendants initially argue that the trial judge erred in refusing' to allow them to testify concerning matters essential to their defense. They point out that their defense was grounded solely on the consent of the complaining witness, and they contend that the trial judge should have allowed Eilers to testify concerning her reputation in the community for unchastity.

Reputation testimony is admissible as an exception to the hearsay rule where the defense to the charge of rape is consent. People v. Cieslak, 319 Ill. 221, 149 N.E. 815.

Defendants call our attention to the fact that the trial judge sustained objections to each of the following questions which were asked of Eilers either on his direct or redirect examination (some of which were answered before the objection was made):

“* * * Q. What is Mary Anne Kantorski’s nickname, if you know? A. From what some of my friends told me—
Q. Do you have any knowledge as to what Mary Ann Kantorski’s reputation is in the neighborhood?
Q. Do you know any other persons that in fact knew this Mary Anne Kantorski? A. Yes, sir.
Q. Do you know whether or not Mary Anne Kantorski has a reputation in the neighborhood as to the truth or veracity?
Q. Does Mary Anne Kantorski have a reputation in the community of which you reside for chastity?
Q. Do you have any friends in the neighborhood who in fact know Mary Anne Kantorski?
Q. Have you ever discussed Mary Anne Kantorski with any people that live in your community? * * * A. Yes.”

We note that each of these questions inquires concerning present reputation, and we were unable to determine from the record any effort on the part of defendants to establish any reputation for unchastity prior to the acts charged. The underlying thought with respect to reputation testimony in rape cases is that it is more probable that an unchaste woman would assent than would a virtuous woman but, in any event, the evidence must be confined to general reputation or chastity before the acts charged (People v. Allen, 289 Ill. 218,124 N.E. 329); and even then only after a proper foundation is laid. (People v. Hankins, 90 Ill.App.2d 51, 234 N.E.2d 104.) Here, the stated questions did not inquire concerning the reputation of complainant before the acts charged and, inasmuch as her reputation thereafter was not an issue, the questions called for information having no relevance, and the trial judge was correct in sustaining the objections thereto. Furthermore, because no offer of proof was made concerning the excluded reputation testimony, we believe that the issue is not properly preserved for review (McMahon v. Coronet Insurance Co., 6 Ill.App.3d 704, 286 N.E.2d 631), and we disagree with the contention of defendants that the exception to the rule requiring an offer of proof should be applied here. As expressed in People v. Moretti, 6 Ill.2d 494, 520, 521, 129 N.E.2d 709, the exception is as follows:

“[I]f a question shows the purpose and materiality of tire evidence, aiid if it is m proper form and clearly admits of an answer relative to the issues, the party by whom the question is propounded is not bound to state the facts proposed to be proved by the answer unless the court requires him so to do.”

Here, we believe the questions do not show the materiality of the evidence, and as we have already concluded that the questions called for answers not relevant to the issues, we believe the exception, as expressed in Moretti, does not apply.

Defendants also assert because the trial judge sustained an objection, on the ground of hearsay, to testimony of Michels concerning a conversation with the complaining witness as she emerged from the telephone booth. This testimony would not be hearsay, because it was offered to show that the complainant made certain statements which had relevance concerning the defense of consent. (People v. Carpenter, 28 Ill.2d 116, 190 N.E.2d 738.) However, we note from the record here that Michels, on cross-examination, testified concerning this conversation at the phone booth and that Eilers not only testified to the conversation but also to their conduct at the phone booth. We have not been informed, nor does it appear from the record, by offer of proof or otherwise, that any part of this conversation was not related. It has long been established that the rejection of evidence is not prejudicial where substantially the same evidence is admitted at some stage of the trial. (People v. Moretti, 6 Ill.2d 494, 529, 129 N.E.2d 709.) Here, the evidence having subsequently been admitted, no prejudicial error resulted from its initial refusal.

II.

Finally, defendants argue that the charges were not proven beyond a reasonable doubt. They maintain that the version of complainant as to what happened was totally implausible, and they point to specific portions of complainant’s testimony; namely, her statement that she left her parents’ home at 1:30 A.M. to call a disc jockey from a street phone booth; that when she was released at 5:00 A.M., she went to her cousin’s home rather than her own; that she left home with a radio, which was later unaccounted for; that she said that the restaurant across from the phone booth was closed, and the police officers said it was open; that she was abducted at knife-point in plain view of the open restaurant; and that she never saw the gun allegedly put to her back. Defendants contend that this testimony, considered with the fact that they did not conceal their identities at any time, and because the Michels apartment, where the acts charged occurred, was within a few blocks of the phone booth and of complainant’s home, leaves her total testimony completely unworthy of belief.

