author: Mr. JUSTICE STAMOS

text:
    Ann Jacobson, et al., Plaintiffs-Appellees, v. 190 North State Street, Inc. et al., Defendants-Appellants,—(190 North State Street, Inc. et al., Third-Party Plaintiffs-Appellees, v. Fred Hamilton, Individually and d/b/a Fred Hamilton Decorating Co., Third-Party Defendant-Appellant.)
    (No. 54877;
    First District
    — November 9, 1971.

      Howard and French, of Chicago, (Richard G. French, Stuart N. Lit-win, and Gary E. Dienstag, of counsel,) for appellant.
    John A. Doyle, Hugh J. McCarthy, and Joseph B. Lederleitner, all of Chicago, for appellee.
    Robert L. Broady and George J. Gore, both of Chicago, for third-party defendant-appellant.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

This action was brought under the Structural Work Act of Illinois, sometimes referred to as the Scaffold Act (Ill. Rev. Stat. 1969, ch. 48, pars. 60, 69), to recover damages for the death of plaintiffs’ father who fell from the top of an elevator cab while painting the elevator shafts in defendants’ building. Defendants filed a third-party action against the decedent’s employer, Fred Hamilton Decorating Co., seeking indemnity. A jury trial was held. At the close of all the evidence defendants moved for a directed verdict against plaintiffs and the third-party defendant. The third-party defendant moved for a directed verdict at the close of the third-party plaintiffs’ case. The trial court granted a directed verdict for third-party plaintiffs and denied the other motions. The jury then returned verdicts in favor of John Jacobson for $4500, in favor of Mariann Jacobson for $7500, in favor of Anthony Jacobson for $3500 and in favor of the adult children as executors of the estate of their mother, Ann Jacobson, for $10,000. The posttrial motions of both the defendants and the third-party defendant were denied. Defendants and the third-party defendant have appealed from those orders.

On March 13, 1964, plaintiffs’ decedent, August Jacobson, then employed by Fred Hamilton Decorating Co., was engaged in painting the elevator shafts in defendants’ building, the State and Lake Building at 190 North State Street. He accidentally fell from the top of an elevator cab which he was using as a painting platform and died from injuries sustained in the fall.

Sometime prior to March 13, 1964, Fred Hamilton had been approached by John Engler, the building manager of the State and Lake Building, concerning a smoke odor which had remained in the building following a recent fire. Hamilton had done painting work in that building for twenty-seven years. His recommendation regarding this problem was that, in addition to other renovations, the elevator shafts should be washed and painted. Engler concurred, and Hamilton submitted a written cost estimate. No written contract was executed.

Because this was an office building, and still in use, it was agreed that the work in the elevator shafts would be done after 5:00 P.M. each day. In lieu of a painting scaffold, Engler made available an elevator, whose top could be used as a painting platform. He also offered to supply either an elevator operator or, alternatively, to install a “whip,” a remote control device which would allow the painters to operate the cab themselves. Hamilton selected the latter and Engler arranged for his electrician, Daniel Sarenac, to install the “whip” whenever it was needed. At approximately 4:30 P.M. each day the elevator needed for that evening would be taken out of normal service, equipped with a “whip” and turned over to the painters. Defendants do not contend that their agent, Engler, was unaware of either this routine or the purpose for which the elevator was used. Except for this elevator-scaffold, all painting equipment was supplied by Fred Hamilton from his storeroom in the basement. During the day the work was supervised by his foreman, who, before leaving at night, would also instruct the evening painters. No one from the building ever told the painters how to do their work, although instructions were given as to the use of the “whip.”

On March 13, 1964, Jacobson and another painter, Norman Sorensen, arrived at the State and Lake Building at about 4:15 P.M. and entered an elevator cab at 4:30 P.M. They were taken to the twelfth floor by Sarenac who installed the “whip” before leaving the painters. The top of the cab was covered with oil droppings which were, in turn, covered by a drop-cloth. No railings or other safety device were used. Sorensen and Jacobson began painting the walls of the shaft, occasionally having to lean over the edge of the cab while holding the cable in order to reach the southwest corner. After about fifteen minutes of painting, Sorensen happened to turn around and saw Jacobson falling head first from the southwest side of the cab.

OPINION

As the basis of their appeal, defendants-appellants object to the failure of the trial court to direct a verdict in their behalf at the close of all the evidence. Specifically, they contend there was a failure of proof on the issue of “having charge,” a failure sufficient to justify granting their motion pursuant to Pedrick v. Peoria & Eastern R.R. Co. (1968), 37 Ill.2d 494, 229 N.E.2d 504. Plaintiffs-appellees respond that defendants’ agents exercised considerable supervision over the work in general and the elevator-scaffold in particular, thereby rendering their principals "in charge” and subject to liability under the Scaffold Act.

Until 1961, Illinois law imposed upon an owner a duty of compliance with the Scaffold Act by the mere fact of ownership. Kennerly v. Shell Oil Co. (1958), 13 Ill.2d 431, 150 N.E.2d 134. This position was abandoned in Gannon v. Chicago, Milwaukee, St. Paul and Pacific R.R. Co. (1961), 22 Ill.2d 305, 319, 320, 175 N.E.2d 785, which held that the plain words of the Scaffold Act precluded deletion of the element of “having charge”:

“As aptly stated by the Federal court at p. 88 of the first Schmid opinion (154 F.Supp.81), antedating the Kennerly case, Tt was not the intention of the legislature that the owner should be liable regardless of who was in charge of the work, but to hold the person in charge of the work responsible regardless of whether it was the owner, contractor, sub-contractor, foreman or other person having charge of the building project. This can be the only logical conclusion. If the legislature intended otherwise, certainly more appropriate and clearer and less ambiguous language could have been used!”

Proof of ownership, without further evidence tending to establish that the owner was “in charge,” is therefore insufficient to establish liability under the Scaffold Act.

