author: Mr. JUSTICE SIMKINS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William B. Martin et al., Defendants-Appellants.
    (No. 12298;
    Fourth District
    May 27, 1974.

      Duane L. Traynor, of Traynor & Hendricks, of Springfield, for appellants.
    C. Joseph Cavanagh, State’s Attorney, of Springfield, for the People.
   Mr. JUSTICE SIMKINS

delivered the opinion of the court:

Defendants appeal from judgments and sentences entered on guilty pleas to the offense of bribery in violation of section 33 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 33 — 1). Defendant Martin was given a 1-year sentence with a $4500 fine and defendant Meurlott was given a 1- to 3-year sentence with a $5000 fine. On appeal defendants raise the following issues: (1) Whether the State violated the spirit of the plea bargaining agreement; (2) Whether the trial court abused its discretion by denying defendants probation; (3) Whether the trial court abused its discretion by imposing a more severe sentence on defendant Meurlott.

The basic facts are not in dispute. On October 26 and October 31, 1972, defendant Meurlott contacted a Mrs. Murray, an employee of the computer-data section of the Secretary of State’s Office in Springfield, Illinois, and offered her $10,000 for the names of all 16-, 17- and 18-year-old drivers in the State of Illinois from the Secretary of State’s driver’s license file. On November 1, 1972, Mrs. Murray received a call from Meurlott and Martin indicating that only the names of 16- and 17-year-old drivers were desired and advised her as to certain technical matters. On November 3, 1972, Meurlott called Mrs. Murray to discuss other technical matters and the necessity for an advance payment. On November 6, 1972, Mrs. Murray met defendants at a motel room in Springfield and received from defendants $5000 and two reels of the magnetic tape needed to run off the names. Mrs. Murray, however, had been in contact with the authorities, and defendants were immediately arrested by investigators from the Secretary of State’s Office and the State police.

On November 15, 1972, the defendants were indicted for bribery, two counts of solicitation, attempted theft over $150, and conspiracy. On January 11, 1973, defendants entered into a plea bargaining agreement with the State whereby they would plead guilty to the bribery count, and the State would dismiss the other four counts of the indictment. The agreement further provided that Meurlott would be fined $5000, and defendant Martin would be fined $4500. Under the agreement the question of sentencing was to be left to the court with only a maximum possible term of 1 year as to Martin stipulated. The court then informed defendants that the State was not precluded from introducing evidence at the hearing in aggravation and mitigation concerning the occurrence and the backgrounds of defendants but under the terms of the agreement could make no recommendation as to sentence imposition. The court further stated that since no recommendation would be made, the court wanted to be fully informed as to everything concerning the offense, and the State could put on witnesses in that regard. The defendants stated they understood, defense counsel agreed, and the court subsequently entered judgment on the pleas.

On March 1, 1973, a hearing was held in aggravation and mitigation. Extensive reports by the probation officer indicated that both defendants were in their mid-thirties, had no prior criminal records, had been engaged in various business ventures, and it concluded that defendants could be favorably recommended for probation. The State with the court’s permission then extensively questioned defendants in regard to their motivation in committing the offense, the details of the offense, the financial arrangements involved, and the backgrounds of both defendants. Meurlott later stated that it was his idea to contact Mrs. Murray, but he could not say whose idea it was to bribe a State official. Martin stated that he and Meurlott mutually agreed to the bribery attempt. The State then related to the court the sentencing alternatives, but did not malee any recommendation in that regard. The court then stated its concern over the seriousness of the offense committed, and the fact that not to impose some type of incarceration would be an encouragement to others to bribe public officials. On March 5, 1973, the court stated that probation would not be granted because of the crime involved, and the number of steps taken to perpetrate it showed much deliberate thought and actions on the part of defendants, combined with the fact that the lists could have legitimately been acquired at a greater expense. The court then sentenced defendants again stating its concern over the seriousness of the offense, and the fact that incarceration was necessary so as not to encourage this type of conduct.

On appeal the defendants do not argue that the State violated the letter of the plea agreement, but simply contend that the State violated the "spirit” of the agreement by so vigorously questioning defendants as to motivation and other matters pertinent to the offense. We find that neither the letter of plea agreement nor its spirit, assuming there is such an elusive creature lurking in the background, were violated in the present case. Indeed, the State agreed to leave sentence imposition to the discretion of the court and that was exactly what was done, for at no time did the State ever recommend a sentence or anything else in violation of the agreement. We note that defendants were aggressively and extensively questioned by the State at the hearing on aggravation and mitigation, and such questioning could have placed defendants in an unfavorable light before the court. Nevertheless, the trial judge informed defendants before accepting the plea that such questioning on the part of the State was not precluded, and the trial judge certainly has the right to know everything relevant to the case and to the defendants involved in imposing sentence. At the hearing the State stated that it would like to question defendants in regard to their motivation in committing the offense. The trial court replied affirmatively, and the questioning of defendants commenced. At one point defense counsel objected to the intensity of the questioning and the court replied, "I think the court has the right to know everything about the crime that there is to know in order to come to a just sentence in this case.” Indeed, the State’s Attorney, as an officer of the court, certainly has an obligation to convey this information to the court as long as no specific terms of the plea agreement are violated.

The defendants also contend that the trial court abused its discretion in denying probation to the defendants. We do not agree. The question of probation is within die sound discretion of the trial court (People v. Wease, 44 Ill.2d 453, 255 N.E.2d 426), and one has neither an inherent nor a statutory right to probation. (People v. Sessions, 132 Ill.App.2d 447, 270 N.E.2d 40.) The trial court in the instant case conducted an extensive hearing in aggravation and mitigation, had before it extensive presentencing reports, and delayed its decision for 3 days to further contemplate tire matter. Even though denial of probation was not based on defendants’ prior record, nor on the necessity to protect society, nor on defendants’ need for incarceration for rehabilitative purposes, all these relevant factors mandated by statute were considered by the court, but tire court obviously considered another relevant factor, the seriousness of the offense and the possible corrupting influence on other public employees, to be decisive. Therefore, on the record before us we cannot say that the trial court manifestly abused its discretion in denying probation.

Defendant Meurlott contends that the trial court abused its discretion by discriminating against him in the imposition of sentences since he received 1 to 3 years while defendant Martin received only a 1-year sentence. We see no merit to this argument. It is not necessarily contemplated that the same sentence will be imposed on all persons guilty of the same offense. (People v. Sockioell, 7 Ill.App.3d 520, 288 N.E.2d 33.) A defendant clearly cannot complain that he received a discriminatory sentence compared with his co-defendant where the sentence was within statutory limits, and the trial court could have considered other relevant factors in regard to this defendant’s conduct. (People v. Spears, 50 Ill.2d 14, 276 N.E.2d 322.) In the present case the sentence imposed on Meurlott was within statutory limits, and the trial court obviously considered other relevant factors in regard to Meurlott’s conduct. For instance, Meurlott admitted that it was his idea to contact Mrs. Murray and that he made the initial contact. Therefore, we find no manifest abuse of the trial court’s discretion in imposing disparate sentences on the two defendants.

Accordingly, for the reasons stated herein the judgments of the trial court are hereby affirmed.

Judgments affirmed.

SMITH, P. J„ and TRAPP, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE CRAVEN.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Billy Joe Preston, Defendant-Appellant.
    (No. 12308;
    Fourth District
    May 27, 1974.
    John F. McNichols, J. Daniel Stewart and Daniel D. Yuhas, all of State Appellate Defender’s Office, of Springfield, for appellant.
    Robert J. Bier, State’s Attorney, of Quincy, for the People.
   Opinion by

Mr. JUSTICE CRAVEN.


author: Mr. JUSTICE RECHENMACHER Mr. JUSTICE THOMAS J. MORAN,

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lee A. Allen, Defendant-Appellant.
    (No. 73-224;
    May 29, 1974.

      T. MORAN, J., dissenting.
    Frank V. Ariano, of Elgin, for appellant.
    Gerry Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

The defendant pleaded guilty to each of three charges of burglary and was sentenced by the Circuit Court of Kane County to a term of not less than 3 nor more than 10 years in the penitentiary on each charge, to be served concurrently.

Defendant’s plea for post-conviction relief was denied and he prosecutes this appeal. Frank V. Ariano was appointed defendant’s attorney for the purposes of this appeal and the attorney has filed his motion to withdraw as defendant’s counsel for the reason that the appeal is without merit. In conformity with Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396, copies of the attorney’s motion to withdraw, together with his brief, were served on the defendant August 21, 1973, and the case was continued to October 2, 1973, for defendant to file additional pleas or objections to the motion of couns.el to withdraw. Defendant failed to respond to this notice in any way.

Counsel’s brief filed with his motion to withdraw, as required by Anders, sets forth three points which counsel felt could conveivably be argued on appeal, even though he considers them to be without merit, and we will consider these points in the light of the record in this case.

The brief filed by counsel suggests first that “an argument could conceivably be made” based on the record on appeal, that there was no factual basis for the plea of guilty.' From a thorough and careful reading of the record, however, it is apparent that this contention has no factual basis. The record clearly shows that the defendant was found in possession of stolen property within a few hours after the burglaries in question and that defendant admitted the burglaries to the police. There thus was a clear, factual basis for the plea of guilty.

Secondly, it is suggested by defendant’s counsel that it might conceivably be argued that since the defendant admitted being addicted to heroin and to having slight withdrawal symptoms sometime during his period of confinement in the county jail prior to sentencing that possibly the voluntariness of his plea might be in question. But, there is no suggestion in the record that the defendant’s will was overborne in any way, as is required to render a plea of guilty involuntary by use of drugs, Reck v. Pate (1961), 367 U.S. 433, 6 L. Ed. 2d 948, 81 S. Ct. 1541.

