author: Mr. JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gloria Jenkins, Defendant-Appellant.
    (No. 57042;
    First District (1st Division)
    February 19, 1974.
    Edward M. Genson, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

Gloria Jenkins, defendant, was charged by a criminal complaint with the offense of theft in violation of section 16—1(a)(1) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 16—1(a)(1)). After a bench trial, defendant was found guilty and sentenced to a term of one-year probation on condition that she serve ninety-days imprisonment in the Cook County jail. Defendant appeals.

At the trial, the following evidence was adduced: Mrs. Aquiline Segler, a security employee of the Carson Pirie Scott & Co. store located at 9700 S. Western Avenue, Evergreen Park, Illinois was called as a witness by the People. Mrs. Segler testified that while she was conducting a final tour of the store prior to closing time, she observed the defendant, Gloria Jenkins, on the third floor of the store stooping over a counter from which defendant took several bags. When the defendant proceeded into the linen department of the store with the bags, Mrs. Segler alerted her “male back-up”, Mr. Powers, as to her need for assistance. During a five-to-ten minute period Mrs. Segler observed the defendant take merchandise from the counter and place it in the bags, including a plaid mohair rug and a pillow (People’s Exhibits No. 1 and No. 2). The defendant moved around several display counters and started toward the escalator, which was located in the opposite direction from the cash register. Mrs. Segler further testified that Mr. Power pursued the defendant, at which point the defendant dropped the bag in which she had placed the rug and pillow and went down the escalator. The defendant was apprehended by Mr. Powers and taken to another area of the store where she was interrogated. The bag which contained the rug and piHow (People’s Exhibits No. 1 and No. 2) was retrieved by Mr. Powers.

Mrs. Dorothy Cunningham, caHed as a witness by the People, testified that on the date of this incident, January 22, 1971, she was employed as the chief of security by Carson Pirie Scott & Co. She testified that on January 22, 1971, at approximately 9:30 P.M. she observed the defendant on the third floor of the store. Mrs. Cunningham further testified that at that time she saw the defendant running from the linen department to the escalator and the defendant threw the bag which contained the merchandise just before she got on the escalator which operated from the third floor to the second floor of the store. She observed Mr. Powers pursuing the defendant and stated that while the defendant was running toward the escalator, defendant Jenkins had one bag in her hand.

Detective Russell Moline of the Evergreen Park Police Department, caHed as a witness by the People, testified that he did not arrest the defendant but that the normal police practice is to inventory, by numbers, the personal property of the arrested person. Officer Moline testified that in the present case an inventory would have been taken of the personal property of defendant Jenkins. The officer then testified that the number 72967 which was written on various exhibits denoted the inventory number given by the Evergreen Park Police Department.

The defendant testified on her own behalf. She stated that she went to the third floor linen department of Carson Pirie Scott & Co. to purchase a pillow which she had noticed on a previous shopping trip. The sales lady assisted her in the selection of a pillow and she waited her turn to make the purchase. When she received her receipt for the pillow, she walked forward to the elevator. The pillow and the respective sales receipt, showing the date of purchase and the price, were identified and marked as defendant’s Exhibits No. 1 and No. 2, respectively. The defendant further testified that she was stopped on the second floor by a male security officer. The officer placed the defendant in the custody of another man and returned upstairs. Shortly thereafter, he returned to the second floor and took the defendant down to the basement of the store.

The defendant testified that Mrs. Segler was in the process of interrogating two other women when she arrived at her office. Mr. Powers was carrying a bag which contained defendant’s scarf and coin purse (defendant’s Exhibit No. 3). The defendant stated that it was subsequent to this time that Mr. Powers brought the allegedly stolen items to Mrs. Segler’s office.

Defendant argues that the trial committed error in refusing the timely demand by defendant’s counsel to inspect, for impeachment purposes, a document used by one of the People’s principal witnesses to refresh her recollection.

Defendant’s argument is directed to the testimony of Mrs. Aquiline Segler, who testified that, pursuant to her employment, she had prepared a written report to her employer relative to defendant’s arrest. The witness stated that she had part of tire report with her at the time she testified and the purpose of the report was to refresh her memory. Defendant’s counsel made a timely demand to view the document for impeachment purposes. The People objected to tire demand and the objection was sustained by the trial judge.

Defendant, relying principally upon tire decisions of tire Illinois Supreme Court in People v. Wolf, 19 Ill.2d 318, 167 N.E.2d 197, and People v. Scott, 29 Ill.2d 97, 193 N.E.2d 814, argues that the trial judge’s ruling denying defense counsel’s demand to examine Mrs. Segler’s report constitutes prejudicial error.

The People, in response, concede that it was error for the trial judge to, deny defense counsel tire opportunity to inspect the material used by Mrs. Segler prior to the trial to refresh her recollection as to the events relative to defendant’s arrest". (People v. Scott, 29 Ill.2d 97, 193 N.E.2d 814.) The People maintain, however, that the denial of defense counsel’s demand was harmless error and is not cause for reversal. The People contend that in the present case the trial judge, as trier of fact, examined the report prepared by the witness prior to his denial of the demand of the defendant and that in this context it cannot be said that the defendant was prejudiced by her inability to use tire report for impeachment purposes.

From our examination of the record it is not possible to determine whether the Mai judge did, in fact, examine Mrs. Seglers report. In addition, defendant’s counsel on appeal, who was also the trial attorney representing defendant, has stated in defendant’s reply brief, “that the Mai judge did request permission to look at those notes, which procedure was objected to by the defendant, and that tire Mai judge never, in fact, examined the notes in question.”

In People v. Wolff, 19 Ill.2d 318, 327, 167 N.E.2d 197, 201-02, the Illinois Supreme Court enunciated the rule which we believe is applicable to this case:

“Accordingly, we adopt the view that where no privilege exists, and where tire relevancy and competency of a statement or report has been established, the trial judge shall order the document delivered directly to the accused for his inspection and use for impeachment purposes. However, if the prosecution claims that any document ordered to be produced contains matter which does not relate to the testimony of the witness sought to be impeached, the Mai judge will inspect the document and nray, at his discretion, delete unrelated matters before delivery is made to the accused.”

We believe that it is significant to observe that the record in the present case reflects that the Assistant State’s Attorney representing the People did not object to defendant’s demand to inspect Mrs. Seglers report on the basis that it contained matter which did “not relate to the testimony of the witness sought to be impeached.” Rather, the basis of the People’s objection was that Mrs. Segler was not a police officer and that security officers employed by private corporations are not compelled to make their reports available. We can perceive no rational basis which would justify a rule distinguishing between reports prepared by police officers employed by a municipality or the state government and those prepared by police officers or security officers employed by private corporations.

In the present case we are of the opinion that no privilege existed as to the report of Mrs. Segler. Moreover, the relevancy and competency of the report had been established and therefore the Mai judge should have ordered that the report be delivered directly to the accused for her inspection and use for impeachment purposes. We are of the opinion that the trial judge’s refusal to permit defendant to examine Mrs. Segler’s report constituted prejudicial error and necessitates the reversal of the judgment and the remandment of this cause for a new trial.

Defendant also maintains that the evidence presented in this case fails to prove her guilt beyond a reasonable doubt. In view of the fact that this cause must be reversed and remanded, we are of the opinion that no useful purpose would be served by a lengthy recitation of evidence as it pertains to this contention. Suffice it to say that there was ample evidence presented to the trial judge for his determination of the issue as to whether the defendant was proved guilty beyond a reasonable doubt.

For these reasons the judgment is reversed and the cause remanded for further proceedings not inconsistent with the views expressed.

Judgment reversed and cause remanded with directions.

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


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE EGAN

license: Public Domain

text:
    Elizabeth A. Koester et al., Plaintiffs, v. Yellow Cab Company et al., Defendants. Lucille A. Lasso, Plaintiff, v. Yellow Cab Company et al., Defendants—Appellees—(Illinois Bell Telephone Company, Intervenor-Appellant.)
    (No. 57604;
    First District (1st Division)
    February 19, 1974.

      Hackbert, Rooks, Pitts, Fullagar and Poust, of Chicago (Daniel P. Socha and Terrence E. Kiwala, of counsel), for appellant.
    Jesmer and Harris, of Chicago (Julius Jesmer, Robert Jesmer, and Charles E. Tannen, of counsel), for appellees Yellow Cab Company and Ernest Mayden.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

In 1967, a complaint for negligence was filed by employees of Illinois Bell Telephone Company (hereafter Illinois Bell) against Yellow Cab Company (hereafter Yellow Cab) for injuries received while passengers in the defendant’s taxicab. Two of the plaintiffs, Elizabeth Koester and Paulina Bastiancic, received benefits from Illinois Bell under the provisions of the Illinois Workman’s Compensation Act in the amount of $2,003.11 up to March 1, 1972, and Lucille Lasso filed a petition against Illinois Bell before the Industrial Commission.

On January 28, 1972, the jury returned the following verdict: “We the jury find for the plaintiffs and against the defendants.” There was no printed matter on the verdict form for the assessment of damages. On the same day, the court entered judgment on the verdict in the following form: “Therefore, it is considered by the court, that the plaintiffs do have and recover of and from the defendants their said damages of NIL, in form as aforesaid by the jury, assessed together with their costs and charges in this behalf expended and have execution therefore.”

On February 4, Yellow Cab filed a motion for judgment notwithstanding the verdict or in the alternative for a new trial. On March 3, 1972, Illinois Bell filed a petition to intervene, and on March 17 the court granted a new trial to Yellow Cab and denied the petition to intervene. The reason ascribed by the court for the order of denial to intervene was that the court found “plaintiffs were not in the course or scope of their employment.” The record does not contain any answers to tihe petition. The trial judge made his determination that the plaintiffs were not in the course of their employment from the evidence heard at the jury trial. It was not an issue in that trial, and, most important, Illinois Bell did not participate in the jury trial. It is the appeal of Illinois Bell from the order denying its petition to intervene that is before us, and it is Yellow Cab, not the plaintiffs, that has appeared in this court resisting the appeal.