Whether one may be deemed as “having charge” of a particular project is an issue to be resolved upon the particular facts and circumstances of each case. While ownership is insufficient by itself, an owner may be “in charge” of any project or portion thereof over which he retains significant powers of control or supervision. Clearly, such supervisory powers must exceed the inherent right of an owner to observe the course of work or to terminate unsatisfactory performance. (Melvin v. Thompson (1963), 39 Ill.App.2d 413, 417, 188 N.E.2d 497.) Where an owner hires, instructs and inspects, and also either directs and controls the continuing operations or retains power to alter or change the work, such evidence raises an issue for a jury determination. Kobus v. Formfit Co. (1966), 35 Ill.2d 533, 221 N.E.2d 633.

The defendants-owners, 190 North State Street, Inc. and B & K Management Corporations, assert that they exercised only minimal supervision over the renovation conducted by an independent contractor, Fred Hamilton Decorating Co. According to Fred Hamilton’s testimony, defendants’ agent and building manager, John Engler, had orally contracted with him for the repainting of the elevator shafts in the State and Lake Budding. Hamdton had done painting work for that budding for the past twenty-seven years. For this particular job, Engler had contacted Hamilton and informed him of a smoke odor in the building’s elevator shafts, the result of a recent fire. It was Hamdton who recommended washing and painting the walls to relieve the odor. He testified repeatedly that no one representing the building management told him how to do his work; not then nor “ever” in the past twenty-seven years.

John Engler’s testimony confirmed his minor role in initiating the painting work. He described his conversations with Fred Hamdton as “consulting” and added: “I asked him what needed to be done, tell me, tell him what our problem is and ask him if he coxdd help us; and in this case, he could, most of it.”

Norman Sorensen was painting from the same scaffold as plaintiffs’ decedent when the latter fell to his death. He testified that both men were employed directly by Fred Hamdton Decorating Co. During the day Hamdton supplied his own foreman, who, before leaving, issued instructions to the evening painters. Sorensen testified that it was either Fred Hamilton or the foreman who instructed them to paint the particular shaft where decedent fell. AH the painting equipment, except the elevator, was supplied by Hamilton from a storeroom which he exclusively maintained. In response to the question, “No one from the budding told you how to do this work, did they?”, Sorensen answered, “No.”

It is clear from the above testimony that defendants neither exercised nor retained any supervisory authority over the cleaning and painting of their elevator shafts. Their only input was supplying and maintaining the elevator-scaffold from which decedent feU. If defendants are to be held “in charge,” such conclusion must stem from their conduct in relation to that elevator.

It cannot be disputed that defendants placed an elevator at the disposal of their painting contractor with fuU knowledge that it would be used as a scaffold. The record further discloses that defendants’ electrician, Daniel Sarenac, adapted the elevator for such use by installing a “whip,” a remote control device whereby the elevator could be operated from its roof by the painters. In addition, Sarenac testified that he cleaned and otherwise maintained aU the buddings elevators at least once a week. It is plaintiffs’ contention that the furnishing, adapting and continuing maintenance of the elevator were in themselves acts of supervision and control and sufficient to render defendants “in charge” for purposes of Section 9 of the Scaffold Act.

The proposition that the supplier of an instrumentality becomes “in charge” of the portion of the work utihzing that instrumentaHty was considered in Vykruta v. Thomas Hoist Co. (1966), 75 Ill.App.2d 291, 221 N.E.2d 99, where the supplier was a lessor. In reversing a jury verdict for plaintiff the court stated at page 301:

“We do not agree with the first proposition of the plaintiff’s thesis that a supplier of a hoist or scaffold comes under the Act and that the supplier can be held liable if the hoist or scaffold is defective * * *. The broad coverage advocated by the plaintiff ignores the limited application of Section 9 to those having charge of the construction. The mere furnishing of equipment does not render one in charge of the construction or that part of the construction in which the equipment is used.”

The fact that the supplier in Vyhruta also installed and periodically adjusted and repaired the instrumentality was of little significance to the court, since plaintiff’s employer maintained primary responsibility for its operation.

In Campione v. Henry C. Lytton & Co. (1965), 57 Ill.App.2d 147, 206 N.E.2d 780, our court encountered the specific issue of the statutory liability of an owner who supplies an elevator to his contractor for use as a scaffold. The pertinent facts were virtually indistinguishable from those now before us. After noting the absence of any overall control or supervision by the defendant, the court addressed itself to plaintiff’s primary argument at page 158:

“Plaintiff reasons that having furnished the instrumentality here involved — the elevator — Lytton was in charge of the instrumentality that was being used as an integral part of a scaffold. # # #
The evidence in the instant case, however, taken in its aspects most favorable to plaintiff, established that Lytton parted with control of the elevator and the elevator shaft. There is no evidence that it exercised any control over or reserved the right to control the operation of the elevator after it had released it to Krahl. It fully appears that Krahl was in charge of the elevator and the elevator shaft for two months prior to the occurrence and that Krahl had adapted the elevator for use by it as a scaffold. We can see no basis in the evidence here to hold Lytton hable for a wilful or knowing violation of the Structural Work Act.”

Plaintiffs seek to distinguish Campione in three ways. First, they note that the owner there parted with control of the elevator two months before the injury occurred. The testimony in the present case establishes that the owners parted with control of their elevator every day at approximately 4:30 P.M., adapting it for the painters’ exclusive use during the evening hours. The fact of release is crucial; the period of time is not. Second, significance is attributed to the fact that in Canvpione plaintiffs employer, not the owner, had adapted the elevator for use as a scaffold. Campione, however, stands for the proposition that release of control of the instrumentality releases the owner from his role of “having charge” of it. The extent of the owner’s previous control over the elevator has no bearing on whether he was in charge of it after it was appropriated by his contractor. Third, plaintiffs contend that Campione was distinguished in Sola v. City of Chicago (1967), 82 Ill.App.2d 266, 227 N.E.2d 102, making Campione inapplicable where the defendant-owner retained an agent on the premises to supervise the work. This distinction is untenable in the case at bar, for there has been no testimony establishing the presence of such a supervising agent on the premises of the State and Lake Building.