The State, in replying thereto, lists instances where her testimony was corroborated; namely, the implausibility of the voluntary sexual activity in the shack, which was admittedly filthy and debris-strewn; the fact that items knocked from her purse during her struggle were found by the police the next day near the phone booth; the fact that some articles of clothing which she stated were ripped off by Eilers in the shack and which she could not find when she was told to dress were found the next day by the police; the fact that immediately after she was released she went to her cousin’s home and told her she had been raped by two men; the fact that a knife, identified by her as the one used by Michels was found in his apartment the next day.

Reviewing courts are charged with a special duty of carefully examining the evidence in rape cases. (People v. Qualls, 21 Ill.2d 252, 171 N.E.2d 612.) However, unless this court is able to find that the evidence is so unsatisfactory as to leave a reasonable doubt of the guilt of defendant, the finding of the trial court will not be disturbed. (People v. Hampton, 44 Ill.2d 41, 253 N.E.2d 385.) And the fact that the evidence at trial has been conflicting will not in itself justify a reversal of the finding of the trier of fact. (People v. Hiller, 7 Ill.2d 465,131 N.E.2d 25.) We have carefully reviewed the record, and we cannot say that the evidence is so unsatisfactory as to leave a reasonable doubt as to the guilt of defendants.

For the reasons stated, we affirm the judgment of the trial court.

Affirmed.

DRUCKER and BARRETT, JJ., concur.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie G. Johnson, Defendant-Appellant.
    (No. 58804;
    First District (1st Division)
    March 4, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Kenneth L. Jones, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James Veldman and Douglas Cannon, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant was convicted of murder after a trial by jury, and was sentenced to serve from 25 to 100 years in the Illinois State Penitentiary. On appeal, he raises four issues: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court erred in not granting defendant’s motion for a mistrial after the introduction of testimony allegedly linking him to a street gang; (3) tire defendant was denied his right to poll the jury, after the verdict against him was entered; and (4) the sentence was excessive. We disagree and affirm.

On the evening of March 12, 1970, the defendant, the deceased and several friends called at the apartment of the deceased’s mother, Mrs. Fields, where the deceased’s and the defendant’s sisters and some small children were already visiting. The principals and their associates had already spent at least part of the afternoon drinking an undetermined quantity of wine, beer, and/or alcohol, and at least one bottle of whisky was brought to the apartment that evening. All the parties had been present in the apartment for a short time, when a fracas broke out between two of the decedent’s friends. The decedent had attempted to stop the fight unsuccessfully, when the defendant screamed at him to remain still and fired a shot from a pistol into the air. (Defendant also had a shotgun in his right hand, but neither weapon was introduced at trial.) This shot was followed by another warning, according to two of the witnesses, and then the second, fatal shot was fired, almost immediately after the first one. Only one of the several witnesses to the occurrence disputes the question of the timing of the shots, and that is the defendant’s sister, who stated that the second shot was not fired until some 20 minutes after the first shot. The second shot entered the decedent’s brain, next to the right eye, and the defendant left the apartment after the incident, went to his home and then on to his place of employment. He was apprehended by the police early the next morning and charged with the murder. At trial there was no significant testimony relating to any prior ill will existing between the deceased and the defendant, and their relationship was characterized as a friendly one.

The first issue which the defendant raises is that the State failed to prove him guilty beyond a reasonable doubt of the crime of murder. His own testimony at trial, and to some extent that of his sister, attempted to demonstrate that either the gun misfired when it struck the decedent, and/or the decedent accidently moved into the range of the shot, when the defendant attempted to fire a warning shot over his head in order to break up the brawl in the living room. As neither side introduced the weapon into evidence, there is no support in the record for the defendant’s assertions that this was an automatic weapon and that it fired twice when the trigger was pulled. This theory is inconsistent with the defendant’s sister’s testimony that at least twenty minutes elapsed between the two shots, and also with the testimony of two of the witnesses who were standing next to the deceased, and who stated that the defendant issued a warning to the deceased before firing the fatal shot.