The Workman’s Compensation Act (Ill. Rev. Stat. 1971, ch. 48, sec. 138.5(b)) provides:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employer’s payment of or liability to pay compensation under this Act. In such case, however, if the action against such other person is brought by the injured employee or his personal representative and judgment is obtained and paid, or settlement is made with such other person, either with or without suit, then from the amount received by such employee or personal representative there shall be paid to the employer the amount of compensation paid or to be paid by him to such employee or personal representative including amounts paid or to be paid pursuant to paragraph (a) of Section 8 of this Act.
* * *
If the injured employee or his personal representative agrees to receive compensation from the employer or to accept from the employer any payment on account of such compensation, or to institute proceedings to recover the same, the employer may have or claim a lien upon any award, judgment or fund out of which such employee might be compensated from such third party.
In such actions brought by the employee or his personal representative, he shall forthwith notify his employer by personal service or registered mail, of such fact and of the name of the court in which the suit is brought, filing proof thereof in the action. The employer may, at any time thereafter join in the action upon his motion so that all orders of court after hearing and judgment shall be made for his protection. No release or settlement of claim for damages for reason of such injury or death, and no satisfaction of judgment in such proceedings shall be valid without the written consent of both employer and employee or his personal representative, except in the case of employers, such consent is not required where the employer has been fully indemnified or protected by Court order.”

It thus appears that the statute creates only two alternative conditions precedent to the right of the employer to intervene in any action brought by the employee against a third party: The employee agreed to receive or did accept compensation from the employer, or the employee instituted proceedings to recover compensation. And it further appears that those conditions precedent have been met in this case: Illinois Bell has paid compensation to Koester and Bastiancic, and Lasso has instituted proceedings before the Industrial Commission. There is nothing in the statute that provides the employer may not recover unless he can prove in the intervention proceedings that the injury arose out of and in the course of employment. Whether an injury so arose is an issue to be decided between the employer and the employee at the Industrial Commission unless, as in Bassi v. Morgan, 60 Ill.App.2d 1, 208 N.E.2d 341, cited by Yellow Cab, a common law action is instituted by the employee against the employer. In that case the court held that the employer had the right to show that the injury occurred in the course of employment and, therefore, the employee’s common law action was barred, his only remedy being under the Workman’s Compensation Act. Bassi does not support Yellow Cab’s position here and neither does Neal v. Independent Boiler & Tank Co., 119 Ill.App.2d 440, 256 N.E.2d 38.

In Neal, the petition to intervene alleged, as here, that the employee was injured in an accident which arose out of and in the course of his employment. The only issue in Neal was whether proceedings before the Industrial Commission are a condition precedent to the employer’s right to intervene. The court held that they were not and reversed a denial of the right to file an amended petition, adding the following dicta at page 444:

“We make no determination of the merits [of the petition] since plaintiff has the opportunity after leave to file is granted to contest the allegations of the petition on the grounds that plaintiff was not in the course of his employment, that the compensation was not paid under the Workmans Compensation Act and such other grounds as plaintiff may deem advisable. The merits of the petition will then be determined by the trial court.”

The issue in this case was not before the Neal court, and we hold that the allegation in the petition that the employees were in the course of their employment when injured is surplusage and need not be proved in the intervention proceedings. To hold otherwise would permit an employee to make a claim with an employer under the Workman’s Compensation Act, receive benefits, successfully maintain a common law action against a third party and then resist the employer’s right to intervene by taking a position diametrical to the one he took when he received benefits under the Act. Such a result, a double recovery, is precisely what the statute was designed to avoid. Reno v. Maryland Casualty Co., 27 Ill.2d 245, 188 N.E.2d 657; Continental Casualty v. Sweda, 113 Ill.App.2d 423, 251 N.E.2d 65.

The defendant contends that the order should be affirmed because the petition was not timely filed. We disagree. The case cited by the defendant, Walsh v. Central Coal Storage Co., 324 Ill.App. 402, 58 N.E.2d 325, is inapposite. At the time of the Walsh decision, tire Workman’s Compensation Act provided that if the third party tortfeasor was also covered by the Act, the right of the employee to recover was transferred to the employer who then had the right to bring a direct action against the tortfeasor to recover the amount for which the employer was liable. The employer in Walsh filed a direct action against the third party more than two years after the accident, and the court held that his right to recover was barred by the Statute of Limitations. We are dealing here with a statute that limits the employer to the right to intervene, but it specifically provides that the employer may “at any time [after the employee has filed suit] join in the action upon his motion so that all orders of court after hearing and judgment shall be made for his protection.” In Galvan v. John Caretti Co., 6 Ill.App.3d 894, 287 N.E.2d 90, the right of the employer to intervene even after judgment in favor of the employee was upheld. And in Arnold Lies Co. v. Legler, 26 Ill.App.2d 365, 167 N.E.2d 813, the court stated that “the employer may intervene at any stage up to the satisfaction of the judgment.”

• 5,6 The defendant also contends that the order denying intervention is not appealable because it omits the special findings required of Supreme Court Rule 304(a) (Ill. Rev. Stat. 1971, ch. 110A, sec. 304(a)), which states in part:

“If multiple parties or multiple claims for reUef are involved in an action, an appeal may be taken from a final judgment as to one or more but fewer tiran aU of the parties or claims only if the trial court has made an express written finding that there is no just reason for delaying enforcement or appeal.”

In our view the rule has no application here because lUinois BeU was not yet a party to the proceedings. While a number of cases involving denial of a petition to intervene have been appealed, the question of the appealability of the order has not been raised by the Htigants or, importantly, the courts of review themselves, indicating, it may be fairly argued, tacit recognition that the order is final. (See City of Chicago v. Harris Trust & Savings Bank, 12 Ill.App.3d 808, 299 N.E.2d 57; People v. Thompson, 101 Ill.App.2d 104, 242 N.E.2d 49; City of Chicago v. Zik, 63 Ill.App.2d 445, 211 N.E.2d 545; Wert v. Burke, 47 Ill.App.2d 453, 197 N.E.2d 717.) The order denying the petition to intervene completely adjudicated the only immediate claim brought before the comt by Illinois Bell, and in our view it is a “final judgment” within the meaning of Supreme Court Rule 301. For tírese reasons the order denying the petition to intervene is reversed.

Order reversed.

BURKE and GOLDBERG, JJ., concur.


author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Durane Gant (Impleaded), Defendant-Appellant.
    (No. 58303;
    First District (1st Division)
    February 19, 1974.

      James J. Doherty, Public Defender, of Chicago (Shelvin Singer, Richard A. Kavitt, and Robert Gevirtz, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Alan brothers, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The defendant, Durane Gant, was indicted for robbery in violation of Ill. Rev. Stat. 1969, ch. 38, par. 18—1. At a bench trial he was found guilty and sentenced to the Illinois State Penitentiary for not less than three nor more than five years. He appeals from that judgment, seeking outright reversal of his conviction or, in the alternative, that we either vacate his sentence and remand for resentencing or modify his sentence so as to conform to the Illinois Unified Code of Corrections. Ill. Rev. Stat. 1973, ch. 38, par. 1005—8—1(c) (3).

The defendant contends, first, that the evidence was not sufficient to establish that anything belonging to the complainant was taken from her and that such taking was by the use of force or intimidation; second, that the in-court identification of the defendant by the two police officers was so tainted by discrepancies with their earlier testimony as to render it unworthy of belief; and, third, that the court erred in sentencing the defendant, in that it assumed and took into consideration that the defendant’s action was a contributing factor in the complainant’s death, which was neither charged nor proved, and that the minimum sentence imposed exceeds that provided under the Illinois Unified Code of Corrections. We conclude that the third contention has merit but that the first two do not. We therefore modify the sentence and as, so modified, affirm the judgment.

On April 9, 1971, at approximately 11:00 P.M., two police officers on patrol in a marked squad car near the L station located at 21st Street and Pulaski Road noticed a woman struggling with two men. Using both of his hands, one of the men was dragging the woman by her hair while the other pulled her purse away from her and held it on his left arm. His right arm was around her neck. The officers got out of their car, which was less than 100 feet away, and ran toward the scene of the struggle. The two men saw the officers and attempted to run away. One of them was unsuccessful—Ronald Bates, a juvenile who was caught with the woman’s purse. The other eluded capture after being chased for some distance by one of the officers.

Ronald Bates, Durane Gant’s co-defendant, told police at the time of his arrest that Gant was the man who got away. At the trial, he testified that he and Gant had disembarked from the L on their way home from visiting someone when Gant “snatched the lady’s purse.” A short scuffle then ensued before the arrival of the police. Bates then attempted to dissociate himself from Gant’s act, claiming that he did not intend to steal her purse and that he was “only looking out for her.” Gant later turned himself in to the police when he learned that he was wanted by them.

The complaining witness died two days after the incident but Bates and Gant were not charged with any offense related to her death. At the Coroner’s Inquest, the police officers testified that they were unable to describe in detail the face of the man who escaped. Yet at the trial of Bates and Gant, they positively testified that they saw his face and recognized Gant as tire man who got away.

Defense counsel for Gant argued at the trial that the officer’s identification of Gant was tainted as a result of their prior testimony at the Coroner’s Inquest. He also argued that Bates’ testimony was self-serving and incompetent since Bates was an alleged accomplice. He concluded his argument by claiming that the State had therefore failed to prove his client guilty beyond a reasonable doubt.