The record here refuted such a suggestion in the following colloquy between the defendant and his accomplice and the court:

“MR. MORELLI [defense counsel]: Your Honor, both men are veterans of the United States Armed Forces. Both served in Viet Nam, and both unfortunately picked up a narcotic habit while in Viet Nam.
THE COURT: Hard narcotics?
MR. MORELLI: Yes.
THE COURT: Heroin?
MR. MORELLI: Yes. However, they have been in the Kane County Jail for about two weeks now and I don’t believe they are under the influence of any drugs at this time, is this correct?
MR. OSMAN [another defendant]: Correct.
MR. ALLEN: Correct.
THE COURT: Have you had any withdrawal problems while you have been in jail?
MR. OSMAN: I have, your Honor, slight physical withdrawals.
THE COURT: I see. How about you?
MR. ALLEN: The same trouble.
THE COURT: Are you feeling generally physically good, is that right?
MR. OSMAN: Yes, sir.
THE COURT: The same for you?
MR. ALLEN: Yes.”

We feel that the fact that the defendant had been in the county jail for 2 weeks prior to his hearing and admitted to slight withdrawal symptoms during that time is not sufficient to suggest the involuntariness of his plea due to the effect of drugs, especially since he answered in the affirmative to the count’s inquiry as to whether he was now feeling generally physically good. This is all the evidence in the record regarding the possible effect of drugs on the plea of guilty and it is far from sufficient to establish that the defendant’s will was overborne.

Lastly, it is suggested in the brief that it might be conceivably argued that the court was prejudiced by its knowledge of defendant’s narcotic habit, because of the court’s emphasis on the drug habit in the sentencing admonition. We find this suggestion entirely without foundation. The words used by the court in this admonition show sympathy with, rather than hostility toward, the defendant.

We find further from the total record that the defendant was properly admonished as to his waiver of indictment and his plea of guilty; that Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) was substantially complied with in all areas, and that defendant was competently represented by counsel at all critical points prior to his conviction.

We find no error meriting a reversal of defendant’s conviction.

Accordingly, the motion of counsel to withdraw is granted and the judgment of the trial court is affirmed.

Motion to withdraw allowed, judgment affirmed.

GUILD, J., concurs.

Mr. JUSTICE THOMAS J. MORAN,

dissenting:

I respectfully dissent from the majority view for, in my opinion, the j trial court failed to explain the nature of the charge and made no inquiry as to the voluntariness of the plea.


author: Mr. JUSTICE ALLOY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. David Stovall, Defendant-Appellant.
    (No. 73-33;
    Third District
    May 31, 1974.

      James Geis, of Office of State Appellate Defender, of Ottawa, for appellant.
    David DeDoncker, State’s Attorney, of Rock Island, for the People.
   Mr. JUSTICE ALLOY

delivered the opinion of .the court:

This is an appeal from a sentence imposed on defendant David Stovall who was convicted of armed robbery following- a jury trial in the Circuit Court of Rock Island County. The sentence of 8, to. 20 years for armed robbery was to be concurrent with the term of 1 to 10 years for violating probation granted on a previous burglary conviction. The only issue raised on appeal in this court is whether the sentence imposed is excessive and not conducive to rehabilitation of defendant Stovall.

The record indicates that defendant was identified in court as one of two men who robbed the victim. The victim testified that Stovall was carrying a- linoleum or roofer’s knife and that his partner was carrying a gun, which was later determined to be a cap gun or starter’s pistol. The amount taken was $79 which was recovered. Minutes after the robbery had occurred, a policeman followed the car being driven by Stovall, and when the car stopped in back of Stovall’s home, Stovall and a passenger jumped out and ran. The officer testified that he apprehended the passenger, one Willie Hoskins. The officer was unable to catch Stovall. Stovall defended on the ground that he had loaned the automobile to Willie and Jimmie Hoskins and was not present at the time of the robbery. The jury obviously did not believe the alibi.

At the time of the commission-of this offense, Stovall was on probation for a previous burglary. He also had a prior record of offenses as a juvenile. At the hearing in aggravation and mitigation, defense counsel was permitted to tell the court that defendant’s pastor would have testified that defendant did possess the ability to rehabilitate himself if he had the desire. Defendant was 19 years of age at the time of the conviction in 1970. The prosecutor had recommended a penalty of 8 to 20 years and assigned as one of the reasons for the recommendation that Stovall had apparently not appreciated the privilege of being placed on probation.

The crime of armed robbery is. a Class 1 felony and, under the existing section 5 — 8—1(c)(2) (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8—1(c) (2)), the minimum sentence is set at 4 years for the offense. The issue now On appeal is whether the 8-year minimum sentence imposed in the instant case is excessive.

While we agree that in an appropriate case, a court of review should act to modify and reduce sentence to give greater opportunity to the parole authorities in developing potential rehabilitation of a defendant, in view of the time factor and the record in this cause, we do not believe there should be a modification of the minimum sentence in this case. Under Supreme Court Rule 615(b)(4) (Ill. Rev. Stat. 1973, ch. 110A, § 615(b)(4)), the power is vested in the court of review to reduce punishment, but it has been frequently stated that the power should be used with caution and that the trial court’s judgment should not ordinarily be disturbed unless it clearly appears that the sentence constitutes a great departure from the fundamental law and- its spirit. (People v. Hobbs, 56 Ill.App.2d 93, 205 N.E.2d 503; People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.) While the defendant’s pastor had indicated that he believed defendant had a capability of rehabilitation “if he had the desire," the fact that he had violated his existing probation by a burglary offense, apparently raised serious questions in the mind of the trial court as to defendant’s desire for rehabilitation in view of the commission of the crime of armed robbery in the instant case.

In view of all the circumstances in this cause, therefore, we conclude that a modification of the minimum sentence in the instant case should not be entered, and that the sentence as imposed by the trial court should be affirmed. The judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

STOUDER and DIXON, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James D. Reynolds, Defendant-Appellant.
    (No. 74-79;
    Third District
    May 31, 1974.

      James Geis, of Office of State Appellate Defender, of Ottawa, for appellant.
    Michael M. Mihm, State’s Attorney, of Peoria, for the People.
   PER CURIAM.


author: Mr. JUSTICE GUILD.

text:
    Advance Construction Company, Inc., Plaintiff, v. Brookhaven Manor Water Company, Defendant and Third-Party Plaintiff-Appellee—(Illinois Bell Telephone Company, Third-Party Defendant-Appellant.)
    (No. 72-367;
    Second District
    June 5, 1974.

      L. Bow Pritchett, Alan N. Baker, and Richard G. Siegel, all of Chicago, for appellant.
    Smietanka & Garrigan, of Chicago, for appellee.
   Opinion by

Mr. JUSTICE GUILD.


author: Mr. PRESIDING JUSTICE THOMAS J. MORAN

text:
    Robert F. Davis et al., Plaintiffs-Appellants, v. Board of Education of Aurora Public School District No. 131, of Kane County, Defendant-Appellee.
    (No. 72-312;
    Second District
    June 5, 1974.
    Drach, Terrell & Deffenbaugh, of Springfield, for appellants.
    Reid, Ochsenschlager, Murphy & Hupp, of Aurora, for appellees.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Plaintiffs, tenured teachers of the defendant (Board), appeal from an order dismissing their complaint for declaratory judgment wherein they sought salaries equal to those of other teachers within the same district.

Questions raised are: were plaintiffs denied a salary commensurate to those paid other of the Board’s teachers solely because plaintiffs declined to sign a new contract; could the Board refuse plaintiffs the amount prescribed in the salary schedule adopted for the current school year (1971-72); and in the event that plaintiffs’ salaries must be determined on the basis of the prior contract (1970-71), are they entitled to an increment under the salary schedule in force at that time?

The stipulated facts reveal that Aurora Education Association, East, (AEAE) was recognized by the Board as the teachers’ bargaining representative. On June 9, 1971, AEAE met and passed a resolution that the teachers “will not return to the classroom in the fall if there is at that time no satisfactory settlement of the contract between the Board of Education and the AEAE and further that an open meeting be held on September 2 for all teachers to assess the position of the AEAE at that time." (The fall school term commenced on September 7, 1971.)

The Board interpreted this action as a threat to strike and, on June 21,1971, counteracted by forwarding a new contract to all of the teachers in the district. In addition to providing for an increase in salary and other benefits, the contract contained a provision assuring the Board that the individual who signed would report ready for work at commencement of the fall term and “would not participate in a work stoppage, withholding of services, or strike, during the school year 1971-72.” On July 29, 1971, the Board sent a follow-up letter wherein the teachers who had not yet signed the new contract were given the following options:

“A) the right to sign the contract dated June 21 previously sent * * * by the Board of Education. (A duplicate is available upon request.)
B) the right to return to the district in accordance with section 24 — 11 of the School Code. The insurance benefits and salary terms would be the same as last year.”

Plaintiffs did not sign the contract but did return to work in September.

The plaintiffs maintain that the Board may not arbitrarily require a tenured teacher to execute a contract nor, on the basis of that teacher having refused to sign a contract containing provisions relative to matters other than salary and terms of employment, can the Board refuse to pay him an amount equal to that paid other teachers.

While the law does not require tenured teachers to sign a new contract, it has also established that in Illinois a Board may enter into new contracts of employment with tenured teachers. (Donahoo v. Board of Education, 413 Ill. 422, 427 (1952).) The effect of each of these alternatives is distinct: under the first, the “unsigned” tenured teacher continues, automatically, under the terms and conditions contained in the previous year’s contract (Allen v. Maurer, 6 Ill.App.3d 633, 642 (1972)), whereas in the second instance, the “signed” tenured teacher may rely upon the terms and conditions within the new contract.