The most recent pronouncement of this court regarding the statutory liability of an owner-supplier was in Bruen v. Burton Auto Spring Corp. (1970), 266 N.E.2d 176. The rule of Vykruta v. Thomas Hoist Co., supra, that one who furnishes equipment is not necessarily “in charge” of the construction or that part of the construction in which the equipment is used, was extended to an owner who supplied an overhead crane for use as a scaffold. The court firmly rejected the argument that scaffolding was a severable portion of the overall work for purposes of determining those parties “in charge,” 266 N.E.2d at 178:

“Our study of the cases, particularly those cited by plaintiff, leads us to conclude that in determining defendant’s liability, it is irrelevant who had charge of the scaffold, unless this fact is related to having charge of the work.”

Thus, a finding that defendants were “in charge” of the elevator-scaffold would not determine the issue before us. The fact that one is “in charge” of scaffolding does not necessarily render him “in charge” for purposes of Section 9 of the Scaffold Act, but is mere evidence bearing upon that ultimate issue.

It is undisputed that plaintiffs have the burden of proving that defendants were parties “having charge” of the work, as required for liability under Section 9 of the Scaffold Act. A directed verdict should have been granted if all the evidence bearing on that issue, when viewed in its aspect most favorable to the plaintiffs, so overwhelmingly favored the defendants that no contrary verdict based on that evidence could ever stand. (Pedrick v. Peoria & Eastern R. R. Co., supra.) We hold that plaintiffs failed, as a matter of law, to satisfy their burden of proof regarding the element of “having charge.” Neither defendants nor their agents exercised or retained general supervisory powers. The fact that they supplied and arguably had control of the elevator which served as a scaffold is the only evidence of overall control of the work. Standing alone it did not raise a fact issue requiring a jury determination. Defendants’ motion for a directed verdict against the plaintiffs should have been granted.

This cause is reversed and remanded with directions to vacate the judgment for plaintiffs and grant defendants’ motion for a directed verdict. Because of this reversal, we fmther direct that the judgment for third-party plaintiffs on their indemnity action also be vacated.

Reversed and remanded with directions.

LEIGHTON, P. J., and SCHWARTZ, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Frank Roti et al., Defendants-Appellants.
    (Nos. 55043, 55044 cons.;
    First District
    — November 9, 1971.

      Warren D. Wolfson, and Dean S. Wolfson, both of Chicago, for appellants.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Patrick Driscoll, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

After a bench trial, defendants were convicted of the misdemeanor of Keeping a Gambling Place and were each fined $135. They appeal and contend that their guilt was not established beyond a reasonable doubt and that the court considered matters not in evidence.

Initially, defendants were charged with several gambling offenses, including the offense of which they were convicted, and resisting arrest. The proceeding commenced as a preliminary hearing regarding the felony gambling charges under Ill. Rev. Stat. 1969, ch. 38, par. 28 — 1(a) (5) & (10). Prior to the preliminary hearing the court denied defendants’ motion to quash a search warrant and to suppress evidence. At the close of the preliminary hearing the court found no probable cause on the felony charges. The prosecution and defendants then stipulated that the evidence adduced at the preliminary hearing, other than hearsay, would be admitted at the trial on the misdemeanor charge of being a Keeper of a Gambling Place. Defendants rested after the presentation of the prosecution’s case in chief. Defendants were found guilty of Keeping a Gambling Place and not guilty as to the charge of resisting arrest.

Officer Bernard Martin, on behalf of the prosecution, testified in the preliminary hearing as follows: On December 21, 1969, he went to the premises located at 219 West 23rd Street with Officer Nick Ahrens. They gained entrance to the basement through the rear door and “found the two defendants, Paul Zivalich and Frank Roti, moving around the basement quite rapidly.” On a table they found a Chicago Daily Tribune Sports Section and a quantity of blank water-soluble paper. In a bucket of water next to the table they recovered a quantity of water-soluble paper which had numbers on it. In response to the question whether there were any records of bets, the witness replied: “What I consider markings that they use for bets, yes” and related that he considered them “half bets.” This water-soluble paper is used for sports wagers. Only two pieces of the water-soluble paper had legible notations. While the officers were on the premises, the telephone rang on four occasions and they answered and took some bets. At the time they entered the basement they observed defendants run from the table to the bucket of water. The basement appeared to be “lived in,” but no key to the premises was recovered. The soluble paper and newspaper were admitted into evidence.

On cross-examination the witness testified that on the water-soluble paper in evidence, the number “eleven” was written, and in a circle the digits “25,” and at the bottom the name “Bill.” At this juncture of the proceedings, the court found no probable cause as to the felony gambling charges. After a jury waiver and plea of not guilty to the charges of resisting arrest and Keeping a Gambling Place, trial was commenced. The parties stipulated to the evidence presented on the preliminary hearing, other than hearsay. The only other evidence presented was Officer Nick Ahrens’ testimony concerning the charge of resisting arrest. At the close of the prosecution’s evidence both sides rested, and the court found defendants not guilty of resisting arrest, but guilty of being Keepers of a Gambling Place. The record reflects that the court expressly found that no records of bets were found on the premises and ruled there was no probable cause to believe defendants possessed wager records.

OPINION

In People v. Perry, 34 Ill.2d 229, 232, our Supreme Court had occasion to enunciate the elements of corpus delicti of the statute at bar as follows:

“By the express terms of the statute under which defendant was charged, (Ill. Rev. Stat. 1961, ch. 38, par. 28 — 3) it was necessary for the prosecution to prove three elements beyond a reasonable doubt. First, that defendant owned, occupied or controlled the building at 114 Center; second, that the building was used for purposes of gambling; and third, that defendant “knowingly” permitted such use.”

Similarly, in the case before us, the prosecution had the burden to prove the following three elements beyond a reasonable doubt: First, that the basement in which defendants were arrested was either owned, occupied or controlled by them; second, that those premises were used for the purpose of gambling; and third, that defendants “knowingly” permitted such use.

Defendants argue that the State failed to prove beyond a reasonable doubt that the basement apartment in which they were arrested was owned or occupied by them or under their control. The trial record reveals no evidence of defendants’ ownership. Also, we feel that considerably more than mere presence is connoted by the term “occupied.” The determining issue, therefore, is whether the record adequately shows that the basement was under the control of the defendants.