But the trial court thought differently and both were found guilty of robbery. At the hearing in aggravation and mitigation, the judge stated, determining the sentence Gant should receive:

“I take into consideration in arriving at my judgment I am going to deny probation and sentence both these men to the penitentiary, also the fact that this woman did die and although apparently there was not sufficient evidence to charge them with the murder or involuntary manslaughter whatever the case may be, certainly this event was a contributing factor to her death, traumatic shock, and they have that to carry with them and I am taking that into consideration, Mr. Howard, in imposing sentence in this case.”

Gant was then sentenced to a term of not less than three nor more than five years in the Illinois State Penitentiary.

Passing to the defendants first contention—that the evidence was not sufficient to establish that anything belonging to the complainant was taken from her and that such taking was by the use of force or intimidation—the defendant’s said argument is essentially bottomed on the premise that since the complainant died before the trial and did not testify, there was no testimony that she owned and was carrying a purse, that it was taken from her by the defendants and that such taking was by force. Nor was any purse belonging to her introduced at the trial.

But this is a non-evident major premise fallacy in that there is no legal requirement that these facts be established only by the owner— complainant’s own testimony or that her purse be produced at the trial. Here the facts were established not only by the two officers who saw the purse pulled from her possession by Bates but also by Bates’ testimony that Gant was with him and took the purse from her. And where, as here, two persons work together as a team, it is immaterial which of the two actually pulled the purse from her (People v. Szatkowski (1934), 357 Ill. 580, 583, 192 N.E. 561). We therefore conclude and hold that the evidence sufficiently established that a purse, presumptively hers, was taken from the complainant’s possession by one of the two men operating as a team and that such taking was accomplished by the use of force.

Passing now to the second contention—that the in-court identification of the defendant Gant by the two police officers was so tainted by discrepancies with their earlier testimony that it is unworthy of belief— this ignores two important factors. The first is that, despite some minor inconsistencies, both officers testified at the trial that Gant was the second man in the robbery, and it is the trial court’s job to decide the facts, which it did here and such findings are not lightly to be set aside on appeal. (People v. Mitchell (1968), 101 Ill.App.2d 380, 386, 243 N.E. 2d 358.) The second factor ignored by the defendant’s said contention is that Bates testified that the defendant Gant was with him during the incident and was the one who pulled the purse from the complainant’s arm. As our Supreme Court said in People v. Norwood (1973), 54 Ill.2d 253, 256, 296 N.E.2d 852:

“ ‘The testimony of an accomplice is competent evidence, and, although uncorroborated, may be sufficient to sustain a conviction if it is of such a character as to prove guilt beyond a reasonable doubt. It is always, however, subject to grave suspicion and should be acted on with great caution. (People v. Harvey, 321 Ill. 361; People v. Johnson, 317 id. 430.) A defendant against whom an accomplice in the crime testifies is therefore entitled to cross-examine such witness and interrogate him freely as to his motives, bias and interest, his relation to the crime and persons connected with it, and any matters which tend to impeach his fairness or impartiality.’ People v. Maggio (1927), 324 Ill. 516, 529; see also, People v. Baker (1959), 16 Ill.2d 364; People v. Derrico (1951), 409 Ill. 453; People v. Moshiek (1926), 323 Ill. 11.”

Thus, the accomplice’s testimony should be evaluated in terms of its weight and credibility, which is a determination lying peculiarly within the province of the trier of fact, whose judgment will not be set aside on review unless it is plainly apparent that the defendant was not proven guilty beyond a reasonable doubt (People v. Nettles (1969), 107 Ill.2d 143, 153-154, 246 N.E.2d 29). For reasons unknown to us, the defendant chose to forego cross-examination of Ronald Bates. While Bates’ testimony differs in many respects from that of the officers’, nevertheless, as far as we have been able to determine from searching the record, his testimony was clear and convincing on these two critical points: a purse was snatched from the woman and Durane Gant, the defendant, was involved.

We therefore conclude and hold that the evidence fully established that the defendant Gant was one of the two who, as a team, robbed the complainant of her purse.

We therefore affirm the defendant’s conviction.

This brings us to the defendant’s third contention—that the court erred insofar as the sentence is concerned in that it assumed and took into consideration that the defendant’s action was a contributing factor in the complainant’s death two days later, which was neither charged nor proved; and that the sentence imposed exceeds that now provided under the Illinois Unified Code of Corrections. Ordinarily, we would presume that a trial judge would disregard incompetent evidence at a presentence hearing (People v. Spicer (1970), 47 Ill.2d 114, 264 N.E.2d 181), but where the record shows that the judge allowed his determination of what sentence to impose to be affected by incompetent evidence, then we must vacate the sentence (People v. Grigsby (1966), 75 Ill.App. 2d 184, 220 N.E.2d 498). The record in the present case reflects that the trial judge did allow Iris determination of the sentence to be affected by the death of the complaining witness for which he believed the defendants to be in some way responsible. But there was absolutely no evidence adduced at trial which would support such a belief. The defendant was “clothed in a presumption of innocence” regarding the death of the complaining witness, and it was therefore prejudicial to him when the trial judge imposed a sentence based at least in part on his belief that the defendant was somehow responsible for her death (Grigsby, supra, at 193).

The defendant may also avail himself of the present sentencing provisions of the Unified Code of Corrections because his appeal was pending on the effective date of this statute and because the sentence for robbery is less under it than under the prior law. People v. Chupich (1973), 53 Ill.2d 572, 581-584, 295 N.E.2d 1.

We therefore reduce the minimum sentence from three years to twenty (20) months. This constitutes a fair and equitable reduction of the sentence and complies with the Unified Code of Corrections. In all other respects, the judgment is affirmed.

Sentence modified and, as so modified, judgment affirmed.

BURKE and GOLDBERG, JJ„ concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Manuel B. Arenibar, Defendant-Appellant.
    (No. 58677;
    First District (1st Division)
    February 19, 1974.
    James J. Doherty, Public Defender, of Chicago (John Kalnins and Phillip A. Olson, Assistant Public Defenders, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Manuel B. Arenibar, was found guilty after a bench trial of theft (Ill. Rev. Stat. 1971, ch. 38, par. 16—1), and placed on one year probation on the condition that he serve the first six months in the House of Correction.

The defendant contends that he was not proved guilty beyond a reasonable doubt; that there was a fatal variance between the allegations of the complaint and the proof; and that the trial court improperly considered hearsay testimony.

The complaint alleged that the defendant stole "[a watch], the property of Maria Vergio, with the intent to deprive the said owner, Maria Vergio, permanently of the use and benefit of said property.”

The defendant, when first arrested, was wearing a child’s watch. No watch was introduced in evidence, but the watch taken from Mrs. Vergio’s home fit the description of the one worn by the defendant at the time of the arrest and, Mrs. Vergio testified, was the property of her grandson.

In our view there is a fatal variance between the allegation that Maria Vergio was the owner of the watch and the proof that her grandson was the owner. The State relies on two cases: People v. Bristow, 8 Ill.App.3d 805, 291 N.E.2d 189; and People v. Henry, 68 Ill.App.2d 48, 214 N.E.2d 550. In Bristow, the burglary indictment alleged ownership of a building in "Triangle Housing Association, a corporation.” The evidence showed ownership in Northwestern University which had leased the property to the “Housing Association of Northwestern University, Chapter of Triangle, an Illinois corporation.” In Henry, the burglary indictment alleged ownership in Joanna C. Dunne and Leslie Confort and recited the address of the building. The proof showed that at the time of the crime Confort no longer had any interest in the building. Neither case is persuasive authority here. In Bristow, it is apparent that the indictment and proof referred to one entity although by different names. In Henry, the building was specifically identified by address and the ownership of Joanna Dunne established. The court held the allegation of ownership in Confort, under the circumstances, was surplusage.

In this case, unlike Bristow, the complaint refers to one individual and the proof to another; and unlike Henry, there is no proof of any ownership in Maria Vergio.

"The ownership of property must be proved as laid in an indictment for larceny, and, since larceny is an offense against the owner of property, the owner’s name becomes material to a statement of the offense in the indictment if known, and must be proved as alleged.” (People v. Roach, 1 Ill.App.3d 876, 877, 275 N.E.2d 309.) See also People v. Csontos, 275 Ill. 402, 114 N.E. 123, involving reversal of a conviction for larceny in a factual situation similar to this case.

In view of our determination of this issue, it is unnecessary to consider the other points raised by the defendant. The judgment of the circuit court is reversed.

Judgment reversed.

GOLDBERG and HALLETT, JJ., concur.


author: Opinion by Mr. JUSTICE BURKE.

text:
    M. Lucille Hardin, Plaintiff and Counterdefendant-Appellee, v. Calvin L. Hardin, Defendant and Counterplaintiff-Appellant.
    (No. 59047;
    First District (1st Division)
    February 19, 1974.
   Opinion by Mr. JUSTICE BURKE.

McCarthy, Scheurich, Duffy & McCarthy, of Chicago (John M. Duffy and Stephen A. Snakard, of counsel), for appellant.

No brief for appellee.


author: Mr. JUSTICE DOWNING

text:
    Ashland Savings & Loan Association, Plaintiff-Appellee, Cross-Appellant, v. Aetna Insurance Company, Defendant, Cross-Appellee —(Insurance Company of North America, Defendant-Appellant.)
    (No. 56473;
    First District (2nd Division)
    February 19, 1974.

      Rabens, Fonnusa & Glassman, of Chicago (George C. Rabens and Marvin Glassman, of counsel), for plaintiff-appellee and cross-appellant.
    Baker & McKenzie, of Chicago (Francis D. Morrissey, John W. Dondanville, and Peter J. Mone, of counsel), for defendant-appellant.
    Clausen, Hirsh, Miller & Gorman, of Chicago (John P. Gorman, Stephen D. Marcus, William J. Sneckenberg, and James T. Ferrini, of counsel), for defendant, cross-appellee.
   Mr. JUSTICE DOWNING

delivered the opinion of the court:

This is an appeal from the decisions of the circuit court in a declaratory judgment action filed by plaintiff Ashland Savings & Loan Association (hereinafter Ashland) alleging breaches of contracts of insurance plaintiff had with defendant-cross-appellee Aetna Insurance Company (hereinafter Aetna) and defendant-appellant Insurance Company of North America (hereinafter INA). Briefly, the complaint alleged in pertinent part that INA insured Ashland against loss and damage by fire to a certain building and that Aetna insured Ashland, under another policy, against loss and damage resulting from the insured’s failure to effectively provide insurance coverage for the building, and then prayed that the court determine which defendant was obligated to Ashland.