Here, the central issue is whether the salary distinction, based upon the teachers’ signing or refusing to sign a new contract, is arbitrary, capricious or unreasonable. The Board treated all teachers equally, giving each the option of receiving the increased benefits by signing the new contract. Tenured teachers could neither be required to sign nor could they be removed for their failure to do so. The option of signing was that of the teachers’. Plaintiffs opted not to sign and now receive less pay than those tenured teachers who executed the new contract. We do not find this to be arbitrary, capricious or unreasonable.

Parenthetically, we note that it would be basically unfair to apply the benefits of the new contract to those who refused to sign when they, by refusing, declined to obligate themselves to the terms and conditions imposed upon those who did sign.

Plaintiffs maintain that the Board may not refuse to pay a teacher an amount prescribed in the salary schedule adopted for the school year despite the fact that that schedule was attached to the contract which plaintiffs refused to sign because of other matters therein. We find two salary schedules in effect for the 1971-72 school year; the schedule under the new contract and the schedule under the previous contract. The current schedule applied only to those teachers who signed the new contract; the previous schedule was applicable to those tenured teachers who refused to sign the new contract but returned to work. Such intent is clearly manifested within the Board’s letter of July 29, 1971, and having by their actions accepted the Board’s option “B” therein, plaintiffs cannot now claim a right to a salary provided for within a contract they did not sign. A distinction in salary based on the signing or failure to sign a new contract is legally effective. In Donahoo v. Board of Education, 413 Ill. 422, 427 (1953), the court stated:

“The Teacher Tenure Law does not make it mandatory upon the teacher to either accept or reject. Of course, if an offer was properly made and unconditionally accepted, it would be in force according to its terms, but if not accepted or conditionally accepted, then the provisions of the Teacher Tenure Law apply.”

Plaintiffs maintain that if they are not entitled to be paid under the salary schedule adopted by the Board for the school year 1971-72, they are entitled to the increment under the salary schedule adopted for the school year 1970-71. Section 24 — 11 of the School Code (Ill. Rev. Stat. 1969, ch. 122, § 24 — 11) has been construed to allow a tenured teacher to return to work without a new contract and to receive the previous year’s salary. (Donahoo v. Board of Education, supra; Lippincott v. Board of Education, 342 Ill.App. 642, 649-50 (1951).) We initially note that the first sentence of option “B” is not a salary offer but a restatement of the statutory provision permitting a tenured teacher the right to return to work. Were this the only provision of the option, plaintiffs would clearly be limited to last years salary. Within option “B”, however, the Board explained that “the insurance benefits and salary terms would be the same as last year.” By using the words “salary terms” (of broader meaning that “salary”) the Board proposed to continue the 1970-71 salary schedule for those teachers who declined to sign the new contract but returned to work. Under that schedule, plaintiffs are entitled to a salary increment for an additional year’s experience. Having by their performance accepted the Board’s option “B”, plaintiffs are entitled to the salary increment effective under the old contract. On this point the judgment is reversed and the cause remanded with directions that plaintiffs be paid their salary increment under the 1970-71 salary schedule. In all other respects the judgment is affirmed.

Judgment affirmed in part, reversed in part and remanded with directions.

SEIDENFELD and RECHENMACHER, JJ., concur.


author: Mr. PRESIDING JUSTICE T. MORAN.

text:
    Patsy Jewell Van Buskirk, Plaintiff-Appellee, v. Stephen Tucker Van Buskirk, Defendant-Appellant.
    (Nos. 72-211, 72-369 cons.;
    Second District
    June 4, 1974.

      Harry Schaffner and Frank V. Ariano, both of Elgin, for appellant.
    Roy S. Lasswell, of Batavia, for appellee.
   Opinion by

Mr. PRESIDING JUSTICE T. MORAN.


author: Mr. JUSTICE RECHENMACHER

text:
    Lake Barrington Citizens Committee, Inc., et al., Plaintiffs-Appellants, v. The Village of Lake Barrington et al., Defendants-Appellees.
    (No. 73-290;
    Second District
    May 29, 1974.

      Rehearing denied June 26,1974.

      Tenney & Bentley and Karaganis, Martin & Gail, both of Chicago, for appellants.
    Eva Schwartzman, of Libertyville, and Morgan, Cook, Lanoff & Madigan and Peterson & Houpt, both of Chicago, for appellees.
   Mr. JUSTICE RECHENMACHER

delivered the opinion of the court:

The Lake Barrington Citizens Committee, Inc. and certain individuals filed a complaint for declaratory judgment asking that a certain ordinance of the Village of Lake Barrington (ordinance no. 72-0-3) be declared null and void. The trial court, after hearing the case on the pleadings and a stipulated set of facts, rendered judgment upholding the validity of the village ordinance from which judgment the plaintiffs appeal.

It should be noted at the outset that the plaintiffs do not contest the right of the village trustees to approve the contemplated planned unit development which is the subject of the contested ordinance nor do they attack the project itself on any ground having to do with public health, safety, morals or welfare. What they are contesting is the validity of ordinance no. 72-0-3 which, in connection with the approval of the planned development project, permitted the creation of multi-family dwellings in a zone designated R-2 under the existing zoning law.

As the basic issue raised by this appeal is the proper interpretation of certain sections of the Village’s zoning ordinance, as amended, a brief history of the ordinance may be helpful in understanding the controversy.

In April 1960, the Village adopted a zoning ordinance providing for only one residential zoning district, R-l, and one business district, B-l. The only residential use allowed under R-l was single-family residences on 1-acre lots. In December 1960 the Village amended the zoning ordinance to create a new zoning district, R-2, which permitted single-family residences on 20,000 square foot lots. Any use permitted in R-l was also permitted in R-2. In 1962 the Village added, by ordinance no. 52, a provision for “special uses” which permitted in R-l and R-2, “any other type of use other than an industrial or manufacturing use, which requires permanent improvements whose value is in excess of $10,000 and/or where more than four persons are to be permanently employed in connection therewith.”

Then, in 1964 the Village again amended the zoning ordinance by adopting ordinance no. 89, the ordinance which brings up the main question raised on this appeal. This ordinance created a new zoning district, R-3, which, besides permitting the uses permitted in R-l and R-2, also provided in its section 4.8 that a planned development would be permitted as a special use “in any zoning district [emphasis ours] for the purpose of utilizing effectively the benefits inherent in unified land planning and development, including a more efficient and more economical development pattern, and a more attractive and varied arrangement of-structure types and open spaces than is possible under standard regulations for single district lots.”

This section (4.8) of ordinance no. 89 also provided as follows:

“In the case of planned developments, the Board of Trustees may by ordinance authorize uses not otherwise permitted and modify regulations otherwise required in the area of said development when the Board of Trustees determines:
(a) That the uses permitted shall be for the purpose of developing an integrated site plan; and
(b) That the intensity of use permitted by such ordinance is necessary or desirable and is appropriate to the primary purpose of the development.
The adoption by the Board of Trustees of an ordinance or ordinances amending the Zoning Ordinance of the Village authorizing and approving a specific planned development with respect to a particular tract of land shall constitute a legislative determination that the regulations and requirements governing the types of uses for that particular tract are the only zoning and development requirements appropriate for that tract to the extent that such requirements and regulations are in conflict with any other ordinances and parts of ordinances.”

But there was another section of ordinance no. 89 which dealt with special uses. This was a new section — section 8.2 — under article 8, reading as foHows:

“Article 8 — R-3 General Residental District Regulations
8.1 Permitted Uses
(a) Any uses permitted in an R — 2 District and shall be subject to such regulations provided in an “R-2” District for such uses.
8.2 Special Uses
(a) Any use permitted as a special use in an R-2 District.
(b) Multi-family dwellings if pubHc or community sewer or water facihties are to be available and the multi-family dwellings are part of and processed as a planned development by the Plan Commission and approved by Ordinance adopted by the Board of Trustees.”

Under Illinois law there is a presumption of validity in favor of a zoning ordinance which has been duly adopted under a legislative grant of power. (Siegel v. City of Chicago (1970), 127 Ill.App.2d 84, 261 N.E.2d 802; Midwest Bank & Trust Co. v. City of Chicago (1971), 133 Ill.App.2d 518; Citizens Bank 6- Trust Co. v. City of Park Ridge (1972), 5 Ill.App.3d 77.) The burden of proving the ordinance here in question invalid is therefore strictly on the plaintiffs. As was said in Midwest Bank & Trust Co. v. City of Chicago, supra, p. 522:

“The rule to be applied in examining the evidence in a zoning case recognizes a presumption in favor of the validity of the legislative enactment, and the party attacking it has the burden of overcoming that presumption by clear and convincing evidence.”

It is in the light of this rule that we proceed to consider the plaintiffs’ challenge to the validity of the ordinance in question.

We consider first the plaintiffs’ contention that section 4.8 and section 8.2 of ordinance no. 89 are in conflict and that section 8.2, being specific on the subject of multiple-farmly dwellings, takes precedence over the general language of section 4.8 regarding planned developments. The plaintiffs point out that only in section 8.2 of the ordinance is the subject of multiple-family dwelling units mentioned and since section 8.2 comes under the heading “Article 8, R-3 — General Residential District Regulations”, they contend it was manifestly the intent of the framers of the zoning ordinance that multi-family dwellings be permitted only in a territory zoned R-3. That specific provisions take precedence over more general ones in construing a statute where the two provisions appear to be in conflict is a well recognized rule of construction. The case of Niles Improvement Association v. J. E. Anderson & Son (1968), 93 Ill.App.2d 167, 172, cited by plainiffs on this point, cites National Products Co. v. Du Page County (1924), 314 Ill. 74, 145 N,E. 298, at pages 80 and 81, where the Illinois Supreme Court said: “It is a well settled rule of construction that where there are two provisions, one of which is general and designed to apply to cases generally, and another is particular and relates only to one subject, the particular provision must prevail and must be treated as an exception to the general provision.” The law is dear on this point to the extent it applies to a particular situation. However, it must be borne in mind that the above announced rule is one of construction. Rules of construction are merely aids in construing a contract where the meaning or intent is not clear. The very case cited by the plaintiffs in support of the rule that the particular takes precedence over the general (Niles Improvement Ass’n v. J. E. Anderson & Son, supra), after announcing the rule, states: “Of course, these aforementioned rules cannot be used to defeat legislative intent.” In Illinois Bell Telephone Co. v. Fox (1949), 402 Ill. 617, cited by both plaintiffs and defendants, the court said at pages 627-628:

“As in the case of statutes, the primary rule for the construction and interpretation of ordinances is to ascertain and give effect to the intention of the law-making body. [Citations.] Furthermore, under familiar principles, a statute itself affords the best means of its exposition, and if the legislative intent can be ascertained from the provisions of the statute that intent will prevail without resort to other aids for its construction [Citations.]”