In support for their argument, defendants cite People v. Hornstein (1965), 64 Ill.App.2d 319, 211 N.E.2d 756. In that case the evidence clearly showed that one co-defendant exercised considerably more dominion over the premises than the other, thereby undermining the contention that both were “in control.” In the instant case, neither defendant can rely on such an evidentiary imbalance, for virtually identical evidence was adduced against each.

Defendants also cite several gambling and possession of narcotics cases holding that proof of one’s mere presence is insufficient to establish one’s exclusive control over premises. People v. Pugh (1967), 36 Ill.2d 435, 223 N.E.2d 115; People v. Lucas (1969), 109 Ill.App.2d 303, 248 N.E.2d 706; People v. Robinson (1969), 102 Ill.App.2d 171, 243 N.E.2d 594.

Defendants minimize the fact that none of these cases concerned a prosecution under section 28 — 3 and are to that extent distinguishable. While that distinction may seem overly technical, a close analysis reveals its substance. In the cases cited, exclusive control of premises is a fact circumstantially relied upon to establish a prima facie case of knowing possession of narcotics or gambling apparatus. “Control” is relevant only to the extent that it tends to prove the ultimate fact of knowing possession. Accordingly, a conclusive showing of “control” is essential before the inferred fact can be judicially recognized. In contrast, in a prosecution under section 28 — 3, “control” is the ultimate issue, and the sufficiency of proof thereon need not be measured by its tendency to prove any other fact beyond “control” itself. We therefore feel that a lesser quantum of proof will suffice to establish “control” under section 28 — 3 than is necessary in possession cases. We note that a contrary interpretation would virtually immunize a carefully compartmentalized gambling operation from the sanctions of section 28 — 3, a result certainly not envisioned by the framers of that statute.

In the case before us, defendants were the only two occupants of a small basement apartment. At the time the police officers entered the apartment, defendants were seen running from a table to a full bucket of water. Upon the table and in the bucket were found water-soluble slips of paper. While these facts might not support a conclusion of knowing possession of the various items within the apartment, we hold that they were adequate to establish the element of “control” under section 28 — 3.

Defendants contend that the testimony of Officers Martin and Ahrens failed to prove beyond a reasonable doubt that the basement at 219 West 23rd Street was used for the purpose of gambling. It is urged that the testimony establishing the presence of a newspaper sports section and water-soluble paper and the receipt of four phone calls of ‘bets” did not suffice to satisfy the prosecution’s burden.

Officer Martin testified that he recovered a quantity of blank, water-soluble paper from a table in the basement apartment in which defendants were arrested. Next to the table was a bucket containing two more slips of water-soluble paper bearing the numbers “eleven” and “twenty-five” and the name “Bill.” Officer Martin offered his opinion, to which there was no objection, that water-soluble paper was typically used for sports wagers. He further testified, again without challenge, that the notations on the slips constituted ‘half bets.” It is clear that this evidence was insufficient to conclusively establish that the paper slips were gambling instruments. (People v. Galan (1969), 110 Ill.App.2d 98, 249 N.E.2d 118.) The trial court recognized this, expressly ruling during the preliminary hearing that the paper slips did not constitute records of bets. As evidence bearing on the issue of gambling purpose, however, this testimony had considerable merit. As noted in Galan, supra, at page 100:

“Possession of soluble paper indicates anticipation of police raids and preparation for quick disposal of incriminating evidence. The immersion of the paper suggests that it may have contained recordings of bets which were dissolved before seizure.”

The testimony regarding the presence of water-soluble paper slips and the presence of half bets thereon created “the suspicion, indeed the probability” that this basement was used for a gambling purpose. People v. Galan, supra, at 100.

At the preliminary hearing, Officer Martin testified that while he was present in the basement apartment he answered the phone four times and received bets on each occasion. Defendants contend that judicial consideration of that testimony was barred by the stipulation that only the non-hearsay evidence of the preliminary hearing would constitute trial evidence. It is their position that the above testimony was necessarily based on hearsay and that despite a failure to object when the testimony was first introduced, the stipulation precluded its later admission. Defendants are overly presumptive in their unsupported conelusion that the testimony that “bets were taken” is necessarily based on hearsay. The evidentiary issue they raise requires a close analysis of the basis of the hearsay rule.

In People v. Carpenter (1963), 28 Ill.2d 116, 121, 190 N.E.2d 738, our Supreme Court adopted the traditional definition of hearsay evidence:

‘“Hearsay evidence is testimony in court or written evidence, of a statement made out of court, such statement being offered as an assertion to show the truth of matters asserted therein, and thus resting for its value upon the credibility of the out-of-court asserter.’ (McCormick, Law of Evidence, sec. 225; see also, Cleary, Handbook of Illinois Evidence, sec. 31.1 et seq.)”

It is fundamental that extra-judicial statements become hearsay only when they are “assertions” and only when they are offered for the purpose of proving the truth of the matter asserted. It is impossible to determine from the record whether the telephone messages conveyed to Officer Martin were in fact “assertions.” There is only the unchallenged conclusion that “bets were received,” a distillation of four separate conversations. It is less difficult to perceive the purpose for which this testimony was offered. The conclusion that “bets were received” was offered to show the manner in which this telephone was used; that it was used for gambling purposes. Nowhere in the record is there an attempt to prove the veracity of the callers’ statements.

The hearsay rule exists in recognition of the value of unhampered cross-examination as a truth seeking device. (Wigmore on Evidence, 3rd ed., sec. 1362; People v. Carpenter, supra, at 121.) The source of the only assertion presented by the record, Officer Martin, was present in comt, testified under oath as to what he heard and was subject to cross-examination with reference thereto. We do not believe that defendants were in any manner hindered in their cross-examination by their inability to confront the callers regarding the substance of the telephone conversations. A contrary conclusion would be warranted only if the testimony had related a caller’s assertion that 219 West 23rd Street was used for gambling purposes.