INA filed a motion for summary judgment asserting that its policy with Ashland had been terminated prior to the date of the alleged loss. Aetna also filed a motion for summary judgment alleging that the fire policy issued by INA for the coverage of loss to Ashland’s building had been in force at the date of the alleged loss, and that, therefore, Aetna was not liable to pay under the terms of its policy with Ashland.

The court below entered orders granting Aetna’s motion for summary judgment and denying INA’s motion for summary judgment, finding, with respect to INA, that its policy with' Ashland was in full force and effect on the date of the alleged loss, in that the policy had not been effectively cancelled in keeping with the provisions of 12 U.S.C.A. § 1749 bbb—3 (1969), a part of the National Insurance Development Program. Thereafter, the court below ordered that judgment be entered for Ashland against INA in the amount of $214,990.27. INA appeals from those decisions in the court below. In addition, Ashland brings a cross-appeal against Aetna, requesting that should this court find that INA’s policy had been effectively cancelled prior to the date of the damage to Ashland’s property, then the court should further find that Aetna is liable to Ash-land under the terms of the errors and omissions form of jhe policy issued to Ashland.

While INA assigns a number of errors on appeal, we are of the opinion that the only issue necessary to decide is whether the trial court acted with propriety in entering the orders granting Aetna’s motion for summary judgment and denying that of INA. Our finding on this issue will be dispositive of the appeal.

The facts pertinent to our decision are as follows. Ashland, a State of Illinois chartered savings and loan association with offices in Chicago, owned and operated an apartment building at 5054-58 No. Winthrop Avenue in Chicago. On October 21, 1966, Ashland and INA entered into a contract of insurance—which, among other things, provided Ashland protection against fire loss. The policy included the following pertinent provisions:

“This Policy covers from October 21, 1966 to until cancelled noon, Standard Time, at Insured’s Address.
* * *
If this policy is written under the Annual Payment of Premium Plan it shall not terminate until cancelled by the Insured or the Company. The premium hereunder shall be payable annually in advance. The first annual premium is set forth on Page 1 and becomes due and payable on the inception date of this policy. The premium for each successive annual period shall be computed to reflect current conditions and become due and payable on the anniversary date.
* * *
This policy shall be cancelled at any time at the request of the insured, in which case this Company shall, upon demand and surrender of this policy, refund the excess of paid premium above the customary short rates for the expired time. This policy may be cancelled at any time by this Company by giving to the insured a five days’ written notice of cancellation with or without tender of the excess of paid premium above the pro rata premium for the expired time, which excess, if not tendered, shall be refunded on demand. Notice of cancellation shall state that said excess premium (if not tendered) will be refunded on demand.”

The INA policy, then, was renewable by the payment of yearly premiums, its anniversary date being October 21; the policy was renewed on the anniversary date in 1967 and 1968. On October 2, 1969, in accordance with the provisions of the policy, INA mailed to Ashland a notice of cancellation informing Ashland that its policy was to be can-celled effective October 21, 1969.

The cancellation notice sent to Ashland read in part:

“You are notified that we are herewith cancelling your policy indicated below, in accordance with its terms, and all liability thereunder will terminate, effective as stated below. * * * Cancellation effective the 21st day of Oct. 1969 at the hour stated in the policy for the inception of the policy.”

Subsequent to the notice of cancellation, no premium was tendered or paid by Ashland to INA.

Ashland, on February 1, 1967, entered into a special multi-peril policy with Aetna, which policy was for a three year term. The policy provided Ashland insm-ance in the amount of $200,000 with respect to any one mortgage under an “Errors and Omissions Form,” the details of which are not pertinent to this decision.

Ashland’s ownership of the subject building came about as the result of a foreclosure which it had initiated. On November 30, 1969, a fire occurred in Ashland’s apartment building, resulting in damage to the building and its contents, as well as loss of rent. It was this damage which led to this litigation.

Sometime in 1970, Ashland filed a breach of contract action against Aetna in the United States District Court for the Northern District of Illinois, Eastern Division. As originally conceived in the Federal action, Ashland contended that Aetna was hable under its policy, which was in effect on November 30, 1969. Subsequently, Ashland amended its complaint and joined INA as a party defendant. In the amended Federal action Aetna contended that INA’s notice of cancellation mailed October 2, 1969 was ineffective and invalid since INA failed to comply with the provision of the insurance code of the State of Illinois which required that insurance companies after one year coverage must advise the insured their reasons for cancellation. This statutory provision which became effective September 22, 1969 is chapter 73, section 755.1b of the 1969 Illinois Revised Statutes. Aetna, contending that INA’s policy was thus in effect on November 30, 1969, moved for a summary judgment, as did INA, which relied on its theory that the policy had expired. Ashland moved for a judgment on the pleadings asserting it was entitled to recovery from either Aetna or INA.

The Federal District Court abstained from deciding if the said Illinois statute was applicable in order to avoid a premature decision on a Federal constitutional issue when the state courts might reduce or eliminate tire problem, and in order to avoid unnecessary interference with a State’s internal policy in an important area. Consequently, the Federal Court denied all pending motions for summary judgment or judgment on the pleadings and dismissed Ashland’s action.

Thereupon, Ashland brought the action which is the subject of the instant appeal. Ashland, in its complaint for declaratory judgment in the circuit court against both Aetna and INA, asserted that INA claimed its cancellation was in accordance with the provisions of its policy; that Aetna will not honor its policy contending that INA’s notice of cancellation was ineffective in that: (1) INA had failed to comply with the 30-day notice of cancellation requirement of section 755.1b of chapter 73; (2) the statutory requirement for cancellation of section 755.1a; and (3) a February 19, 1969, order of the Director of the State of Illinois Department of Insurance with respect to the timing of cancellation and notification of procedures for obtaining substitute insurance.

INA, in its answer, asserted that the foregoing provisions in the complaint were legal conclusions unfounded in fact or law, and denied the allegation as to the effect of the alleged February 19, 1969, order. INA further asserted that sections 755.1a and lb did not affect the termination of the contract in question and, if they did, they would be unconstitutional. By way of an affirmative defense, INA relied upon its policy and the cancellation pursuant thereto.

Aetna filed an answer admitting that its policy was in full force and effect, and an affirmative defense that it had no liability for the reasons ascribed to Aetna in Ashland’s complaint. Aetna simultaneously filed a motion for summary judgment, and a legal memorandum with exhibits which included, inter alia: answers to interrogatories by INA in the Federal District Court action; copies of correspondence between INA and Ashland re notice of the subject fire; as well as a blank form entitled:

“ILLINOIS PROPERTY INSURANCE PLACEMENT FACILITY ARTICLE XVI
ACCEPTANCE OF ARTICLES OF AGREEMENT BY MEMBERS”
which form provided in part:
* # #
“As respects risks eligible for the Program, the Insurer agrees that with respect to cancellation or non-renewal initiated by the Insurer to be effective after October 29, 1968, it will give the policyholder (except in cases of non-payment of premium or evidence of incendiarism), 15 days to avail himself of the Program, and the Insurer shall, in writing explain to the policyholder the procedures for making application under the Program.
Accepted and ratified this -—day of September,
1968.
INSURER
By-
AUTHORIZED SIGNATURE ”

In its legal memorandum (signed in the name of the law firm and not under oath), Aetna characterizes the aforesaid exhibit as a copy of a directive from the State director of insurance dated February 19, 1969, and still in full force and effect, with which INA’s cancellation of the Ashland policy was not in compliance. Therefore, Aetna urged that the “puiported cancellation notice is a nullity and void ah initio.”

INA filed a motion for summary judgment, with affidavits, based on the cancellation provision of the policy, the written notice of cancellation and the assertion that, as of November 30, 1969, its policy had not been in effect.

Thereafter, Ashland filed a reply to the answers of both Aetna and INA and a paper entitled “Response of Plaintiff to Motion of Insurance Company of North America For Summary Judgment.” In Ashland’s “response,” there is raised, for the first time—either in tire Federal action or in prior pleadings in this case—the suggestion that 12 U.S.C.A. § 1749 bbb—3 required INA to inform Ashland, in its notice of cancellation, of the procedures for obtaining an inspection under the Federal plan.

The trial court, after hearing extensive arguments of all counsel on the various motions, stated that the INA policy was not properly can-celled because it did not comply with the Federal statute. Thereupon, the trial court entered a summary judgment in favor of Aetna; denied the INA motion for summary judgment; held that INA’s policy was in fuU force and effect on November 30, 1969, the date of the loss; and, after a further hearing, entered judgment against INA in the amount of $214,990.27, which included interest from the date of the loss, plus costs of the suit.

Although the record did not specificaUy indentify the Federal statute upon which the trial court based its conclusion, our review of the record indicates it must have been referring to the said section 1749 bbb—3. This statute, effective August 1, 1968 (Pub. L. 90—448, Title XI, §-1103, 82 stat. 558), is known as the “FAIR” plan and requires each insurer reinsured under the Federal statute to cooperate with the State insurance authority in establishing and carrying out statewide plans to assure fair access to insurance requirements.