It is clear, therefore, that the legislative intent is controlling and where the intent can be ascertained from the legislation itself it is unnecessary and inappropriate to resort to the rules of construction to ascertain the meaning of the ordinance.

Does the legislation itself provide us with any clues whereby to divine which of two possible constructions should be applied to the particular set of facts? Referring to the language of the zoning ordinance itself, we find the following in section 4.8:

“The adoption by the Board of Trustees of an ordinance or ordinances amending the Zoning Ordinance of the Village authorizing and approving a specific planned development with respect to a particular tract of land shall constitute a legislative determination that the regulations and requirements governing the types of uses for that particular tract are the only zoning and development requirements appropriate for that tract to the extent that such requirements and regulations are in conflict with any other ordinances and parts of ordinances.”

This language is, if nothing else, a clear indication of an intent by the framers of the village zoning law of 1964 which is here in question to allow flexibility to their successors in dealing with questions arising out of planned development projects. That such intended result was within the power of the village board is clear from many decisions holding that, “ where there is a legitimate difference of opinion concerning the reasonableness of the classification, or where the question of reasonableness is fairly debatable, the courts will not and cannot interfere with legislative judgment * * *.'" (Lindgren v. City of Chicago (1970), 124 Ill. App.2d 289, 300, citing Bredberg v. City of Wheaton (1962), 24 Ill.2d 612, 182 N.E.2d 742).) It is logical to suppose that by inserting this language in the more general section of the ordinance relating to planned development the trustees intended that flexibility to be available for all types of uses including planned developments. We find it significant that the language quoted above is preceded by the following:

“In case of planned developments the Board of Trustees may by ordinance authorize uses not otherwise permitted and modify regulations otherwise required in the area of such development when the Board of Trustees determines
(a) That the uses permitted shall be for the purpose of developing an integrated site plan; and
(b) That the intensity of use permitted by such ordinance is necessary or desirable and is appropriate to the primary purpose of the development.”

The phrase “intensity of use” clearly can be applied to multiple dwellings, which are a more intense use of the land than a single-family dwelling on 40,000- or 20,000-square-foot lots.

We cannot subscribe to the plaintiff’s theory that it was the intention of the framers of the zoning ordinance to prohibit the ordinary planned unit development as a special use in any R — 2 district unless the usual feature of multiple dwelling units was eliminated.

We are therefore of the opinion that there is no irreconcilable conflict between sections 4.8 and 8.2 of ordinance no. 89 merely on the basis that section 8.2 specifically refers to multiple-family dwelling units, whereas section 4.8 refers only to planned developments generally in a context suggesting such development as a special use. It follows, therefore, that it is not necessary to apply the rule of construction suggested by the plaintiffs that would require the conclusion that multiple-family dwellings were not contemplated under any part of the ordinance other than section 8.2 and therefore must come under R — 3 zoning, which is the only zoning authorized under article 8. It is suggestéd by the plaintiffs that unless we hold that multiple-family dwelling units are permitted only under R — 3 zoning we render at least a part of section 8.2 superfluous and meaningless and such a result is not acceptable in construing an ordinance. As stated above, however, where, the legislative intent is clear, as we hold it is here, the question of construction is more theoretical than real. Paragraph (b) of section 8.2 may have been intended, to merely emphasize the requirement that public sewers or water must be present for any multiple-family dwelling units in the newly created Zone 3, but in any event, the mere possibility of a redundance of one paragraph of one section is not sufficient to require the holding that an entire ordinance is invalid, where the legislative intent is clearly manifested by the ordinance as a whole.

The second contention of the plaintiffs is contained in the flat assertion that “ordinance provisions are invalid which attempt to include as special uses any uses other than industrial or manufacturing uses.” Plaintiffs quote the Illinois Municipal Code (Ill. Rev. Stat. 1973, ch. 24, sec. 11 — 13—1.1) in discussing this contention but a reading of this section of the statute compels us to the opposite conclusion. The section quoted by plaintiffs reads as follows:

“The corporate authorities of any municipality may in its ordinances passed under the authority of this Division 13 provide for the classification of special uses. Such uses may include but are not limited to [emphasis ours] public and quasi-public uses affected with the public interest, uses which may have a unique, special or unusual impact upon the use or enjoyment of neighboring property, and planned developments.”

While obviously it is undesirable to extend the “special use” classification indiscriminately to every conceivable type of use and we should heed the words of the Illinois Supreme Court in Kotrich v. County of Du Page (1960), 19 Ill.2d 181, 185:

“And since granting a special use permit involves an ad hoc judgment which may affect surrounding property owners in the same way as a variation or an amendment, unlimited application of the special use technique to land uses that can readily be accommodated within the customary categories would undermine the protection contemplated by the statute.”

We take these as words of caution and not of limitation. In the very case from which this language is taken the Illinois Supreme Court allowed as a special use the creation of a private country club, saying, at page 186, “In our opinion, a residual category of those special uses which can not, without distortion, be included in the customary classifications, is permissible as a means of implementing the powers conferred by the statute.”

The words of the Illinois Municipal Code quoted above, “but are not limited to” while not to be looked upon as a license, certainly import a great deal of flexibility in the determination by a municipality as to what may legitimately be classified as a “special use”. The plaintiffs here quote the words “any use” appearing in the 1962 amendment of the Lake Barrington zoning ordinance as indicating that the ordinance sets no standards — that, “it appears that by the magic label, ‘Special Use’, the Village could allow in a residential district any kind of store, gas station, lumber sales yard, car wash, dog kennel, drive-in movie or hundreds of other uses”. This is an exaggeration. The 1962 ordinance referred to carefully restricts the granting of special use permits as follows:

“g. The granting of any ‘Special Use’ under subsection “f” above may be made subject to such conditions and regulations as the corporate authorities of the Village in their discretion consider necessary or desirable to protect and safeguard the public health, ■safety, and welfare and the value and character of surrounding properties. [Emphasis ours.] Such conditions as are thus imposed shall be considered and shall have the effect of legally binding regulations applicable to the premises with respect to which the ‘Special Use’ is granted, so that any violation of such conditions and regulations shall be considered direct violations of the Village’s Zoning Ordinance for all legal purposes and subject any violator to such fines, penalties and other action as are provided by law for violators of the Zoning Ordinance of the Village of Lake Barrington.”

In addition the zoning ordinance provides that special uses will be permitted only if approved subject to section 11 — 5 of the ordinance which says:

“Special uses shall be considered and acted upon in the manner prescribed herein for amendments to this ordinance. In approving a special use the corporate authorities may impose such additional conditions not otherwise found in this ordinance as is considered necessary to protect the public health, safety and welfare.”

Amendments to the zoning law may only be proposed after published notice and public hearing.

With the safeguards present which are built into the Lake Barring-ton zoning law for the granting of special use permits, all of which were complied with here, there does not appear to be any danger that the flood gates will be opened for indiscriminate and injudicious use of this zoning device. Caution should certainly be the watchword in granting special uses but we think the ordinance in question is clearly within the authority conferred on the Village by the Municipal Code and within the spirit of restraint appropriate to the use of this category.

The judgment of the trial cotirt is affirmed.

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


author: Mr. JUSTICE GUILD

text:
    Ruby J. Logan, Plaintiff-Appellant, v. Allstate Life Insurance Company, Defendant-Appellee.
    (No. 72-277;
    Second District
    May 14, 1974.

      Rehearing denied June 26, 1974.

      Albert S. Salvi, of Lake Zurich, and Charles Scott, of Waukegan, for appellant.
    Peterson, Ross, Rail, Barber & Seidel, of Chicago, for appellee.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This is an action to recover benefits payable under a life insurance policy. On July 16, 1968, the defendant, Allstate Life Insurance Company (Allstate), issued a decreasing term, mortgage retiring, life insurance policy upon the life of Donald P. Logan in the initial face amount of $21,000. Upon the death of the insured on October 1, 1968, Allstate claimed that the insured had misrepresented his prior medical history to its insurance agent and to its medical agent who examined tire decedent, and refused to pay the benefits under the policy. Thereupon, the primary beneficiary of the policy, the wife of the insured, Ruby J. Logan, filed the instant suit against Allstate. The jury rendered a verdict for the plaintiff but the trial court granted defendant’s motion for judgment notwithstanding the verdict and entered judgment for the defendant. The sole issue before this court is whether the trial court properly granted defendant’s motion for judgment non obstante veredicto.

In the latter part of April, 1968, Logan went to an oral surgeon in order to have a wisdom tooth extracted. During a 7-year period prior to the time Logan went to the oral surgeon he had never been hospitalized or involved in an accident of any kind.

On May 4, 1968, he made an appointment with Dr. Leonard Goldberg. He told his wife that he made the appointment because his “tooth” was bothering him and he had lost a couple of pounds. This was his first checkup in 2 or 3 years. Logan complained to Dr. Goldberg of swelling behind his left ear. He stated to the doctor that since he had his wisdom tooth extracted, he had been feeling dizzy and had not been able to eat too well. Also, his right arm had been cramping for a few days.