We hold that the testimony by a police officer that bets were received by him by means of a telephone upon defendants’ premises was not hearsay evidence and consequently was unaffected by the stipulation of counsel. Our position finds considerable support in other jurisdictions as well as in the Seventh Circuit Court of Appeals. United States v. Pasha (7th Cir. 1964), 332 F.2d 193; People v. King (1956), 140 Cal. App.2d 1, 294 P.2d 972; Commonwealth v. Tselepis (1962), 198 Pa. Super. 449, 181 A.2d 710; State v. Masco (1968), 103 N.J. Super. 277, 247 A.2d 136; State v. Masse (1968), 5 Conn. Cir. 557, 258 A.2d 316; Liberto v. State (1970), 248 Ark. 350, 451 S.W.2d 464; Annot. (1950), 13 A.L.R.2d 1411.

In a bench trial in a criminal case, the determination of the credibility of the witnesses and the weight to be given their testimony is committed to the trial judge. We should not disturb his findings unless the proof is so unsatisfactory, improbable or implausible as to justify a reasonable doubt as to the defendants’ guilt. People v. Guyton (1969), 114 Ill.App.2d 394, 252 N.E.2d 665; People v. Smith (1964), 50 Ill.App.2d 361, 200 N.E.2d 748. Based on the uncontradicted testimony of Officer Martin regarding the water-soluble paper slips and the phoned bets, the court below concluded that the basement in which defendants were arrested was used for the purpose of gambling. The evidence was not so ■unsatisfactory, improbable or implausible as to warrant disturbing that finding.

Defendants’ final argument stems from the following statement by the trial judge, spoken during colloquy with counsel:

“I am aware of the fact a gambler never rents or leases the property in his own name. He leases it in somebody else’s name or has somebody else lease it for him.”

Defendants contend that this conclusion "was crucial to the Court’s finding of occupancy or control of the premises,” and that the trial judge ‘based his judgment, at least in substantial part, on it.” Despite defendants’ insistence, we find nothing to justify acceptance of their assumption that the trial judge relied on matters outside the record in reaching his decision. His only allusion to the reason for his finding was unrevealing:

“THE COURT: I think it has been established that it is a gambling place, and I think it has been established defendants had sufficient control over the property, over the place, that they were keepers.”

Furthermore, the record contains other competent evidence bearing on the issue of “control.” As previously noted, the testimony presented was adequate to sustain the trial judge’s holding regarding this element. We affirm the judgment.

Judgment affirmed.

LEIGHTON, P. J., and SCHWARTZ, J., concur.

       Ill. Rev. Stat. 1969, ch. 38, par. 28 — 3
      This statute provides, in part: “* * * Any person who knowingly permits any premises or property owned or occupied by him or under his control to be used as a gambling place shall be fined not to exceed $500 * *


author: Mr. JUSTICE SCHWARTZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Clyde Atkins, Defendant-Appellant.
    (No. 55083;
    First District
    — November 9, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Robert L. Best, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE SCHWARTZ

delivered the opinion of the court:

In a non-jury trial defendant was found guilty of aggravated battery and sentenced by the court to a term of five years probation, the first six months thereof to be served in the County Jail. On appeal defendant contends that the evidence established that he acted in self-defense and that in any event the State failed to prove his guilt beyond a reasonable doubt. The facts follow.

At approximately 2:10 P.M. on November 19, 1968, the defendant was involved in an automobile accident at the intersection of 64th Street and Stewart Avenue in the City of Chicago. The two vehicles involved in the collision were a 1961 Ford Thunderbird driven by defendant and a 1961 Chevrolet driven by one Theodore McGowan. McGowan’s car struck the driver’s side of defendant’s car as defendant was proceeding southbound on Stewart Avenue through the intersection. After the accident both drivers stepped out of their cars and defendant walked toward McGowan. The events which followed are set forth in the testimony of the participants and of the two eyewitnesses.

McGowan testified that after some conversation he announced that he was going to notify the police and that the defendant thereupon struck him with his hands. He stated that as he turned, the defendant proceeded to strike him with his fists and lacked his head causing him to lose consciousness.

James Lewis testified that he observed the fight from a few feet away, that as McGowan prepared either to turn away or reach for his pocket, the defendant knocked McGowan to the ground with a single blow and continued to hit and kick him as he lay in the street. Lewis ran into a nearby school building and telephoned the police. Upon his return to the scene he observed the defendant continuing to hit and kick McGowan.

Police Officer Augustine testified that he happened upon the scene while on a routine patrol in the area. He observed a group of people gathered around one man beating another. He testified that he saw the defendant hit McGowan with his fist and kick him two or three times. He commanded defendant to stop and the defendant stepped back. McGowan lay on the pavement apparently unconscious.

Defendant testified that McGowan informed him that he had insurance but that he was not going to report the accident. Then, according to defendant, McGowan said, “I can handle it,” and reached for his front pocket. Defendant testified that he then hit McGowan three times while he was standing and once after he fell to the pavement.

Defendant contends that the evidence proves that he acted in self-defense. The applicable statute provides:

“A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force.” (Emphasis provided.) Ill. Rev. Stat. 1969, ch. 38, par. 7-1

The evidence in the instant case reveals that the defendant initially struck McGowan as the latter either reached for his pocket or moved as if to turn away. Even if we were to assume however that the defendant reasonably believed McGowan was reaching for a weapon, the beating the defendant administered to McGowan far exceeded that necessary to defend against the threat presented. The testimony of the bystander Lewis and of Officer Augustine reveals that the defendant kicked McGowan repeatedly as he lay in the street no longer posing a threat to defendant’s safety. Defendant’s conduct was far beyond that which was necessary to defend himself and the beating he gave McGowan reveals such abnormal cruelty as to warrant the imposition of the judgment.

Judgment affirmed.

LEIGHTON, P. J., and LORENZ, J., concur.


author: Mr. PRESIDING JUSTICE McNAMARA

text:
    W. Douglas Foster, Plaintiff-Appellee, v. George J. Cyrus & Company, Inc., Defendant-Appellant.
    (No. 53442;
    First District
    — November 11, 1971.

      Rehearing denied December 16, 1971.

      Kralovec, Sweeney, Marquard & Scoby, of Chicago, (George E. Sweeney, and Edward V. Scoby, of counsel,) for appellant.
    John D. Hayes and Louis Hilfman, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

This action was brought to recover damages for personal injuries sustained by plaintiff in a fall on defendant’s premises. The jury returned a verdict for $10,000; the court entered judgment on the verdict and denied post-trial motions. On appeal defendant contends that the evidence was insufficient to support the verdict, that plaintiff was contributorily negligent as a matter of law, and that the trial court erred in the giving of a certain instruction to the jury.