In the case of People v. Sumner, 43 Ill.2d 228, 252 N.E.2d 534, the Illinois Supreme Court outlined the standard to be considered by a reviewing court, when determining whether the verdict of a jury should be set aside. It is there stated, at page 232, that:

“It is peculiarly the province of the jury to weigh the evidence, judge the credibility of witnesses and determine the facts. A reviewing court will not set aside a jury’s verdict of guilty unless the evidence is so palpably contrary to the verdict or so unreasonable, improbable or unsatisfactory as to cause a reasonable doubt as to the guilt of the accused. (People v. Prohaska, 8 Ill.2d 579, 589-90; People v. Sustak, 15 Ill.2d 115, 123; People v. Ford, 19 Ill. 2d 466, 480.)”

See also People v. Brown, 68 Ill.App.2d 17, 214 N.E.2d 465, and People v. Smith, 58 Ill.App.2d 123, 206 N.E.2d 714.

Applying this standard to the facts of the case at bar, we conclude, from the account given by the witnesses who were present at the scene, that the jury had more than enough evidence before them to support the finding of guilty. In spite of the defendant’s attempts to point out minor inconsistencies in the testimony of the witnesses to this shooting, the testimony of the participants was surprisingly similar, when the melee, which surrounded the shooting, is considered. Two of the witnesses stated that the defendant threatened the deceased immediately prior to firing the second shot, and the other witnesses, with the exception of the defendant’s sister, stated that the decedent was threatened by the defendant prior to the firing of the first shot into the air. With this consistent, factual accounting of the shooting, it certainly was possible for the jury to conclude that the defendant had the intent necessary for the commission of the crime with which he was charged. Therefore we will not disturb the finding of the jury.

Turning then to the defendant’s second contention, that the trial judge erred when he refused to grant a mistrial, after the introduction of testimony linking the defendant with a street gang, we conclude that the defendant’s assertions are not well founded as the remarks in question were not of a prejudicial or inflammatory nature. The relevant interchange in the testimony of Robert Luckett was as follows:

“Q. Did either you or Thoyce have a knife?'
A. No.
Q. During the fight?
A. No.
Q. Had you seen that shotgun any time earlier in the day?
A. No.
Q. Do you know of your own knowledge where Ricko got the shotgun from?
A. Off of 18th and Pulaski, from someone, from some member of the Panthers.
Q. An associate of the Panthers?
A. Yes.
Q. Were you with Ricko when he got the shotgun?
A. Yes.
Q. Do you know where Ricko got the pistol?
A. Yes, the same place.
THE COURT: Pardon me, Mr. Karlin has approached the Bench. You will have an opportunity to cross-examine.
MR. KARLIN: No, I’m not concerned about that.”

At this juncture defense counsel approached the bench and protested the remark and the State’s Attorney agreed that it should be stricken as unresponsive to the question, as he was merely trying to establish that the defendant had entered the apartment with the gun. There is no indication in the record that the State was attempting to establish an illicit street gang connection of the defendant, and the cases which the defendant cites, dealing with street gang executions are not in point. Certainly the remark, which was promptly stricken, did not in any way prejudice the defendant, so as to necessitate a mistrial. The motion for a mistrial was properly denied in this circumstance.

The third point which the defendant raises, that he was denied his right to poll the jury, after the verdict was read, is also without merit. That the defendant had a right to request the poll is not in question, but where mere inadvertence on the part of the clerk, allowed one juror to be skipped in the original roll call, we do not see the need of ordering a new trial because the defendant claims that he was prejudiced. When the error was discovered, all the jurors were returned, and the juror who was skipped was questioned and answered without hesitancy that this was and continued to be his verdict. To say that the conversation between the bench and the defense attorney in any way influenced this response is without foundation, particularly since, if the reply were less than truthful, another of the jurors or the foreman would have protested. Thus this mistake, not even noticed by the defense, until brought to the corut’s attention, will not be considered grounds for granting the defendant a new trial.

The defendant’s final contention is the sentence given him was excessive in light of the sentences awarded other persons charged with similar crimes. It has often been stated in this court that sentencing is within the peculiar province of the trial judge, and that a reviewing court will not interfere with his discretion unless that discretion has been abused. (People v. Sockwell, 7 Ill.App.3d 520, 288 N.E.2d 33; People v. Loyd, 125 Ill.App.2d 196, 260 N.E.2d 63.) The sentence which the defendant received was well within the statutory limits prescribed for this offense, and, in our opinion, the court did not abuse its discretion. We therefore will not disturb the sentence.

The judgment of the circuit court of Cook County is therefore affirmed in all respects.

Judgment affirmed.