The doctor’s examination revealed that Logan had an enlarged lymph gland in the neck and other enlarged glands in other parts of his body. Because of Logan’s pale appearance, the doctor suspected that Logan was anemic and sent him for a blood test. Results from the blood test indicated that Logan was anemic. Additionally, the results of one part of the blood test, the white cell differential count, indicated that there was something abnormal which could not have been caused by anemia or by bleeding after a tooth had been extracted.

On May 7, 1968, Dr. Goldberg advised Logan that he should be hospitalized for further tests and a lymph gland biopsy. Logan refused to be hospitalized and maintained his blood condition was caused by the bleeding from the extraction. Later, he became sick and changed his mind.

Logan was hospitalized from May 19, 1968, to June 4, 1968, for diagnostic tests as well as a lymph gland biopsy and bone marrow biopsy. The bone marrow biopsy revealed cancer cells. Dr. Goldberg and Dr. Irving A. Friedman, a specialist called in for consultation, suspected that the defendant had lymphoma. Lymphoma is a general disease of the lymph nodes and ventricular system (marrow, liver, spleen and different cells which replace these organs). The doctors began treating Logan for this disease by giving Logan various combinations of drugs.

Their diagnosis, however, was not confirmed until after Logan’s death. Additionally, Logan was never told of the seriousness of his disease or that he was suffering from lymphoma. The doctors did not want to frighten the patient without any benefit. The doctors did discuss Logan’s blood condition with Logan many times in a vague manner. They told Logan that he had anemia and an undetermined disease of the blood which was in a general group of diseases with which they were familiar.

After his release on June 4, 1968, Logan returned to work. Logan called Allstate Life Insurance Company and on July 9, 1968, Richard Bieck, an Allstate insurance agent, visited the Logan residence. Logan wanted a life insurance policy which would be enough to pay off the mortgage on his house. Bieck recommended a policy and they began going through the procedures required in applying for the insurance. Bieck was the one who filled in the application. At trial, Logan’s wife testified:

“My husband told him that he had been in the hospital, that he had some tests made, and he went in for a check-up and said he had anemia * * *. He [Bieck] said it did not matter about the check-up that their doctor would examine my husband * * * their doctor would give him a physical.”

Bieck had no recollection of visiting the Logan residence or filling out the application. The pertinent portions of the insurance application did not refresh his memory and were not introduced into evidence.

Dr. Ralph Ruthenberg, the doctor who gave Logan a medical ex-animation as part of Logan’s application for life insurance, did not have any personal recollection of his examination of Logan. Dr. Ruthenberg’s medical report, however, was made part of the insurance policy and the policy has been introduced into evidence by the plaintiff. The report was filled out by Dr. Ruthenberg and signed by Logan verifying that the statements were fully and accurately recorded. The medical report revealed that Logan answered “No” to a question concerning whether he ever had or had been told he had any disorder of the blood. It also revealed that he answered “No” to questions concerning whether he ever had blood studies or other special examinations made, and whether he had been in a hospital within the last 10 years.

On October 1, 1968, Logan died for reasons other than suicide at the age of 33.

As defendant Allstate was granted a judgment n.o.v. in the lower court we will affirm the trial court’s judgment only if all the evidence when viewed in its aspect most favorable to the plaintiff, Mrs. Logan, so overwhelmingly favors the movant, Allstate, that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R.R. Co. (1967), 37 Ill.2d 494, 229 N.E.2d 504.

If the insured Logan made any misrepresentations which were made with actual intent to deceive or which materially affect acceptance of the risk by the insurer in its application for insurance, the insurer, Allstate, may rescind the policy and refuse to pay any benefits. (Campbell v. Prudential Insurance Co. (1958), 15 Ill.2d 308, 155 N.E.2d 9; Ill. Rev. Stat. 1967, ch. 73, sec. 766.) The plaintiff contends that the evidence shows that the insurer made no misrepresentation concerning his health because he did not know and the doctors did not tell him about his serious condition.

Statements which are false and material are misrepresentations which will void the contract even if they were made in good faith or by mistake. (Weinstein v. Metropolitan Life Insurance Co. (1945), 389 Ill. 571, 60 N.E.2d 207. Campbell v. Prudential Insurance Co., supra.) However, for a false statement to be a misrepresentation it must have a tendency to mislead. (Weinstein v. Metropolitan Life Insurance Co., supra.) A statement cannot be misleading unless it is of such character that an insurance company could reasonably rely upon it in order to determine the risk. Accordingly, an insurance company would not expect an applicant to answer questions concerning his past and present condition of his health with the skill of a trained physician. Thus, an insurance company cannot expect or require an applicant himself to disclose information concerning his health which is beyond the ken of an ordinary layman when he has not been given such information by his doctor. Cf. Min nesota Mutual Life Insurance Co. v. Link (1907), 230 Ill. 273, 82 N.E. 637.

In this case Logan made no misrepresentation when he did not disclose that he was suffering from lymphoma. Such information was beyond his knowledge as a layman and the evidence shows that this information was not disclosed to him by his doctors. However, the evidence reveals that Logan was told he had some type of blood disorder and that he was hospitalized for 15 days in May and June of 1968. Yet, the medical report indicates that he told the examining doctor he had no blood disorder and had not been hospitalized. These statements are clearly false and show an absence of good faith on the part of the insured. The statements were also material. Testimony of the defendant’s expert witness relating to the materiality of the misrepresentations on the acceptance of the risk is undisputed. (Cf. Mooney v. Underwriters at Lloyd's, London (1966), 33 Ill.2d 566, 213 N.E.2d 283.) Therefore, Logan made misrepresentations of such character as would permit Allstate to rescind the contract and refuse to pay any benefits under it. Ill. Rev. Stat. 1967, ch. 73, sec. 766.

The plaintiff, however, contends that the evidence also shows that the insured Logan completely and truthfully disclosed his present and past medical history to the insurance agent but Allstate’s agent told him his medical history was not important and entered false answers in the application. The plaintiff argues, therefore, that Allstate is estopped from relying on these false answers in its attempt to rescind the policy.

It has long been the rule in Illinois that when an applicant for insurance gives correct oral answers to questions propounded by an insurance agent but the insurer’s agent incorrectly records these answers the insurer cannot rely upon the falsity of the answer to avoid the policy. (Niemann v. Security Benefit Association (1932), 350 Ill. 308, 183 N.E. 223; Guter v. Security Benefit Association (1929), 335 Ill. 174, 166 N.E. 521; Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350; Provident Savings Life Assurance Society v. Cannon (1903), 201 Ill. 260, 66 N.E. 388; Royal Neighbors v. Boman (1898), 177 Ill. 27, 52 N.E. 264; Andes Insurance Co. v. Fish (1874), 71 Ill. 620; Oberg v. John Hancock Mutual Life Insurance Co. (1969), 114. Ill.App.2d 152; 251 N.E.2d 918; Annot., 26 A.L.R.3d 6 (1969) sec. 3, 4.) The insurer cannot rely on these incorrectly recorded answers even when the insured knows that the agent has entered answers different from the ones he gave where the incorrect answers are entered pursuant to the agent’s advice, suggestion, or interpretation. (Royal Neighbors v. Boman (1898), 177 Ill. 27, 52 N.E. 264. See Annot., 26 A.L.R.3d 6 (1969), sec. 7). In these situations, the agent’s knowledge of the truthfulness of the applicant’s statement will be imputed to the insurance company. (Nieman v. Security Benefit Association (1932), 350 Ill. 308, 183 N.E. 223; Guter v. Security Benefit Association (1929), 335 Ill. 174, 166 N.E. 521; Weisguth v. Supreme Tribe of Ben Hur (1916), 272 Ill. 541, 112 N.E. 350; Provident Savings Life Assurance Society v. Cannon (1903), 201 Ill. 260, 66 N.E. 388.) Only where the applicant has acted in bad faith, either on his own or in collusion with the insurer’s agent, will a court refuse to impute the knowledge of the agent to the insurance company. Germania Fire Insurance Co. v. McKee (1880), 94 Ill. 494; Tesluk v. Metropolitan Life Insurance Co. (1970), 130 Ill.App.2d 290, 264 N.E.2d 566.

When the evidence is viewed in the aspect most favorable to the plaintiff, the evidence discloses that the agent Bieck had knowledge of Logan’s prior hospitalization and anemic condition. Logan’s wife testified that Logan revealed this information when Bieck was filling out the application. Her testimony was not contradicted by Bieck who could not remember his visit. We will not, however, impute the agent’s knowledge to Allstate because the evidence also shows that Logan gave answers which he knew to be false to the insurer’s medical examiner in spite of Bieck’s admonition that the doctor’s examination was the all-important factor in Allstate’s decision to insure him. Logan’s course of conduct in giving these false answers to the medical examiner reveals that Logan lacked good faith in his dealings with Allstate. Allstate, therefore, is not estopped from relying on the falsity of Logan’s answers in avoiding the insurance policy.

The trial court correctly granted defendant’s motion for judgment n.o.v. When all the evidence produced at trial is viewed in its aspects most favorable to the plaintiff, Mrs. Logan, it so overwhelmingly favors the movant, Allstate, that no contrary verdict based on that evidence could ever stand. The evidence when viewed in its aspects most favorable to the plaintiff reveals that the insured Logan made material misrepresentations to the insurer’s agent. The evidence also discloses that Logan made these misrepresentations in bad faith and therefore Allstate is not stopped from relying upon these misrepresentations even though the evidence also shows that one of its agents had knowledge of the truth. Accordingly, the decision of the trial court which permits Allstate to avoid the contract under section 154 of the Insurance Code (Ill. Rev. Stat. 1967, ch. 73, sec. 766) is affirmed.

Judgment affirmed.