On January 28, 1966, plaintiff fell on a mound of snow and ice in a parking lot owned by defendant. At the time of the accident, the temperature was 10 degrees below zero, and there was about 12 inches of snow on the ground. From January 12 through the day of the accident, the temperature had not risen above the freezing mark.

The parking lot was located in the rear of a building owned by defendant. Plaintiff, who lived in a nearby building, rented parking space from defendant. Plaintiff was employed as a salesman for an emergency respirator service. On the morning of the accident, plaintiff went to his car in the lot in order to deliver certain respiratory equipment. He called his employer for assistance, when he was unable to start the car. The employer sent another salesman, Ronald Blight, to help him. After trying unsuccessfully to start plaintiff’s car, the two men decided to transfer the equipment to Blight’s car. Plaintiff testified that he reached in the window of his station wagon and pulled the respirator toward the door. While turning away from the rear window, he slipped and fell on the mound of snow, sustaining a fractured hip.

The mound of snow in question extended along the rear of plaintiff’s car. It was a foot high and about 4 to 5 feet in width. The mound was packed tightly with snow and ice, while the snow between the automobiles was light and fluffy. Plaintiff had noticed the mound of snow when he parked his car on the previous evening.

Plaintiff testified that the parking lot had been “plowed” up against the back of his automobile where he fell. He also testified that the plowing caused the mound of ice and snow. He could not say for sure that he had seen anyone plowing the lot before the accident. Blight testified that there was a mound of snow behind plaintiffs car, and that the mound had been “pushed up.” Plaintiff’s wife testified that an accumulation of snow was pushed up in the back of the car and it appeared that “it had been either plowed up or something.” Gabriel Braun, a tenant in defendant’s building, testified for plaintiff that the area appeared to have been plowed prior to the injury to plaintiff, and that the lot had been plowed by a tractor after every snowfall. On cross-examination, Mrs. Braun stated that she did not recall what plowing occurred in the lot prior to a 1967 snowstorm, a year after the instant accident. On redirect examination, she testified that the lot was plowed after every snowfall since she lived there. Kenneth Pugh, defendant’s janitor, testified as an adverse witness that the parking lot was never snow plowed. However he admitted making a statement prior to trial that if snow accumulated, the tenants would call defendant’s agent who would have the snow cleared. Pugh also admitted that at his deposition he had stated that during 1966, the scavenger service making weekly garbage collections would plow the lot if there were snow accumulations.

Edward Heintz, defendant’s property manager, testified for the defense that Active Service Corporation was used by defendant when snow removal was necessary. The only time Active was so engaged occurred in 1967. He produced records for the property indicating that no payments had been made to anyone for snow removal from the lot in 1966. Richard DeBoer, Active’s president, testified for the defense that his company hauled ashes for the building, but did not do any snow plowing in 1966. He testified that if snow removal had been done, it would have shown on Active’s records.

Defendant first contends that the evidence presented by plaintiff was insufficient to support the verdict. A property owner is not liable for injuries resulting from natural accumulations of snow and ice. (Zide v. Jewel Tea Co., 39 Ill.App.2d 217, 188 N.E.2d 383.) However a property owner may be liable for injuries sustained as a result of snow and ice which did not accumulate from natural causes, but as the result of the owner doing something which causes an unnatural or artificial accumulation of ice and snow (Fitzsimons v. National Tea Co., 29 Ill.App.2d 306, 173 N.E.2d 534.) Plaintiff offered testimony that he fell on a mound of snow and ice which was caused by the clearing of snow in the travelled portion of the lot. Defendant does not dispute the existence of the mound of snow, but argues that the testimony failed to support a finding that the parking lot had been cleared of snow prior to the accident. It thus maintains that the trial court erred in not directing a verdict in its favor and in denying its motion for judgment notwithstanding the verdict.

In Illinois, verdicts should be directed or judgment notwithstanding the verdict should be granted only if “all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” (Pedrick v. Peoria and Eastern R.R. Co., 37 Ill.2d 494, 229 N.E.2d 504.) Applying that principle to the instant situation, we believe that the issue of whether the lot had been cleared of snow was factual and properly submitted to the jury. While plaintiff was not sure that he saw anyone plowing the lot prior to the accident, he testified that the lot had been plowed. He further stated that the snow was plowed up in a mound where he fell. Both Blight and plaintiffs wife testified that the snow had been pushed up, and she stated that the lot seemed to have been plowed. Mrs. Braun testified that the lot was cleared of snow after every snowfall. Additionally, the testimony of defendant’s janitor was impeached by his earlier statement and testimony that the lot was cleared of snow on a regular basis. Although defendant offered evidence that it cleared no snow in the lot during 1966, we believe that the issue was properly presented to the jury. When the evidence on the issue is viewed in a light most favorable to plaintiff, we are unable to say that the jury’s finding cannot stand.

Similarly, the issue of plaintiff’s contributory negligence was to be determined by tire jury. Plaintiff was aware of the dangerous condition of the snow and ice at the rear of his car. Yet it was necessary for him to transfer the equipment from the car. Whether he was acting with due care for his own safety at the time of his fall was properly resolved by the triers of fact.

Defendant further argues that the trial court committed reversible error in the giving of the following instruction concerning defendant’s duty to plaintiff:

“The defendant owed the plaintiff the duty to exercise ordinary care to keep the parking area in a reasonably safe condition for the purpose for which the parking area was reasonably intended, and to exercise ordinary care not to create or permit an unsafe condition which would interfere with the reasonably expected use of the parking area; however, the defendant was under no duty to remove natural accumulations of snow and ice unless such accumulations constituted an unsafe condition and then only until a reasonable time had elapsed following such unnatural accumulations.”