EGAN, P. J., and GOLDBERG, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Bernard Dahl, Defendant-Appellant.
    (No. 59177;
    First District (1st Division)
    March 4, 1974.
    BURKE, J., took no part.
    James J. Doherty, Public Defender, of Chicago (Saul H. Brauner, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: PER CURIAM:

text:
    Division-Kostner Currency Exchange, Inc. et al., Plaintiffs-Appellants, v. C. Austin Montgomery, Director, Department of Financial Institutions, et al., Defendants-Appellees.
    (No. 59243;
    First District (1st Division)
    March 4, 1974.
    EGAN, P. J., took no part.
    Carey, Filter & White, of Chicago (Edward M. White, of counsel), for appellants.

      Duffy and Jordan, of Chicago, for appellee Thillens, Inc.
    William J. Scott, Attorney General, of Chicago (Bonny Sutker Barezky, Assistant Attorney General, of counsel), for appellee C. Austin Montgomery.
   PER CURIAM:

Division-Kostner Currency Exchange, Inc., and Grand-North Currency Exchange, Inc. (plaintiffs), filed the instant complaint for administrative review of the decision of C. Austin Montgomery, Director of the Department of Financial Institutions (Director) awarding Thillens, Inc. (defendant), an ambulatory currency exchange license to perform on-location check-cashing services for the employees of an industrial plant located a short distance from the respective plaintiffs’ established community currency exchanges. (Ill. Rev. Stat. 1971, ch. 110, par. 264 et seq.) The complaint alleged that the decision of the Director was contrary to law, unsupported by the evidence, and against the manifest weight of the evidence. The circuit court found that the Director’s decision was not against the manifest weight of the evidence and denied the relief sought in the complaint. Plaintiffs appeal, contending that the trial court was in error in holding that the decision of the Director was not against the manifest weight of the evidence.

The record discloses that the defendant applied for a license to provide an ambulatory check-cashing service to the employees of the Pyle-National Company, 1334 North Kostner Avenue, Chicago, Illinois. The application was denied after initial investigation by the Director and the defendant requested a hearing on the matter, which was held on May 11, 1972, before a hearing officer of the Department of Financial Institutions. At that hearing, it was brought out that an earlier application had been filed by defendant to service Pyle-National a short while after the Brinks Corporation had ceased providing check-cashing services for Pyle-National’s employees in September 1970, after about 25 years of providing such service, and that the earlier application had been denied after a hearing in October 1970.

At the May 1972 hearing on the instant application, evidence was adduced that the Pyle-National Company was located on the west side of Kostner Avenue, which was industrial in character; that the east side of Kostner Avenue was residential in character; and that the company employed about 700 employees, the majority of whom desired a check-cashing service to be located on the company grounds due to the inconvenience involved in cashing their paychecks during working hours on payday. The president of the company had received “considerable pressure” from his employees to secure a check-cashing service for the plant premises, and the two industrial plants flanking the Pyle-National Company plant were serviced by ambulatory check-cashing operations. It was further brought out at the hearing that the plaintiffs’ community currency exchanges were located 1 and 2 blocks from the Pyle-National plant, that both plaintiffs were located near public bus routes and were accessible from nearby ample automobile parking, and that about 10 percent of one plaintiff’s gross business and about 5 percent of the other plaintiff’s gross business were generated from Pyle-National employees. It was also brought out that both plaintiffs’ businesses would suffer if the proposed license were granted, that about 80 per cent of the Pyle-National employees drove to work, that the majority of those employees lived in the neighborhood of the Pyle-National plant, and that one wishing bus service to and from the Pyle-National plant could board and alight the buses in the immediate proximity of the respective plaintiffs’ locations.

The evidence adduced before the hearing officer, consisting of testimony and various exhibits, was summarized in the hearing officer’s report and adopted as his findings of fact. After citing several relevant portions of the Community Currency Exchange Act in the report, the hearing officer arrived at the following conclusions:

«2 * * »
A. The evidence adduced in the hearing herein, establishes the need of the community for the services sought to be provided at the location specified.
B. The evidence adduced in the hearing herein establishes that the public convenience and advantage of the community in which the business is proposed to be conducted will be promoted by the issuance of the license herein sought.
3 # e #
A. The evidence adduced at the hearing herein establishes that the legislative policy as above set out will not be contravened by the issuance of the license herein sought, and that the needs of the community wherein the location license is sought, are such as to warrant the issuance of the license sought.
£ # * #
A. The evidence adduced at the hearing herein establishes that the public interest to promote and foster the community currency exchange business will not be contravened by the issuance of the license herein sought.
B. The evidence adduced at the hearing herein establishes that the public interest to assure the financial stability of the community currency exchange business and of Objector herein specifically, will not be contravened by the issuance of the license herein sought.
THEREFORE, for the reasons hereinabove set forth, the Hearing Officer concludes that the Applicant has met the statutory requirements for the issuance of the proposed location license, and recommends that the Director reverse, set aside, and hold for naught, his ORDER OF DENIAL of the application herein, dated January 31st, 1972, and that the location license herein sought be granted.”