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


author: Mr. PRESIDING JUSTICE SIMKINS

text:
      In re Estate of Kenneth A. Schaaf, Deceased—(Bruce Thomson, as Special Adm'r, Plaintiff, v. Elsie L. Nicol, as Ex’r and Trustee, Defendant-Appellee)—(St. Louis Natural Hygiene Society et al., Defendants-Appellants.)
    (No. 12440;
    June 3, 1974.

      Foreman, Rammelkamp, Rradney, Hall & Dahman, of Jacksonville (James R. Reilly, Jr., of counsel), for appellants.
    Robert C. Hemphill, of Jacksonville, for appellee.
   Mr. PRESIDING JUSTICE SIMKINS

delivered the opinion of the court:

This is an appeal from a decree interpreting Item 6 of the will of Kenneth A. Schaaf, probated on March 31, 1971, which held, in essence, that the executor of said will, Elsie L. Nicol, held a valid testimentary, special, exclusive power of appointment to appoint certain described property and the residue of the estate to organizations to which she knew decedent to be interested in contributing. We agree with that interpretation.

Item 6 of the will provides:

“I hereby bequeath the property located at 206 Hart Street, Franklin, Illinois, together with the two (2) lots on East Street adjoining the rear of this property, together with the residue of my Estate to Mrs. Elsie L. Nicol under the following conditions: This property together with the personal property contained therein is to be transferred to her name, together with the residue of my Estate which shall be used for the upkeep and expenses involved in handling the property. It is my wish that if Mrs. Nicol so desires, she may sell, at any time, any of the personal property or real estate heretofore mentioned and that the proceeds from the sale of same be given to the organizations in which she knows I am interested in contributing.
In case of the decease of Mrs. Elsie L. Nicol before all the real estate, property, or residue of my Estate has been sold or disposed of in the way I have herein set forth, it is my wish that the remainder of my Estate, as set forth in Item 6 of this Will, be sold at private auction and the proceeds from such sale be divided equally among the following:
1. St. Louis Natural Hygiene Society, St. Louis, Missouri
2. Missouri League for Humane Education, St. Louis, Missouri
3. American Natural Hygiene Society, Chicago, Illinois
4. Natural Food Associates, Atlanta, Texas
5. Anti-Cruelty Society, 157 W. Grand Avenue, Chicago, Illinois
6. Illinois Citizens’ Animal Welfare League, Chicago, Illinois
7. National Health Federation, Monrovia, California
In other words, Mrs. Nicol will act on my behalf as an overseer in disposing of the above mentioned real estate and personal property according to the personal instructions- I have given her for handling same.”

In interpreting this provision the trial court made the following findings: (1) The testator did not intend any of the clause provisions to benefit Mrs. Nicol personally; (2) The clause created in Mrs. Nicol a power in the nature of a trust; (3) The objects of the class are known to Mrs. Nicol and consist of organizations in which she knew the decedent to be interested in contributing; (4) The power given to Mrs. Nicol is a special power limited to a defined class; and (5) If the property is not appointed by Mrs. Nicol during her lifetime then the seven named organizations will become the beneficial owners thereof.

It is obvious from an analysis of Item 6 that the testator intended to create a special, exclusive, testamentary power of appointment and not a trust or a power in trust. Indeed, no particular words are necessary to create a power, and the power may be created by implication where it appears from the will that the power was intended to be created. (See 30 Ill.L.&Pr. Powers § 3 (1957); Simes, Handbook of the Law of Future Interests, § 59 (2d ed. 1966).) The intent in the instant case is clear for the testator states that “if [Mrs. Nicol] so desires, she may sell, at any time, any of the personal property or real estate heretofore mentioned and that the proceeds from the sale of same be given to the organizations in which she knows I am interested in contributing.” The giving of such- discretionary power (“If she so desires”) is clearly characteristic of a power of appointment and not a trust of a power in trust, for the latter generally impose mandatory duties on the trustee. (See 72 C.J.S. Powers §§ 1, 6 (1951); 30 Ill.L.&Pr. Powers, § 2 (1957).) The fact that the testator felt it necessary to specify the seven named charities as takers in default of appointment (“in case of the decease of Mrs. Elsie L. Nicol before all the [property] * * * has been sold or disposed of in the way I have herein set forth”) is further indicative of the testator’s intent to create a power of appointment.

The findings of the trial court are consistent with the above conclusion that the testator intended to create a testamentary, special, exclusive power of appointment. The trial court found that the testator did not intend to benefit Mrs. Nicol personally. However, Mrs. Nicol, the grantee of the power, need have no beneficial interest in the subject matter of the power to have a valid power to appoint the beneficial interest. (See 72 C.J.S. Powers § 7 (1951); 30 Ill.L.&Pr. Powers § 2 (1957); Palmer, The Effect of Indefiniteness on the Validity of Trusts and Powers of Appointment, 10 U.C.L.A. L. Rev. 241, 272 (1963).) Indeed, the testator specifically transferred to Mrs. Nicol legal title to the property, an act consistent with the traditional idea of a power of appointment being an event whereby the equitable ownership of property shifts to a transferee by the terms of the instrument creating the power. (See Simes, Handbook of the Law of Future Interests § 55 (2d ed. 1966).) The fact that legal title lies in the donee of the power does not transform the power into a trust, but is simply a convenient vehicle to facilitate a sale of the property involved. The trial court also found the power given to Mrs. Nicol to be a special power limited to a defined class known to Mrs. Nicol. This is consistent with the general definition of a special power of appointment as “exercisable only in favor of persons or a class of persons designated or described in the instrument creating the power.” (72 C.J.S. Powers § 6 (1951).) The record substantiates this conclusion in that Mrs. Nicol stated at the hearing that she knew the organizations in which decedent was interested. The trial court further found that if the property is not appointed by Mrs. Nicol in her lifetime, then the seven named organizations will become beneficial owners thereof. This is simply a finding that there exists a provision for takers in default should Mrs. Nicol exceed the discretion given to her under the power or should she die before the power is exercised, a common provision inserted in a power of appointment. The trial court then found the disposition in Item 6 to be “a power in the nature of a trust.” This is obviously true of all powers because of the fiduciary duties involved. Hence, if a power is exercised, the directions of the donor must be carried out, thus giving the power certain characteristics of a trust. (See 72 C.J.S. Powers §1 (1951).) This similarity does not, however, automatically change a power into a trust.

The testator then intended to create a testamentary, special, exclusive power of appointment. It is testamentary in that it was created by the will of the testator. It is special in that the number of possible takers is limited to a defined class specified in the will, and it is exclusive in that the will gives Mrs. Nicol complete discretion to appoint property to any particular class member in any amount she desires or to not appoint any property whatsoever.

Having arrived at the testators intent, we must next decide whether the attempted creation of the power was valid. It is contended that the power in the instant case is invalid because of the indefiniteness of the beneficiaries in the class. This argument, however, is lacking in merit and simply confuses the law of trusts with the law of powers. It has been stated that “* * * In power law, there is no basis for invalidity analogous to the definite beneficiary rule in the trust area. Beyond the requirement that the testator must furnish a standard ■whereby appointees can be identified as falling within the designated class, there is no requirement as to size or specificity of the class of potential appointees.” (Citations omitted.) (Emphasis added.) (Comment, Wills— Devise to Executor for Further Distribution — Application of Trust and Power Doctrines, 56 Mich. L. Rev. 1167, 1172 (1958). See also Watts’s Estate, 202 Pa. 85, 51 A. 588; In re Dormer’s Estate, 348 Pa. 356, 35 A.2d 299; Baldwin v. Davidson, 37 Tenn.App. 606, 267 S.W.2d 756; Townsend v. Gordon, 308 Mich. 438, 14 N.W.2d 57; Simes, Handbook on the Law of Future Interests § 56 (2d ed. 1966).) The most celebrated case in this regard is In re Rowland’s Estate, 73 Ariz. 337, 241 P.2d 781, where the court upheld a testamentary, special, exclusive power of appointment to a class consisting of “my close friends.” The court there stated that the term “friends” was in the context of that case sufficiently certain so that any future court could say that any particular person either was or was not a friend.

We choose to follow the Rowland’s Estate line of cases and hold that the class created here, “to the organizations in which she knows I am interested in contributing,” provides a sufficient standard whereby appointees may be identified by the court. Indeed, challenges to specific appointments made in exercise of the power will be limited to the contention that the organization appointed was not one to which the testator was interested in contributing. The standing to protest the appointment would be limited to those organizations in whom the testator was so interested. A finding in this regard would be consistent with the court’s traditional fact finding responsibilities for it should be noted that we are here dealing with an objective standard — organizations in which the testator is “interested”. In the context of this case extrinsic evidence of the testator’s interest would be available to the court in tire event of challenge to any appointment made pursuant to the power. Within the will itself is clear indication of the types of organizations in which he was interested. In addition, proof of interest as evidenced by records of past contributions or other provable evidence of interest demonstrated during testator’s lifetime could be considered by the court. Therefore, we find that an objective standard does exist whereby .appointees may be identiBed by the court as falling within die designated class, and that such a standard is sufficient for the court to adequately dispose of any possible challenges should that contingency arise.

Accordingly, for the reasons stated above the judgment of the trial court is hereby affirmed.

Judgment affirmed.

CRAVEN and CLARK, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Lloyd Williams, Defendant-Appellant.
    (No. 57767;
    First District (5th Division)
    March 1, 1974.

      Rehearing denied May 10, 1974.

      James J. Doherty, Public Defender, of Chicago (Susan K. Horn, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Thomas A. Mauet, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

LORENZ, J., took no part.


author: Mr. JUSTICE DIER.INGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nathan Dozier, Defendant-Appellant.
    (No. 58770;
    First District (4th Division)
    April 10, 1974.

      Rehearing denied May 29, 1974.