We address ourselves first to plaintiffs threshold argument that a consideration of the propriety of the instruction by this court is unnecessary. Plaintiff argues that even if the instruction incorrectly states the law, its giving was not prejudicial to defendant and does not require reversal. This argument is apparently based upon the fact that the presence of the mound of snow at the rear of plaintiff’s vehicle was not disputed by defendant. We agree that the snow mound’s presence was undisputed. However, whether it was the result of a natural or artificial accumulation was very much controverted at trial. The primary issue for the triers of fact as framed by both sides was whether defendant caused the mound by clearing snow from the lot prior to the accident. Under the instruction given, the jury could have found that the mound of snow was a natural accumulation, but nevertheless held defendant liable for not removing the snow within a reasonable time. If the latter part of the instruction in question was not a correct statement of the law in Illinois, its submission to the jury constituted prejudicial error.

We hold that the duty owed by defendant to plaintiff was properly set forth in the following instruction tendered by defendant and refused by the court:

“The owner of property is under a duty to exercise ordinary care not to create an unsafe condition with the customary and regular use of the property, but he is under no duty to remove ice or snow which have resulted from natural accumulations.” In Cronin v. Brownlie, 348 Ill.App. 448, 109 N.E.2d 352, a tenant was

injured in a fall on an ice covered sidewalk adjoining a building owned by defendant. This court held that in our northern climate it would be unreasonable and impractical to require a landlord to remove snow and ice from sidewalks used jointly by his tenants where the ice and snow arise from natural causes. And in Zide v. Jewel Tea Co., 39 Ill.App.2d 217, 188 N.E.2d 383, a plaintiff fell on ice and snow accumulated in defendant’s parking lot. In holding that plaintiff failed to offer sufficient evidence to recover, this court stated at p. 225:

“It was essential to the plaintiff’s cause of action that some evidence be introduced to show that her fall resulted from other than the presence of snow and ice accumulated as a result of natural causes.”

In Byrne v. Catholic Bishop of Chicago, 266 N.E.2d 708, plaintiff was injured in a fall on an accumulation of ice and snow in a parking lot. The court held that there must be an affirmative showing by plaintiff of an unnatural accumulation of snow or an aggravation of a natural condition by the owner of the property before the latter would be liable for injury sustained. See also Riccitelli v. Sternfeld, 1 Ill.2d 133, 115 N.E.2d 288; Kelly v. Huyvaert, 323 Ill.App. 643, 56 N.E.2d 638.

In holding that the instruction given was improper, we reject dicta expressed by this court in Durkin v. Lewitz, 3 Ill.App.2d 481, 123 N.E.2d 151. In that case, the evidence established that the plaintiff tenant fell on an accumulation of ice caused by a defective roof gutter on the defendant landlord’s premises. This evidence established an artificial accumulation of ice for which the property owner clearly was liable for injuries sustained by his tenant. However, the court went on to discuss the so-called “Massachusetts” and “Connecticut” rules concerning the duties of property owners to tenants in such cases. The court concluded that it would favor the Connecticut rule requiring property owners to remove even natural accumulations of snow and ice after a reasonable length of time or be liable for injuries suffered by their tenants. As already noted, we believe that placing such a burden on landlords in our climate would be unreasonable and virtually impossible to fulfill.

Sims v. Block, 94 Ill.App.2d 215, 236 N.E.2d 572, also cited by plaintiff, is clearly distinguishable from the case at bar. There plaintiff was injured while afighting from his vehicle in his landlord’s parking lot. The evidence indicated that there had been an incomplete snow removal by defendant’s agent creating an artificial accumulation of snow and ice.

We hold that instruction in question incorrectly stated the IHinois law. Giving it to the jury constituted prejudicial error to defendant. Accordingly, the judgment of the circuit court is reversed and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

DEMPSEY and McGLOON, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Chester E. Dixon, Defendant-Appellant.
    (No. 54944;
    First District
    — November 11, 1971.

      John J. Corbett, Jr., of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Terry Gordon, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendant was charged with two counts of theft by deception. At arraignment, he entered a plea of not guilty. When the cause came on for trial, defendant, represented by private counsel, withdrew his plea of not guilty and entered a plea of guilty. The evidence was stipulated, and defendant was sentenced under a general verdict to a term of five to seven years.

On appeal, defendant initially claims that the judgment of conviction imposed on count two of the indictment cannot stand. The State concedes that the second count is defective in that the element of intent is not included. The omission of the element of intent is a substantive error which is not waived by a plea of guilty. (People v. Edge (1950), 406 Ill. 490, 94 N.E.2d 359.) However the State correctly points out that the conviction can stand since “a general verdict of guilty is presumed to be based on any good count in the indictment to which the proof is applicable.” (People v. Lymore (1962), 25 Ill.2d 305, 185 N.E.2d 158, cert, denied, 372 U.S. 947.) Since the judgment of conviction and the sentence imposed are proper under the first count, the determination of the trial court can stand.

Defendant additionally contends that he was not properly admonished by the trial court as to his plea of guilty; that the hearing in aggravation and mitigation was improperly conducted; and that his counsel was incompetent. The pertinent facts, as stipulated, are as follows.

Defendant, a real estate broker, entered into negotiations with LeRoy Anderson for the purchase of a certain parcel of real estate. Anderson gave defendant a check for $1009 as earnest money which was to be returned if the owner of the property refused to sell. It was also stipulated that, at the time defendant took the check, he did not intend to commence negotiations in Anderson’s behalf, and that he intended to permanently deprive Anderson of the use and benefit of the money. The owner refused to sell the property, but only after indictment did defendant return $500 of the original $1000 to Anderson. Defendant entered into the same type of transaction with Pearlie Spells, but returned none of the $1500 earnest money to her.

At the hearing in aggravation and mitigation, the two above named witnesses, along with three other victims, testified under oath about their dealings with defendant. When the fifth witness had completed testimony, the prosecutor informed the court that many more persons were present in the courtroom whom he wished to call in further aggravation. The judge stated that he had ‘heard enough.” However, he permitted fifty-three persons to stand, state their names and the amounts of money involved in their dealings with defendant. The defense made no objection to this procedure. Several witnesses were called by the defense in mitigation to testify to the good moral character and reputation of defendant. Defendant also testified, and stated that he could refute only half of the evidence presented by the State.