The Federal schema for the “FAIR” plain was adopted in Illinois by virtue of the enactment, on July 30, 1968, of chapter 73, sections 1065.69—1065.78 of the 1969 Illinois Revised Statutes, and the creation, pursuant to the mandate of section 1065.72 of chapter 73, of the Illinois Property Insurance Placement Facility effective September 16, 1968. Those statutory sections read in pertinent part:

“§ 1065.69 Purpose
This article is to make basic property insurance available in urban areas and to public educational institutions through the establishment of an Industry Placement Facility for administering a FAIR Plan (Fair Access to Insurance Requirements), and a Joint Reinsurance Association for the equitable distribution and placement of risks among companies transacting property insurance business in the State of Illinois.
§ 1065.72 Industry placement program Within 30 days after the effective date of this Article, * * * all insurers engaged in writing in this State, on a direct basis, basic property insurance or any component thereof in multi-peril policies, must establish an Industry Placement Facility to formulate and administer a Program for the equitable apportionment among such insurers of basic property insurance which may be afforded applicants in urban areas whose property is insurable in accordance with reasonable underwriting standards, but who, after diligent effort, are unable to procure such insurance through normal channels. * * *”

Subsequent to the enactment of these statutes, insurers conducting business in the State of Illinois were required to execute and file with the director of insurance of the State a document wherein they agreed to the requirements of the “FAIR” plan for the canceUation of policies.

As previously noted in this opinion, an unsigned, undated copy of a document allegedly issued by the State director of insurance was attached to Aetna’s memorandum (filed in the trial court March 30, 1971) in support of its motion for summary judgment. On appeal, Aetna, as part of an appendix to its brief filed before this court, has included copies of certain documents which do not form a part of the record on appeal. Aetna requests, however, that the court take judicial notice of these documents in its consideration of the matters presented here for review. The documents are: (1) a copy of the document referred to above (see page 6), entitled “Article XVI,” which purports to be a copy of the Article as accepted and ratified, on October 1, 1968, by INA as “Insurer,” pursuant to the “Authorized Signature” of one “A. Richard Heilman”; and (2) a copy of a document which purports to be a certification by the director of insurance of the State of IHinois, dated January 8, 1973, that the instrument purportedly executed by “A. Richard Heffman” was on file and formed a part of the records of the Department of Insurance as of January 8, 1973.

It is Aetna’s contention on appeal that the document purportedly accepted and ratified by INA on October 1, 1968 was an agreement' by INA to take steps designated to assist insureds (including Ashland) in the transfer of their business to the IHinois Property Insurance Inspection and Placement Program, and that because INA did not notify Ashland of the existence of the “FAIR” plan and of the procedure for procuring insurance thereunder in INA’s October 2, 1969 notice of canceUation, said notice did not cancel Ashland’s policy.

The doctrine of judicial notice operates to admit into evidence, without formal proof, those facts which are matters of common and general knowledge and which are established and known within the limits of the jurisdiction of the court. (Palmer v. Mitchell (1st Dist. 1965), 57 Ill.App.2d 160, 167, 206 N.E.2d 776; 18 I.L.P., Evidence, §§1—9.) Section 48b of chapter 51 of the Illinois Revised Statutes (Ill. Rev. Stat. 1971, ch. 51, par. 48b) provides that courts of appeHate jurisdiction shaH take judicial notice of such matters as courts of original jurisdiction are required to take. (See Town of Normal v. Witham (4th Dist. 1968), 91 Ill.App.2d 262, 266, 233 N.E.2d 576.) The phrase “judicial notice,” however, means no more than that a court will bring to its aid and consider —without proof of facts—its knowledge of those matters of public concern which are known by all weH-informed persons. 31 C.J.S., Evidence § 6, et seq.

With respect to the documents of which Aetna would have this court take judicial notice, we are of the opinion that they are not such matters of common and general knowledge, established and known within the jurisdiction of either this court or that of the court below, which would meet the requirements of the pertinent law of this State.

INA, in its brief and in the oral argument before this court, objected to this court’s taldng judicial notice of such documents, pointing out that factual issues might be raised with respect to such documents and that the appeHate court is not the forum in which to first present such evidence. We agree. This court will not take judicial notice of critical evidentiary material not presented in the court below, and this is especiaHy true of evidence which may be significant in the proper determination of the issues between the parties. Judicial notice cannot be extended to permit the introduction of new factual evidence not presented to the trial court.

The entry of summary judgment in favor of Aetna, and the denial ol same on behalf of INA, presents the question of whether the court below erred in holding, as a matter of law, that Ashland’s insurance policy with INA had not been properly cancelled in keeping with the provisions of 12 U.S.C.A. § 1749 bbb—3 (1969).

Courts of this State have often addressed themselves to the standards governing the entry of summary judgments pursuant to section 57 of the Illinois Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 57). We commented at length on these standards in Lumbermens Mutual Casualty Co. v. Toths (2d Dist. 1968), 104 Ill.App.2d 80, 243 N.E.2d 40:

“The principles applicable to a motion for summary judgment under section 57 of the Civil Practice Act (Ill. Rev. Stat. 1967, c. 110, par. 57) are well defined. Summary judgment is a procedure to be encouraged (Allen v. Meyer, 14 Ill.2d 284, 292, 152 N.E.2d 576 (1958)); however, it is a remedy to be awarded with some caution so as not to preempt the right to a trial by jury or the right to fully present the factual basis for a case where a material dispute may exist. Ruby v. Wayman, 99 Ill.App.2d 146, 240 N.E.2d 699, 700 (1968); Solone v. Reck, 32 Ill.App.2d 308, 310, 311, 177 N.E.2d 879 (1961); Tezak v. Cooper, 24 Ill.App.2d 356, 362, 363, 164 N.E.2d 493 (1960).
Section 57 provides that a summary judgment should be rendered if the pleadings, depositions and admissions on file, together with the affidavits, if any, ‘show that there is no genuine issue as to any material fact, and that the moving party is entitled to a judgment or decree as a matter of law.’
Courts have construed this section to mean that in determining if there is a genuine issue as to any material fact, inferences may be drawn from the facts which are not in dispute, and if fair-minded persons could draw different inferences from these facts then a triable issue exists. Ruby v. Wayman, supra, 700, 701; Peirce v. Conant, 47 Ill.App.2d 294, 300, 198 N.E.2d 555 (1964).
In making the above determination on a motion for summary judgment, the court must construe the pleadings, depositions and affidavits most strictly against the moving party and most liberally in favor of the opponent. Solone v. Reck, supra, 311. A summary judgment should then be granted where the moving party’s right thereto is clear and free from doubt. Ruby v. Wayman, supra, 701; Palier v. Dreis & Krump Mfg. Co., 47 Ill.App.2d 334, 338, 198 N.E.2d 521 (1964); Solone v. Reck, supra, 310.” Lumbermens at pages 87-88. See also 23 I.L.P., Judgments, §§ 71-77.

In this case factual questions pertaining to the disputed articles of agreement were in fact in controversy before the trial court by virtue of the pleadings. The factual questions were apparently not considered important by the attorneys for Aetna or Ashland at the time of the hearing on the motion and certainly were not called to the court’s attention. Now, as the result of the changing legal theories which have enmeshed this controversy, the significance of the disputed articles of agreement, the factual circumstances surrounding it, and the resultant legal effect of all such evidence require that this cause be remanded to the trial court. In this fashion, the parties can finally marshall all the evidence and crystalize their legal theories. Justice, for all the parties, will be better served with a proper record in the trial court. We find that there existed before the trial court triable issues of fact, as explained before, which, in our opinion, precluded the entry of summary judgment in Aetna’s favor. So finding, we reverse all the judgments entered by the court below, and remand this case to the said court for proceedings not inconsistent with this opinion. In so doing we are in no way expressing any opinion with respect to the applicability of any of the legal theories presented by any of the parties.

The orders and judgments of the circuit court of Cook County heretofore entered in this matter are reversed, and all matters raised on this appeal are remanded as directed herein.

Reversed and remanded.

HAYES, P. J., and STAMOS, J., concur.

        Ashland Savings & Loan Association v. Aetna Insurance Company (N.D. Ill. 1971), 322 F.Supp. 82.

       The record on appeal in this case was filed October 15, 1971, many months prior to the certificate of January 8, 1973.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Melvin Bailey, Defendant-Appellant.
    (No. 57088;
    First District (2nd Division)
    February 19, 1974.

      Kenneth L. Gillis and Jack P. Rimland, both of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago (Elmer C. Kissane and Patrick J. McNally, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

A sixteen-count indictment charged defendant Melvin Bailey and two codefendants, Andrew McChristian, Edward Dinkins, with aggravated assault and aggravated battery on five persons, attempts to murder and a conspiracy to murder the same five people. Prior to their trial, on motion of the State, the charges of aggravated assaults and aggravated batteries were dismissed. Defendant, McChristian and Dinkins then went to trial before a jury on the remaining counts.

At tire close of the State’s evidence, the trial court directed the acquittal of Dinkins on all the charges. However, the State’s cases against defendant and McChristian went to the jury. It returned verdicts that acquitted McChristian of the attempts to murder but found him guilty of conspiracy. Defendant was found guilty of the five attempts and the conspiracy; the trial court sentenced him to serve six concurrent terms of ten to fifteen years. McChristian took a separate appeal; and in an opinion which contains a detailed statement of the facts from which the charges arose, we have today reversed his conviction. People v. McChristian, 18 Ill.App.3d 87.

In this appeal, the only substantive issue is whether the State’s impeachment of a court witness introduced hearsay evidence that prejudiced defendant’s right to a fair trial. Since this issue is raised from events that occurred at the trial, and our opinion in McChristian states the facts which underlie the indictment, we will not restate the events that gave rise to the charges, except as our discussion of the issue may require.

I.