      James J. Doherty, Public Defender, of Chicago (Saul H. Brauner, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Thomas A. Mauet, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIER.INGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was found guilty by a jury of armed robbery, attempt murder, and aggravated battery. He was sentenced to a term of 15 to 30 years on the armed robbery, 15 to 20 years on the attempt murder, and 5 to 10 years on the aggravated battery. All sentences were to run concurrently.

The issues presented on appeal are (1) whether the court erred in denying the defendant’s motion to suppress the in-court identification by the victim; (2) whether the defendant was properly convicted and given separate sentences for the offenses of armed robbery, attempt murder, and aggravated battery; and (3) whether the sentences imposed by the trial court were excessive.

On March 13, 1970, Mrs. Bernice Odem, age 75, was employed by the Monitor Cleaners, located at 838 Montrose Avenue, Chicago, Illinois. Mrs. Odem arrived at work at 8:30 A.M. At approximately 10 A.M. two men entered the store, one standing by the steps and the other near the counter. Mrs. Odem identified the defendant, Nathan Dozier, as one of the men who entered the store. The other man asked Mrs. Odem for a pair of pants but did not produce a ticket. The defendant then pulled out a gun and the other man pulled out a knife and ordered Mrs. Odem into the back of the store. She was told to lie on the floor. Mrs. Odem told the two men there was money in the store register, and the defendant went to the front of the store and got it. The other man attempted to remove an engagement ring from Mrs. Odem’s finger, but was unsuccessful. He did remove an onyx ring. At this time Mr. Michael Dubin, part-owner of the cleaners, entered the store. Mr. Dubin went into the back of the store, and when he saw what was taking place he told Mrs. Odem to give the man the ring. The defendant then held a gun on Mr. Dubin while the other man frisked him and took his money. During this encounter Mrs. Odem was lying on her back and was able to observe the events taking place. Mr. Dubin then hit the defendant on the wrist and a struggle ensued. Mrs. Odem heard some shots but did not see who fired them. Someone then came over to her and shot her twice. The defendant’s accomplice stabbed her several times. Mrs. Odem was taken to Weiss Memorial Hospital for first-aid treatment and then removed to Ravenswood Hospital. Mr. Michael Dubin died as a result of his gunshot wounds.

At trial in May, 1972, Mrs. Odem testified that at a previous trial regarding the same charges she did not identify the defendant. Mrs. Odem further testified she was never asked to identify the defendant at the prior trial, and she had told the police she would be able to identify her assailant if she saw him in person. Mrs. Odem positively identified the defendant in open court at the May, 1972, trial.

Mr. Norris White testified the defendant and one Spencer Malcom were living with him and his wife on March 13, 1970. Mr. White also testified the defendant and Malcom told him they had robbed a cleaners and “killed some people.” White testified that Malcom told him he (Malcom) did the stabbing and the defendant did the shooting.

At the conclusion of the trial, the jury found the defendant not guilty of the murder of Michael Dubin, but found the defendant guilty of armed robbery, aggravated battery, and attempt murder of Bernice Odem. The defendant was sentenced to a term of 15 to 30 years on the armed robbery, 5 to 10 years on the aggravated battery, and 15 to 20 years on the attempt murder. All sentences were to run concurrently.

The defendant first contends the court erred in denying the defendant’s motion to suppress the in-court identification by Mrs. Bernice Odem. The defendant contends the in-court identification was tainted because Mrs. Odem failed to make an in-court identification during the prior trial and her subsequent in-court identification at the instant trial was based on her observation of the defendant at the prior trial.

We do not agree with the defendant’s contention. Mrs. Odem did not make an in-court identification at the first trial because she was never asked to do so. Mrs. Odem testified at the instant trial she was not asked to identify the defendant at the prior trial, and she had told the police she would be able to identify the assailant if she saw him in person. Mrs. Odem observed the defendant at close range in a well-lighted room for approximately 20 minutes during their encounter. This prior uninfluenced observation constituted a sufficiently independent origin to support Mrs. Odem’s in-court identification. (People v. Bolden (1970), 123 Ill.App.2d 150.) In People v. Moore (1972), 7 Ill.App.3d 315, the defendant was convicted of attempt murder, armed robbery, and aggravated battery. In affirming defendant’s conviction, the court held:

"'* * * [E]ven though an out-of-court procedure may have been unnecessarily suggestive, nonetheless, denial of due process depends on whether * * * identification at trial was dependent on or influenced by the improper viewing and that the question to be determined is whether the witness’s identification had an origin independent of the improperly suggestive confrontation.’ ”

In the instant case the viewing of the defendant by Mrs. Odem at the prior trial, even if suggestive, did not lead to error because Mrs. Odem’s identification had an independent origin. The trial court therefore properly denied defendant’s motion to suppress the in-court identification.

The defendant next contends the court erred in convicting him of three offenses which arose out of the same transaction. In support of his contention the defendant cites the decision in People v. Duszkewycz (1963), 27 Ill.2d 257, wherein the supreme court held different punishments cannot be imposed for a single act, even though different ingredients are involved in the crimes.

We befieve the offenses of aggravated battery and attempt murder arose out of the same transaction. Therefore, defendant’s sentence of 5 to 10 years for aggravated battery is vacated. However, we believe the offense of armed robbery was a separate offense from the offense of attempt murder. It is clear from the facts in the instant case that the offense of armed robbery was completed before the offense of attempt murder was committed. The shooting and stabbing of Mrs. Odem did not take place during the commission of the armed robbery but after the robbery had been completed. Not only are different elements of proof necessary to establish each offense, but the shooting and stabbing of the victim was not a component part of the armed robbery. In People v. Gates (1970), 123 Ill.App.2d 50, the defendants were found guilty and sentenced for armed robbery, attempt rape, and aggravated battery. In affirming the sentences the court held the defendants’ acts did not constitute one single transaction but represented divisible conduct resulting in three separate offenses. The court stated:

“Defendants lastly contend that they were improperly convicted of several offenses arising from the same transaction, citing People v.. Duszketvycz, 27 Ill.2d 257. We consider this to be without merit, as defendants’ acts did not constitute, one single transaction, but, rather, represented divisible conduct resulting in three separate offenses. The robbery was complete before the rape was attempted, and that offense had been completed before the stabbing.”

The defendant finally contends the sentences imposed by the trial court were excessive.

We believe the defendant’s contention is without merit. Courts in Illinois have repeatedly ruled where the sentences imposed are within limits set by statute, they will not be disturbed on review unless they constitute a substantial departure from fundamental law and its spirit and purpose. (People v. Bricker (1971), 131 Ill.App.2d 917.) In People v. Pisarski (1972), 6 Ill.App.3d 235, the court refused to reduce a murder sentence of a 19-year-old defendant with no prior record. The court noted that while the sentence was a serious one, so also was the crime committed. Considering the serious nature of the offenses committed by the defendant in the case at bar, we believe the sentences imposed by the trial court were proper.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is affirmed as to the armed robbery and attempt to murder and the sentence for aggravated battery is vacated and set aside.

Affirmed as modified.

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


author: Mr. JUSTICE HALLETT.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Flonzell Tate, Defendant-Appellant.
    (No. 58958;
    First District (1st Division)
    April 8, 1974.
    Paul Bradley, Deputy Defender, of Chicago (James R. Streieker, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Alan W. Brothers, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE HALLETT.


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie Thompkins et al., Defendants-Appellants.
    (No. 59595;
    First District (5th Division)
    April 19, 1974.
    George C. Howard, of Chicago, for appellants.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Lee T. Hettinger, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

After a bench trial, defendants Willie Thompkins, Glenn Lee, Fred Miller and Lawrence Moore were convicted of aggravated battery and attempt murder, and were sentenced, Thompkins to 15 to 20 years and Lee, Miller and Moore to 10 to 20 years. On appeal defendants contend that the evidence is insufficient to prove their guilt beyond a reasonable doubt.

The following evidence was adduced.

Michael Weaver testified for the State that:

He is 23 years old, married and lives in Markham, Illinois, with his parents, brothers and sisters, wife and child; that he has known defendants a long time. He joined the Blackstone Rangers in 1964; Thompkins, Lee and Miller were also Rangers. He served in the armed forces from 1967 to 1969 including 11 months in Vietnam and was honorably discharged. He worked as a mechanic for the South Suburban Bus Company. He attended some meetings of the Rangers, but no longer paid his dues. He saw Lee, Miller and Moore on occasion, but they did not speak to him and appeared hostile. He did not see Thompkins between the time of his discharge in August 1969 to the date of the shooting on September 1, 1970.

On August 31, 1970, at about 9:30 P.M. he was at home when he received a phone call from Berwyn Thompkins, Willie’s younger brother, asking him to come to their house and escort Willie’s girl friend Joyce Mack to her home in Phoenix, Illinois. He arrived there at 10 P.M. Berwyn, Joyce and he talked and played records for about 30 minutes when Willie walked into the living room and said he wanted to talk with him. They went outside and met Lee, Miller, Moore and a friend named Stringfellow and all of them got into Moore’s car. Willie and Stringfellow sat in the front seat next to Moore and he sat in the back seat between Lee and Miller.

In response to Willie’s questions, he denied that he was a police informer, or that he had seen the Markham police chief in the last two weeks or that he had done anything wrong except not rejoining the Rangers.

Willie gave directions to Moore and when they arrived at 160th Street and Gauger Avenue everyone except Moore stepped out of the car and walked toward a field. Willie kissed him on both cheeks, stepped back, placed his right hand over his chest and said, “All power to the People” or, “all power to Black-P-Stone.” He saw muzzled sparks and felt pain in his chest. He turned to run and heard more shots. His legs gave out and he fell to the ground attempting to cover his head. Two more shots went by his head and a third shot struck his right hand. He pretended that he was dead and they left.