The findings of the hearing officer were approved by the Director on January 29, 1973, the ambulatory license applied for was issued, and this action for administrative review of the Directors decision followed.

Plaintiffs contend on appeal that the evidence adduced at the administrative hearing discloses that the convenience and advantage of the community would hot be promoted by the instant license in that its issuance would result in a saturation of currency exchanges in the community; and that the issuance of the license applied for will jeopardize the financial stability of the plaintiffs’ existing community currency exchanges. The appellees deny that the issuance of the license would result in a “saturated” condition of currency exchanges in the community, since the application is restricted to a weekly service at a single location, and they contend that the plaintiffs have failed to show that a conclusion contrary to the decision of the Director is “clearly evident” from the evidence adduced at the hearing before the administrative agency.

The findings of an administrative agency are considered prima facie correct and will not be disturbed on review unless contrary to tire manifest weight of the evidence. (Marion Power Shovel Co. v. Department of Revenue, 42 Ill.2d 13, 244 N.E.2d 598.) In order for an agency decision to be found against the manifest weight of the evidence, an opposite conclusion from that evidence must be “clearly evident.” (Legones v. License Appeal Com., 100 Ill.App.2d 394, 403, 241 N.E.2d 499.) However, where the facts are not in dispute, the legal effect of the evidence may create a matter of law for the court’s determination. J. H. Walters & Co. v. Department of Revenue, 44 Ill.2d 95, 104, 254 N.E.2d 485.

The Illinois Community Currency Exchange Act regulates the issuance of both community currency exchange licenses and ambulatory currency exchange licenses. (Ill. Rev. Stat. 1971, ch. 16½, par. 30 et seq.) The Act draws a concrete distinction between a community currency exchange and an ambulatory currency exchange, the latter being defined in terms of an “on-location” service to the employees of a particular employer. (Ill. Rev. Stat. 1971, ch. 16½, par. 31.) This distinction is further delineated by the terms of the Act since the Legislature “has found and declares” in section .01 that the community currency exchange business should be fostered and promoted whereas the nature of the ambulatory currency exchange business is such as to render it hazardous and dangerous to tiie public interest. Ill. Rev. Stat. 1971, ch. 16½, par. 30.

The concept that the ambulatory currency exchange business is not a favorite of the law has been carried into effect by the Illinois Supreme Court in Thillens, Inc. v. Department of Financial Institutions, 24 Ill.2d 110,180 N.E.2d 494. Sections 4.1 and 4.3 of the Act, respectively, deal with the issuance of licenses for community currency exchanges and ambulatory currency exchanges. (Ill. Rev. Stat. 1971, ch. 16½, pars. 34.1, 34.3.) The Illinois Supreme Court in the Thillens case has found that the definition of “community” contained in section 4.1 of the Act is applicable to investigations of applications for licenses for ambulatory exchanges, and that the term “community” as used in the Act is not synonymous with the term “location” as applied to the ambulatory currency exchange situation. The test for the issuance of an ambulatory currency exchange is therefore whether it will promote the convenience and advantage of the community, not that of the location to be served. Thillens, Inc. v. Department of Financial Institutions, supra; Edidin v. Montgomery, 15 Ill.App.3d 909, 305 N.E.2d 316.

The. evidence adduced before the administrative hearing officer failed to disclose in what manner the proposed license would “promote the convenience and advantage of the community.” It related primarily to the benefits and convenience which would accrue to the Pyle-National “location” and in fact demonstrated a somewhat depreciative effect upon the business of the existing community currency exchanges. The conclusions of the hearing officer and the decision of the Director are based upon those facts. It is “clearly evident” that no ambulatory license should have been granted under these circumstances since the test established by th Community Currency Exchange Act and by the foregoing Thillens case, that the community rather than the location be benefited by the issuance of such license, had not been met. The judgment of the circuit court upholding the decision of the Director was therefore in error.

For these reasons, the judgment of the circuit court of Cook County which sustained the . decision of the Director of Financial Institutions is reversed and the cause remanded with directions to enter judgment granting the relief requested in the plaintiffs’ complaint.

Judgment reversed and remanded.

Mr. PRESIDING JUSTICE EGAN took no part in the consideration or decision of this case.