At defendant’s trial, the third witness called by the State was David Barksdale, one of five persons named in the indictment as victims of the assaults, the batteries, the attempts and the conspiracy to murder. Barks-dale refused to testify because he feared self-incrimination. Because he invoked his right not to incriminate himself, the State petitioned the trial court to grant him immunity. This was done, and immediately thereafter, one of the assistant state’s attorneys made an oral motion that Barksdale be called as a courts witness. The defendants objected, but after a hearing outside the jury’s presence, the motion was granted with the understanding that the trial judge was to tell the jury that Barksdale was a court’s witness, one whose testimony was not vouched for either by the prosecution or the defense.

Barksdale then testified and in answer to questions asked by an assistant state’s attorney, told the jury that on the evening of May 8, 1968, he drove his automobile past 6526 South EHis Avenue, Chicago, and shooting of guns erupted. He said he did not know who shot at his automobile. Although he said he knew the defendant, he denied seeing him on the evening of May 8, 1968, at or near 6526 South Ellis. In answer to a question, Barksdale said that he saw McChristian and Dinkins at the scene of the shooting, but he did not see them fire any guns at his automobile. He denied seeing either Dinkins or McChristian with a gun in his possession. Barksdale was asked whether at a police station, after the shooting, he saw defendant and McChristian and had a conversation with them. His answer was that he saw them there, but that “they remained silent.”

Barksdale was then asked whether in the state’s attorney’s office, shortly after the May 8, 1968, shooting, he spoke to an assistant state’s attorney and on that occasion said that defendant, McChristian and Dinkins “shot at me on May 8”. Barksdale admitted making the statement, but said that what he said on that occasion was a lie. Then, Barks-dale was asked whether eight months before the trial he was in the state’s attorney’s office, where, in the presence of one of the three policemen, he told the assistant state’s attorney in the case that defendant and McChristian shot at him on May 8, 1968. Barksdale’s answers were at first evasive; but he was pressed by questions aimed at determining whether it was time he had said, eight months before the trial, that the defendants had fired at him on May 8, 1968. After a number of questions to which he gave unresponsive answers, Barksdale said that he made the staatement; but at the time, he was angry, and “I would have said anything.” Next, Barksdale was asked whether a week before the trial he had not made statements to an assistant state’s attorney that defendant, McChristian and Dinkins had guns in their possession on May 8, 1968, and had shot at him. He said he had because he was angry at one of the policemen and “1 was still mad at Bailey [the defendant].” Then, he was asked whether he had been questioned the day of the trial concerning the shooting incident of May 8, 1968. Barksdale said he had. The assistant state’s attorney who was questioning him asked Barksdale, “And did you tell me this afternoon that Melvin Bailey shot at you on May 8, 1968?” Barksdale answered, “I told you that because I came down to court—I am in court.” The assistant state’s attorney then turned to the trial judge and asked, “Your Honor, may I just have an answer?” Barksdale was directed by the trial court to answer the question. His response was, “Yes.” Further questions were put to Barksdale concerning McChristian. After answers, some evasive, some unresponsive, the assistant state’s attorney asked Barksdale, “Did you tell Mr. Novelle and myself today, this afternoon, that you saw Mr. McChristian with— Mr. Dinkins with a rifle in the 6500 block of South Ellis?” Barksdale answered, “Yes.”

Barksdale was then asked whether sometime after May 8, 1968, he had not told an assistant state’s attorney, Matthew Walsh, about a conversation he had with defendant and McChristian in the area police station the evening of May 8, 1968, after the shooting. Barksdale was asked whether defendant had said to him, “I missed you this time.” After first making an unresponsive answer, Barksdale admitted telling Walsh about the conversation, but said he did so because he was angry. When asked if he told Walsh that McChristian had said to him, “We will get you next time,” Barksdale said that he did, but “I was still lying, though.” After being pressed by further questions concerning a conversation which the State claimed he had with defendant and McChristian the evening of May 8, 1969, Barksdale disclaimed recollection of it.

To impeach Barksdale, the State announced it was calling Matthew Walsh. There were objections by all the defendants. As a result, the trial judge agreed that before Walsh testified he would tell the jury

“* * * that while it is proper to impeach or discredit a witness by proving statements made by such witnesses at some other time and place, different from the testimony in this case on trial, still any statement that any witness may have made at such other time and place is not to be considered by you as any evidence as to the guilt or innocence of the defendant or any of them. Evidence that on some former occasion a witness made a statement different from or inconsistent with his testimony in this case should only be considered by you in deciding tire weight to be given that witness [szc].”

Defendants insisted on their objections, but Walsh was allowed to testify that in his office “* * * last Friday at approximately 1:15 P.M.,” Barksdale told him “that Bailey made a comment to him about the fact that they didn’t get him that night or they were sorry they didn’t get him. And McChristian began laughing and said, we will get you next time.” After several of defendants’ objections were overruled, Walsh was permitted to tell the jury that as Barksdale was leaving his office, he asked him, “* * * as I had once or twice during the conversation, * * * if what he was telling me was the truth. He indicated it was the truth and I aslced him at that time whether or not he could testify to the truth in court, and he shrugged his shoulders at that time. And I said, are you afraid of them, meaining—Walsh was interrupted by an objection of one defense counsel; and in response, the trial court ruled that “[t]he last part of the answer is stricken and the jury is instructed to disregard it.” Then Walsh was asked, “Did Mr. Barksdale tell you that what he told you, the—concern the facts in this case, was the truth?” Walsh answered, “Yes, he did.”

It is from this examination of Barksdale, and his impeachment through the testimony of Matthew Walsh, that defendant contends he was prejudiced by inadmissible hearsay evidence which the jury was allowed to hear and on which they returned their verdicts finding him guilty of five attempts to murder and conspiracy to murder five persons.

II.

In determining whether this contention is sound, we are constrained to observe that when Barksdale first testified, he told the jury that neither defendant, McChristian nor Dinkins, fired at him or his companions when on the evening of May 8, 1968, he drove his automobfie past 6526 South Ellis Avenue in Chicago. However, it was the State’s theory that this was not the truth. The truth, according to the State, was that the three defendans fired guns a Barksdale and his companions on the evening in question, a truth' which Barksdale had asserted to four assistant state’s attorneys. Therefore, to prove the truth of what Barksdale had asserted, the State, by the questions its attorneys asked him, and by Walsh’s testimony, established that Barksdale, out of court, had accused defendant, McChristian and Dinkins of shooting at his automobile, as the State claimed. This was hearsay evidence.

“Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.” (People v. Carpenter, 28 Ill.2d 116, 121, 190 N.E.2d 738; Wigmore on Evidence (3d ed. 1940), § 1361 et seq.; Cleary, Handbook of Illinois Evidence (2d ed. 1963), § 17.1.) It was not admissible. (People v. Hundley, 4 Ill.2d 244, 122 N.E.2d 568.) The only question is whether admission of this hearsay evidence prejudiced the defendant.

• 2 It has been held that when a witness is made a court’s witness, he may be cross-examined by either side; but his cross-examination should be strictly limited to the direct issue. (See People v. Kimbrough, 131 Ill.App.2d 36, 266 N.E.2d 431.) In this case, Barksdale was the only victim of the crime who appeared as a witness. He was made the court’s witness at the State’s request, and when he first testified, he gave evidence which, if believed by the jury, would have exculpated all the defendants on trial. For this reason, elementary fairness would dictate that the State could, within limits and with proper cautionary instructions, impeach Barksdale even with prior inconsistent statements he might have made. (See People v. Marino, 44 Ill.2d 562, 256 N.E.2d 770; People v. Tate, 30 Ill.2d 400, 197 N.E.2d 26.) However, in the attempt to impeach Barksdale, the State could not introduce hearsay evidence that bore directly on defendant’s guilt or innocence. (People v. McKee, 39 Ill.2d 265, 235 N.E.2d 625; People v. Collins, 49 Ill.2d 179, 274 N.E.2d 77; People v. Bacon, 2 Ill.App.3d 324, 276 N.E.2d 782.) Nor could the State impeach Barksdale on matters collateral to the issue before the jury. People v. Boulahanis, 394 Ill. 255, 68 N.E.2d 467; People v. Yocca, 84 Ill.App.2d 423, 228 N.E.2d 599.

We have examined the record and find that, contrary to the State’s argument in this appeal, the questions asked Barksdale concerning his out-of-court assertions were numerous and repetitious, all aimed at putting before tire jury his statements, made to four assistant state’s attorneys, that defendant, McChristian and Dinkins had fired on his automobile on the evening of May 8, 1968. Thus, in the attempt to impeach Barks-dale, the State put into evidence inadmissible hearsay that touched directly on defendant’s guilt of the crimes for which he was on trial. (See People v. Barragan, 337 Ill. 531, 169 N.E. 180; People v. Tunstall, 17 Ill.2d 160, 161 N.E.2d 300.) By the questions asked him and the answers that the State extracted from him, the jury was repeatedly told that on three occasions Barksdale had accused defendant, McChristian and Dinkins of firing at him and his companions on the evening in question. This was prejudicial evidence. See People v. Paradise, 30 Ill.2d 381, 196 N.E.2d 689.

The testimony of Matthew Walsh intensified the prejudicial effect of Barksdale’s cross-examination. Walsh told the jury that in their conversation, Barksdale told him that in the police station defendant admitted having shot at him the evening of May 8, 1968, and that McChristian laughed and said, “We will get you next time.” Then, Walsh, over defendant’s objection, was allowed to testify that he asked Barksdale whether what he said was the truth and Barksdale assured him that it was. It is true that, before Walsh testified, the trial court gave the jury an instruction which cautioned them about their consideration of any prior inconsistent statement of a witness. However, this instruction was confusing to say the least; tire inconsistent statements to which it referred were plainly prejudicial. Therefore, as we had occasion to say in People v. Kimbrough, 131 Ill.App.2d 36, 45, 266 N.E.2d 431, “We do not believe that the prejudicial effect of such evidence upon the jury could be effectively controlled by the court’s admonitions that [it] was being introduced solely for impeachment purposes.”