It took him between 30 minutes to an hour to drag himself 75 feet to a nearby house. He scratched the porch of the house with a beer can to attract attention. He estimated that he was shot sometime after 11 P.M. Markham police officer Michael Vest arrived sometime thereafter and an ambulance took him to the hospital. The shots left him paralyzed from the waist down. He feared that his family would be endangered and so he did not tell Vest the truth regarding the shooting. He knew that shots had been fired into homes of two others who were testifying against Willie in another matter. He continued to deny knowing his assailants despite his father’s plea that he give the police a truthful statement concerning the shooting incident. On September 5, Markham police Sergeant James Lawrence visited him at the hospital and later that same day Lawrence returned with Detective James Hunt. During the second visit he signed a statement and a complaint against defendants.

On cross-examination, Weaver admitted having seen Willie during the period between his discharge from the army and the night of the shooting.

On the day following his testimony, Weaver was recalled to the stand by the State and corrected his testimony by testifying that he was only 20 years old and that he had never been stationed in Vietnam during the period of his military service. He explained that he falsified his age to the Selective Service so that he could get a job and he lied about his service record to the personnel at the Veterans Hospital in order to obtain a better priority for his medical needs.

Michael Vest, for the State:

He is a Markham police officer. On the morning of September 1, 1970, at approximately 1:40 A.M., he was dispatched to 161st Street and Gauger Avenue to investigate a report of a prowler. He found Michael Weaver lying on his stomach scratching a cement porch with a tin can. Weaver had been shot, but denied knowing his assailant. He saw marks on the ground where Weaver had dragged himself. He searched the area, but found no physical evidence.

James Hunt, for the State:

He is a Markham police detective. On September 6th he went to In-galls Hospital to take Weaver’s statement. The next day he obtained arrest warrants for the defendants. As he sought to arrest Willie Thompkins on September 8, Willie attempted to flee. After placing him under arrest, but prior to informing him of the charges, Thompkins said, “Man, you know Weaver is never going to make it to court.”

James E. Lawrence, for the State:

He is a Sergeant in the Markham police department. On September 6th he and Detective Hunt went to Ingalls Hospital to take a statement from Weaver. He arrested Lee and Miller two days later. When he informed Lee that he was under arrest, Lee said, “You cant pin that * * * Weaver thing on me.” This statement was not made in response to a question or anything that Lawrence said.

For the defense:

Glenn Lee, testified on his own behalf:

He was visiting his girl friend Lavetta Cotton at her home on August 31, 1970, at about 8:30 P.M. Her mother, father and brother Andre were present. Andre and he went to the basement between 10 and 10:30. They talked and played the guitar until he left sometime after 1 A.M. He was arrested by Sergeant Lawrence on the evening of September 8 as he was walking down the street with two companions. He denied saying anything to Lawrence other than to ask him the reason for his arrest. Lawrence replied that he was charged with the attempted murder of Michael Weaver. He admitted that he is a “Blackstone Ranger” and knew Weaver, Thompkins, Moore and Miller.

Andre Cotton, Lavetta Cotton and Mrs. Joan Cotton corroborated Lees testimony that he had visited their home on August 31, 1970, and did not leave there until well after midnight.

There was a stipulation that a cab picked up a passenger at the Cotton home on September 1st at 2:24 A.M.

Willie Thompkins, testified on his own behalf:

He was working on August 31, 1970, at M. A. Lombard & Sons and came home at approximately 4:30 P.M. He left his house for approximately 2 hours to play basketball. He spent the remainder of the evening at home with his parents, three brothers, girl friend Joyce Mack and their two kids. Weaver did not come over to his house that night and he did not see him that evening or the next morning. His girl friend left by cab at approximately 1:30 A.M. The police arrested him on September 8th while he was lying down on his bed. The witness denied saying to the police, “Weaver will never come to Court.”

Willie Thompkins, Sr., Essie Thompkins, Berwyn Thompkins and Joyce Mack, substantially corroborated defendant Thompkins’ testimony.

There was a stipulation that a cab picked up a passenger at the Thompkins’ home on September 1, at 1:40 A.M.

Fred Miller, testified on his own behalf:

On August 31, 1970, his sister Lois picked him up at about 11:10 P.M. after his shift ended at Interlake Steel and dropped him off at the home of his friend Kenneth Eady. Eady wasn’t there so he walked home, arriving at 11:35 P.M. He telephoned his girl friend Betty Harris and talked to her for a short time and then fell asleep on the living room couch only to be awakened a short time later by his father who told him to go to bed. He went to bed before midnight. He denied seeing either the other defendants or Weaver that night.

Lois Miller, Fred Miller, Sr., Betty Harris and Russell Nyberg, substantially corroborated defendant Miller’s alibi testimony. Nyberg, personnel foreman for Interlake Coiporation, produced Miller’s time card indicating that it had been “punched out” at just after 11 P.M. on August 31.

Lawrence Moore, testified on his own behalf:

On August 31, 1970, he and Stringfellow drove to Chicago, returning to Markham at approximately 9 P.M. After dropping off StringfeUow, he drove directly home. He left his house only for a short time to go to the store for his mother. Upon returning, he telephoned his girl friend Willa Handy, and they talked for approximately a half hour. He called her again at 11:15 P.M. and they talked for nearly three hours. The witness denied having any knowledge of the shooting of Weaver.

Willa Handy substantially corroborated Moore’s alibi testimony.

Moore’s mother Helen Maynard in addition to substantially corroborating Moore’s alibi testimony also testified that she received a phone call from Weaver on the second Sunday in September. Weaver told her that “Lawrence is being framed” and that she should bring a lawyer to Hines Hospital and Weaver would give him a statement. She did not, however, go to the hospital.

OPINION

Defendants contend that the evidence was insufficient to establish their guilt beyond a reasonable doubt. They argue that Weaver lacked credibility, that his testimony was controverted by each of the defendants and their alibi witnesses, and that extrinsic evidence substantiated defendants’ testimony.

Defendants’ attack on Weaver’s credibility, among other things,, points to the fact that he lied about his age and his military service during his first appearance on the witness stand, that he originally told the police that he was unable to identify his assailants, and that he offers no motive why defendants would shoot him. They urge that the testimony of defendants and their alibi witnesses supported by such extrinsic evidence as Miller’s time card and taxi cab records precludes their convictions based solely on Weaver’s testimony. Thus, they raise the questions of credibility of witnesses and the weight to be given to their testimony.

It is neither the duty nor the privilege of this court on review to substitute its judgment for that of the trial judge and we cannot reverse a criminal conviction unless the evidence is so unsatisfactory as to raise a reasonable doubt of guilt. (People v. Nicholls, 44 Ill.2d 533, 256 N.E. 2d 818.) The testimony of a single witness, where it is positive and the witness is credible, is sufficient to convict even though such testimony is contradicted by those accused (People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631) and their alibi witnesses. (People v. Ackerson, 37 Ill.2d 117, 224 N.E.2d 849; People v. Mero, 4 Ill.2d 327, 122 N.E.2d 796.) Furthermore, the mere presence of conflicting evidence will not justify us in differing from the finding by the trier of fact. People v. Reese, 54 Ill.2d 51, 294 N.E.2d 288.

We have extensively reviewed the record and find no basis to interfere with the trial judge’s evaluation of the evidence. The trial judge found the victim’s testimony to be credible and chose not to believe defendants’ alibi evidence. We cannot say that these determinations were manifestly erroneous. Here, Weaver’s positive identification is significant since he had ample opportunity to observe the defendants and had known each of them for many years. We do not believe that Weaver’s credibility is impaired by his inability to offer a motive for defendants’ actions, or by his failure to promptly identify his assailants or because of his misstatements at trial concerning his age and place of military service. These matters were explained in part or corrected by his subsequent testimony and, in any event, the trial judge could properly give greater weight to Weaver’s testimony recounting the events on the night of the shooting.

Defendants also argue that their alibi testimony should not have been disregarded and that it was sufficient to create a reasonable doubt as to their guilt. The trial judge is not obliged to believe the alibi testimony over the positive identification of those accused, even though the alibis may be established by a greater number of witnesses. (People v. Jackson, 54 Ill.2d 143, 295 N.E.2d 462; People v. Gaiter, 8 Ill.App.3d 784, 291 N.E.2d 172.) Here, the testimony of defendants and their alibi witnesses was considered with regard to their relationships, age, candidness, fairness, intelligence and demeanor at trial. The trial judge who observed the witnesses, was fully justified in discounting their testimony even though these witnesses were not impeached. (See People v. Ellis, 26 Ill.2d 331, 186 N.E.2d 269.) The time card indicating that Miller was at work until 11 P.M. on the night in question and the records of the taxi cabs that indicate passengers were picked up at the Thompkins and Cotton homes at 1:40 A.M. and 2:24 A.M. respectively, do not, as those defendants suggest, necessarily corroborate their alibis. Since the precise time of the shooting is uncertain, the extrinsic evidence offered does not foreclose defendants’ participation in the crime. Where, as here, the trial judge’s finding was based on sufficient evidence, this court will not reverse. We find the defendants were afforded a fair trial and that their guilt was established beyond a reasonable doubt.

The judgments of the circuit court are affirmed.

Affirmed.

SULLIVAN, P. J., and BARRETT, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Robinson, Defendant-Appellant.
    (No. 58088;
    First District (1st Division)
    April 22, 1974.

      James J. Doherty, Public Defender, of Chicago (Richard D. Kharas, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

BURKE, J., took no part.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Willie McLilly, Defendant-Appellant.
    (No. 58336;
    First District (1st Division)
    April 22, 1974.
   PER CURIAM.

EGAN, P. J., took no part.

James J. Doherty, Public Defender, of Chicago (David Hurschboeck, Assistant Public Defender, of counsel), for appellant.

Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Lawrence D. O’Gara, Assistant State’s Attorneys, of counsel), for the People.