In People v. Grigsby, 357 Ill. 141, 191 N.E. 264, the State called a woman as its witness to prove that on the night of the shooting in question, the defendant came to her home and told her that he “had shot a couple of guys.” Preliminary questions disclosed that her testimony was not going to be satisfactory to the state’s attorney, who then asked leading questions. Objections to these were sustained by the trial court and the woman was withdrawn as a witness. A short time later, she was recalled and made the court’s witness. Then, for a purpose analogous to Walsh’s testimony in this case, she was subjected to cross-examination concerning statements she allegedly had made to the state’s attorney and his secretary, consistent with the State’s theory of what the defendant had told her the night of the shooting. The Illinois Supreme Court reversed the conviction, holding it was prejudicial error for the trial court to allow the State to cross-examine the witness on what was a collateral issue. We reach the same conclusion in this case. The issue before the jury was not whether Barksdale told the truth when he spoke to the four assistant state’s attorneys; the issue was whether defendant was guilty of attempts to murder Barksdale and his four companions and of conspiring with McChristian to do so. Therefore, the trial court erred in permitting the State to place before the jury hearsay evidence that prejudiced the defendant’s right to a fair trial. The judgment is reversed and the cause is remanded for a new trial. People v. Montgomery, 51 Ill.2d 198, 282 N.E.2d 138; People v. Hannah, 11 Ill.App.3d 232, 296 N.E.2d 387.

Reversed and remanded with directions.

HAYES, P. J., and DOWNING, J., concur.


author: Mr. JUSTICE LEIGHTON Mr. JUSTICE DOWNING

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Andrew McChristian, Defendant-Appellant.
    (No. 58436;
    First District (2nd Division)
    February 19, 1974.
    DOWNING, J., dissenting.
    James D. Montgomery, of Chicago (David Lowell Slader, of counsel), for appellant.

      Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Thomas G. White, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

A jury found defendant Andrew McChristian guilty of conspiracy to murder five persons. He was sentenced to serve seven to fourteen years. In urging us to reverse his conviction, he presents four issues for our review. However, we will review only one because, in our judgment, its resolution is dispositive of this appeal. The issue is whether the evidence proved, beyond a reasonable doubt, that defendant was guilty of the conspiracy charged in the indictment.

I.

On May 8, 1968, at about 9:30 P.M., near the intersection of East 65th Street and University Avenue in Chicago, three plain-clothes policemen stopped an automobile driven by David Barksdale, a youth who was known by the policemen as the leader of the Disciples, a street gang. In the automobile with Barksdale were four young men, William Gaddy, James Hall, Tyrone Withers and Mitchell Newton.. The officers, who were members of the Chicago Police Gang Intelligence Unit, searched the five, found no weapons, said a few words to them and then released the youths. Barksdale drove on and the three policemen, in an unmarked car, followed him, approximately three car lengths behind.

After a number of turns in and out of several streets, Barksdale entered Ellis Avenue at East 66th Street and proceeded north. When he was at or near 6526 South Ellis, he slowed down, stopped and raced the motor of his automobile. At the time, but without knowing that Barksdale and his companions were coming there, defendant and Melvin Bailey were at or near 6526 South Ellis. They knew each other; in fact, they were members of the Blackstone Rangers, a youth gang that was a rival of the Disciples. They knew Barksdale, could recognize his car when they saw it; and on the evening in question, had arrived at 6526 South Ellis together. A short time before Barksdale drove up, defendant heard someone shout, * * here comes David!”

At about that moment, from the west side of Ellis Avenue, as they later testified, the three policemen heard someone shout, “D’s!” They saw a number of youths on both sides of the street. They heard a shot. After a pause, several shots rang out from both sides of Ellis Avenue. One officer saw “* * * about ten or thirteen people firing [guns].”

Two of the officers saw a young man run in front of their car and fire a gun four or five times directly at Barksdale’s automobile. It was Melvin Bailey. The officers pursued him; and, while being chased, he threw away a .45-caliber gun that was recovered by the officers a moment or so before they arrested him.

While Bailey was being taken into custody, the third policeman saw a young man point a gun and fire it once at Barksdale’s automobile. At the same time, that officer saw two other youths filing at Barksdale’s car.. The youth who was alone ran into a gangway and then to a porch, followed by the policeman. The youth ducked; and a short time later the policeman, using his flashlight, found him trying to unjam a .25-caliber automatic gun. He was the defendant, Andrew McChristian. On being ordered to do so, defendant dropped the gun and was placed under arrest. No one, either in or out of Barksdale’s automobile was injured; no property was damaged.

A short time later, as defendant and Bailey were being put in the police car, Edward Dinkins approached the officers and asked why the two were being held. Dinkins was arrested. Barksdale, who had driven to the comer of East 65th Street and Ellis Avenue, stopped his car there and was asked by the three policemen to go with them to an area police station where they were taking defendant, Bailey and Dinkins. At the station, according to one policeman, Bailey and defendant had a convert sation with Barksdale. Bailey said to Barksdale, ‘We didn’t get you this time.” Defendant, who was listening to the conversation, chuckled and said, “We will get him next time.”

Defendant, Bailey and Dinkins were later indicted; and in fifteen counts, it was charged that on May 8, 1968, they committed aggravated assaults, aggravated batteries and attempts to murder David Barksdale, William Gaddy, James Hall, Tyrone Withers and Mitchell Newton. The sixteenth count charged the defendants with conspiracy to murder Barksdale and his four companions. Prior to their trial, on the State’s motion, the ten counts that charged the aggravated assaults and aggravated batteries were dismissed. The defendants then went to trial before a jury on the six counts that charged the attempts to murder and conspiracy. The three policemen testified to the events of May 8, 1968. At the close of the State’s evidence, the trial court directed the jury to acquit Dinkins of all the charges against him. Defendant, testifying as one of two defense witnesses, denied that in the evening of May 8, 1968, he discharged any firearm in the direction of Barksdale’s car or conspired with Bailey to do so. The remaining cases were submitted to the jury, and it returned verdicts finding Bailey guilty of the attempts to murder and the conspiracy.

Defendant was acquitted of the attempts but was found guilty of conspiracy under the charge that on May 8, 1968, he, Bailey and Dinkins “* * * with the intent to commit the offense of murder, knowingly and intentionally agreed with each other and with divers other persons whose names are unknown to the Grand Jurors but who the said Grand Jurors believed to be members of an organization known as the Blackstone Rangers, to the commission of the offense of murder, that is to say, they knowingly and intentionally agreed to kill by shooting without lawful justification David Barksdale, William Gaddy, James Hall, Tyrone Withers and Mitchell Newton.” In furtherance of the conspiracy, it was charged that on May 8, 1968, defendant and the two others intentionally discharged firearms in the direction of an automobile in which Barksdale, Gaddy, Hall, Withers and Newton were riding, with intent to kill or do great bodily harm to the occupants of the automobile. Therefore, in view of the specificity of the charge, the question we must decide is whether evidence which disclosed the facts in this record proved that on May 8, 1968, defendant, Bailey and Dinkins conspired to murder the five persons whose murder was the object of the alleged conspiracy.

H.

The offense with which defendant, Bailey and Dinkins were charged in the conspiracy count was a specific intent crime. (See Ill. Rev. Stat. 1967, eh. 38, par. 8—2; Perkins, Criminal Law 629 (2d ed. 1969); Harno, Intent in Criminal Conspiracy, 89 U. Pa. L. Rev. 624, 635 (1941).) The gist of that crime was the unlawful combination or agreement; one into which, according to the State, the three defendants had entered with intent to murder David Barksdale and the four named companions who were in his automobile on the evening of May 8, 1968. See People v. Borrelli, 392 Ill. 481, 64 N.E.2d 719; People v. Edwards, 74 Ill.App.2d 225, 219 N.E.2d 382.

To sustain a conviction for conspiracy, the object of the conspiracy has to be proved as laid out in the indictment. (Evans v. People, 90 Ill. 384; Johnson v. People, 124 Ill.App. 213.) In this case, since the object of the conspiracy, according to the charge, was the murder of five named persons, the State had to prove that when defendant and Bailey fired guns in the direction of the automobile in which the five were riding, they did so with knowledge that the purported victims were in there. Compare People v. Seefeldt, 310 Ill. 441, 141 N.E. 829; see United States v. Allegretti (7th Cir. 1964), 340 F.2d 243.

An attempt to murder requires proof of specific intent to take human life. (People v. Davis, 6 Ill.App.3d 622, 286 N.E.2d 8.) For example, in a charge of conspiracy to mutilate the face of a named person, the State must prove that it was the face of the named person which the conspirators intended to mutilate, not that of someone else. (State v. Vetrano (Me. 1922), 117 A. 460.) And where it is charged that a bulb of sulphuric acid was thrown into a cab with intent to maim a named individual who was seated in the rear seat of the cab, the State must prove that the defendants knew that the intended victim was in the cab. (State v. Martin (1938), 342 Mo. 1089, 119 S.W.2d 298.) Therefore, in a case like this one, the State had to prove not only that the defendants knew David Barksdale, could recognize his automobile and shot at him the evening of May 8, 1968; it had to prove the defendants, as conspirators, had knowledge of Barksdale’s four companions and shot at Barks-dale’s automobile with intent to murder them. (Compare United States v. Ausmeier (2d Cir. 1945), 152 F.2d 349; see People v. Hodson, 406 Ill. 328, 94 N.E.2d 166; People v. Niederhauser, 258 Ill.App. 564; Wilson v. State (1934), 127 Tex. Crim. 152, 74 S.W.2d 1020; State v. Hicks (1950), 233 N.C. 31, 62 S.E.2d 497.) A conspiracy against a number of individuals must be proved by evidence which shows that the conspiracy was against aU as charged; a conspiracy against a single person cannot be sustained by proof of a conspiracy against the public generally. People v. Walsh, 322 Ill. 195, 207, 153 N.E. 357; see Lowell v. People, 229 Ill. 227, 82 N.E. 226, 15A C.J.S. Conspiracy § 90.

With these principles in mind, we examine the evidence on which the jury found defendant guilty of conspiracy and which the State contends supports the judgment of conviction. We observe that this record does not show any of the defendants, at any time prior to May 8, 1968, knew that David Barksdale was going to drive his automobile past 6526 South EUis Avenue with William Gaddy, James Hall, Tyrone Withers and Mitchell Newton as his companions. There is no evidence that defendant, at any time, agreed with Bailey and Dinkins to discharge firearms in the direction of Barksdale’s automobile with intent to murder the persons who were objects of the conspiracy. It is true that to prove a conspiracy evidence of an express agreement is not necessary. (People v. Amore, 369 Ill. 245, 16 N.E.2d 720; People v. Williams, 324 Ill.App. 526, 58 N.E.2d 278.) A conspiracy is rarely susceptible of proof by direct evidence. (See People v. Edwards, 74 Ill.App.2d 225, 219 N.E.2d 382; 15A C.J.S. Conspiracy §93(1).) Therefore, a conspiracy can be proved by direct evidence that discloses a common design by two or more persons. (People v. Meisenhelter, 381 Ill. 378, 45 N.E.2d 678.) Or it can be proved by circumstantial evidence. (People v. Link, 365 Ill. 266, 6 N.E.2d 201; People v. Bain, 359 Ill. 455, 195 N.E. 42.) However, circumstantial evidence that will support a convictipn for conspiracy, as is true of circumstantial evidence generally, must be such that the conclusion drawn from it excludes every reasonable hypothesis other than guilt. (People v. Nathanson, 389 Ill. 311, 317, 59 N.E.2d 677; Nestor Johnson Manufacturing Co. v. Goldblatt, 265 Ill.App. 188.) It has been said that a conspiracy cannot be proved by mere suspicion, mere relationship of the defendants or association of the parties charged. People v. Mulford, 385 Ill. 48, 54, 52 N.E.2d 149; People v. Gates, 29 Ill.2d 586, 195 N.E.2d 161.

In this case, evidence of the alleged conspiracy consisted of proof that defendant and Bailey knew each other, were members of the same street gang, arrived together at 6526 South Ellis Avenue on the evening of May 8, 1968, were seen by three policemen (defendant firing a gun once and Bailey four or five times at Barksdale’s automobile); and later, in a conversation with Barksdale, spoke of having missed him when they fired their guns. In our judgment, the statements did not admit a conspiracy to murder Barksdale and his four companions. At most, they expressed ill will toward Barksdale.

In determining whether the evidence proved that defendant and Bailey intended to murder five persons when they discharged firearms in the direction of Barksdale’s automobile, it is significant that, according to the three policemen, as many as 13 people were seen firing guns, two youths were seen firing a weapon, defendant fired once and Bailey four or five times directly at the car; yet, when the automobile was examined, there were no bullet holes on it; when a picture of it was shown to an evidence technician of the Chicago Police Department, he could not tell what caused an indentation that could be seen on its roof.

As to defendant’s conduct, according to one of three policemen, he was seen firing a gun at Barksdale’s automobile. This firing, by the State’s theory, was, defendant’s overt act in furtherance of the conspiracy; it was also, by that theory, defendant’s attempt to murder Barksdale, Gaddy, Withers, Hall and Newton. Tire jury, however, considered the charges of attempts to murder and found defendant not guilty. The jury could have found defendant guilty on the grounds that he was accountable for Bailey’s conduct in firing four or five times at the automobile, but it did not. There is no other evidence of any other act by the defendant. The crimes which the State charged were factually intertwined, and since each crime was covered by a separate count of the indictment, there is a logical inconsistency in the verdicts: five acquitted defendant of attempts to murder, one found him guilty of conspiracy to murder the same five persons. (See People v. Hyman, 8 Ill.App.3d 382, 290 N.E.2d 627.) This does not make the verdicts legally inconsistent. (People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840.) However, this inconsistency tends to negate the existence of an element essential to proof of the crime of which defendant was convicted. (See Ex Parte Johnston (1935), 3 Cal.2d 32, 43 P.2d 541; People v. Guerrero (1943), 22 Cal.2d 183, 137 P.2d 21; Annot., 18 A.L.R.3d 259.) That element, on the peculiar facts of this case, is the overt act of shooting which by its verdicts of acquittal the jury must have found defendant did not commit with intent to murder the five occupants of the automobile.

In People v. Henry, 3 Ill.App.3d 235, 278 N.E.2d 547, the defendant was charged with the attempt to murder a Chicago policeman who, in the company of three fellow officers, was riding in an -unmarked squad car. There was evidence that defendant pointed his arm at the police car and fired two shots in its direction. He was seen throwing away a revolver that was recovered together with three live and two expended cartridges. On the defendant’s person was a holster; in his pocket were twelve live and three spent shells. The defendant in Henry admitted that the gun was his but said that he shot in the air and not at the police car. This court, speaking by Mr. Justice Dempsey, held that the State’s evidence did not prove the defendant fired the gun at the squad car with intent to murder the policeman named in the indictment as the victim of the shooting. Although in this case we review a conviction for conspiracy rather than one for attempt to murder, we reach the- same conclusion. In doing so, we do not condone defendant’s conduct nor that of Bailey. The evidence, in our judgment, proved that on the evening of May 8, 1968, according to three p'olicemen whose testimony the jury chose to believe, defendant and Bailey acted in concert to endanger public safety and health by discharging firearms in one of the most densely populated areas of Chicago. However, the conviction for conspiracy in this case cannot be sustained by evidence that the defendants were guilty of some other charge or of generally bad and criminal conduct; the evidence must prove their guilt of the particular charge made in the indictment. (People v. Mader, 313 Ill. 277, 285, 145 N.E. 137; People v. Bain, 359 Ill. 455, 195 N.E. 42; compare People v. Brown, 159 Ill.App. 396.) Heinous as was their conduct, the evidence in this record did not prove a conspiracy to murder five persons, as was charged by the State. (Compare Commonwealth v. Faulcon (1973), 450 Pa. 414, 301 A.2d 375.) Therefore, the judgment is reversed. People v. Lamkin, 9 Ill.App.3d 771, 291 N.E.2d 512.

Reversed.

HAYES, P. J., concurs.

Mr. JUSTICE DOWNING

dissenting:

I would reverse and remand.

Defendant McChristian with co-defendants Melvin Bailey and Edward Dinldns were charged in a sixteen count indictment with aggravated assault, aggravated battery, attempts to murder and a conspiracy to murder five persons. At the close of the State’s case, the trial court granted Dinkins’ motion for a directed verdict. Tire jury returned verdicts acquitting McChristian of the attempts to murder but found him guilty of the conspiracy charged. Bailey was found guilty, by the jury, on five counts of attempt murder and conspiracy.

We have today reversed and remanded the conviction of Bailey. (People v. Bailey, 18 Ill.App.3d 80,--N.E.2d--.) The reasons for the reversal of Bailey arose from certain trial errors. The same errors are equally applicable to McChristian. For the reasons set forth in Bailey, I would reverse and remand the McChristian conviction.

The majority concluded that as to McChristian the record does not prove a conspiracy to murder five persons as charged by the State. Therefore, the majority only reverses.

In this connection, it is interesting to note that before this court, McChristian, in requesting this court to reverse and remand, never really argued the theory upon which the majority bases the reversal. Naturally, the State did not have an opportunity to present its arguments as to this theory. Our review of the record indicates the trial court denied defendant McChristian’s motion for new trial; however, we cannot tell from the record whether the motion for new trial was written or oral (see Ill. Rev. Stat. 1969, ch. 38, par. 116—1(b) and (c)), and whether this theory was presented to the trial court. Under these circumstances, at this time, I cannot concur in the majority opinion.

As stated in the Bailey opinion, there were certain errors in the trial court with respect to the testimony of witness David Barksdale and the efforts to impeach his testimony. Exclusive of tire Barksdale testimony, my review of the evidence as to McChristian indicates there was evidence in the record, from which the jury may imply tire existence of a conspiracy on the part of McChristian and Bailey to commit the acts as charged in the indictment.

The majority opinion, in discussing the jury verdicts as to McChristian, points out their inconsistency. As our supreme court said in People v. Hairston (1970), 46 Ill.2d 348, 362, 263 N.E.2d 840, “* * * our courts have followed the view that logical consistency in verdicts in such instances is not necessary, so long as the verdicts are not legally inconsistent. (People v. Raddatz, 403 Ill. 48; People v. Taylor, 56 Ill.App.2d 170; People v. Ingersoll, 58 Ill.App.2d 216; and see People v. Garman, 411 Ill. 279.) To use the words of the court in State v. Baird (Wash.), 93 P.2d 409, 412, we follow the view that: Tn law there is no inconsistency in verdicts of acquittal and conviction upon charges of crimes composed of different elements, but arising out of the same state of facts.’ The verdicts here were legally consistent, if not logically so, and defendant’s claim of a right to discharge must be denied.”

In People v. Lamkin (1972), 9 Ill.App.3d 771, 291 N.E.2d 512, cited by the majority, the defendant was charged with conspiracy to commit burglary. The only evidence impHcating the defendant in the burglary was the testimony of one of the arresting officers. The court denied defendant’s motion for a directed verdict. The defendant offered no evidence at trial. The court reversed the conviction because on the record there was reasonable doubt of defendant’s guilt. On the other hand, McChristian testified at his trial, and under long established principles he waived any error. People v. Slaughter (1963), 29 Ill.2d 384, 389, 194 N.E.2d 193.

For these reasons, I would reverse the judgment of the circuit court of Cook County and remand for a new trial.