Defendant first argues that the trial court’s admonishment as to the consequences of his guilty plea was insufficient in that the court neither advised him as to the possibility of consecutive sentences, nor that, implicit in his plea, was a waiver of his right to confront the witnesses against him.

Prior to accepting a plea of guilty, the trial court is required to advise a defendant of the consequences of his plea and the maximum penalty to which he may be sentenced. In the present case, the court informed defendant that he could be sentenced to one to ten years in the penitentiary. Defendant maintains that the admonishment was inadequate since the judge did not mention that he could be sentenced on each count and thus possibly receive a total sentence of twenty years.

In People v. Bratu (1970), 121 Ill.App.2d 439, 257 N.E.2d 607, defendant pleaded guilty to two counts of unlawful sale of drugs. In admonishing defendant after the plea, the trial judge informed him that he could be sentenced to “any number of years not less than ten years.” The court subsequently sentenced defendant to ten years to ten years and a day, the minimum sentence possible under the statute. In finding the admonishment adequate, this court pointed out that defendant could show no prejudice from the court’s failure to advise him that he could have been sentenced to consecutive terms of ten years. In the case at bar, defendant was sentenced under a general verdict to a sentence of five to seven years. As in Bratu, defendant can demonstrate no prejudice by the failure of the court to mention the possibility of consecutive sentences in its admonishment.

Relying on Boykin v. Alabama (1969), 395 U.S. 238, defendant further argues that the admonishment was inadequate because it failed to inform him that the right to confront the witnesses against him was waived by his plea of guilty. The holding in Boykin, however, merely states that the court cannot presume a valid waiver of the privilege against self-incrimination, the right to trial by jury and the right to confront one’s accuser from a silent record. Here, the record is not silent. The court, in addition to advising defendant of the penalty, advised defendant that his plea of guilty waived his right to trial by jury and that there would be no trial.

The determination of the voluntary and knowing nature of a guilty plea must include an examination of all the circumstances surrounding the plea. In the instant case, defendant was apprised of the possible penalty, advised that his plea of guilty waived his right to a jury trial and also that there would be no trial. Defendant was properly advised of his rights, and his response to the court’s admonitions reflects that he understood clearly the nature of his plea of guilty. Defendant was a college graduate and also claimed some knowledge of the law. Under aU the circumstances, we find that defendant’s plea of guilty was knowingly and voluntarily made.

We note that above issue could no longer arise because of Supreme Court Rule 402, which was revised and became effective after the instant plea of guilty. The rule now requires the trial court in its admonishment to a defendant after a guilty plea, among the other warnings, to specifically mention the possibility of consecutive sentences and to warn defendant that his plea waives his right to confront witnesses against him.

Defendant next urges that the hearing in aggravation and mitigation was improperly conducted. At the hearing, fifty-three unsworn persons identified themselves and informed the court of the amounts of money involved in their dealings with defendant. Defendant argues that the use of this information in aggravation was error.

Defendant failed to object to this procedure in the trial court. He has therefore waived his right to assert any prejudice on appeal. Moreover, when defendant took tire stand, he stated that he could refute only half of the statements concerning these transactions. By admitting the validity of that part of the testimony, defendant waived any right to assert error concerning the procedure. (See People v. Daugherty (1969), 106 Ill.App.2d 250, 245 N.E.2d 7.) Additionally, defendant was not prejudiced by the statements of the fifty-three spectator-witnesses. Before any of the fifty-three persons identified themselves, the judge stated that he had heard enough in aggravation. The sentence imposed does not indicate that the court was influenced by the additional statements. Rather, the record shows that the persons were permitted to identify themselves for the record as a courtesy for their court attendance.

Defendant’s final argument is that his privately retained trial counsel was incompetent. Where a defendant was represented by the counsel of his choice, a conviction will not be reversed for inadequate representation unless it can be shown from the record that the representation was of such low caliber as to amount to no representation at all, or that it was such as to reduce the trial to a farce. (People v. Strader (1961), 23 Ill.2d 13, 177 N.E.2d 126.) It must be shown that defendant was substantially prejudiced by the alleged errors of counsel. People v. Ashley (1966), 34 Ill.2d 402, 216 N.E.2d 126.

This contention of incompetency is based upon trial counsel’s failure to move to quash the second count of the indictment and his failure to object to the statements made by the fifty-three spectator-witnesses. As we have noted, defendant was not prejudiced by failure of counsel to move to quash the defective count. Defendant pleaded guilty and was properly sentenced under the valid count of the indictment. If counsel had moved to quash the defective count, the State immediately would have sought to amend the charge. Similarly, defendant can show no prejudice by virtue of the brief statements of the fifty-three witnesses. The record indicates that the trial judge was not influenced by those additional comments.

In view of the State’s evidence and defendant’s own admission of guilt, we believe that counsel’s conduct was in defendant’s best interests. If any of his decisions were incorrect, they could be characterized only as errors in judgment. Such errors in judgment do not constitute incompetency. (People v. Washington (1968), 41 Ill.2d 16, 241 N.E.2d 425.) Neither incompetency on the part of counsel nor prejudice to defendant have been demonstrated in this case.

Accordingly, the judgment of the circuit court is affirmed.

Judgment affirmed.

DEMPSEY and McGLOON, JJ., concur.


author: Mr. JUSTICE McGLOON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Linda Henderson, (Impleaded), Defendant-Appellant.
    (No. 54994;
    First District
    — November 11, 1971.

      Gerald W. Getty, Public Defender, of Chicago, (Herbert Becker, Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and Henry A. Hauser, Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

Defendant, Linda Henderson, was found guilty of attempted robbery by a circuit court judge sitting without a jury. The judge sentenced her to from one to three years in Dwight Womens Reformatory, but upon subsequently learning that she was 17 years of age rather than 18 as she alleged at trial, the judge entered a nunc pro tunc order correcting mittimus to “The Illinois Youth Commission.” On appeal defendant argues that the Criminal Division of the circuit court had no jurisdiction to hear the charge against defendant, that the charge should have been brought before the Juvenile Court, and that, therefore, her conviction should be reversed.

We affirm.

Because no issue of evidence is involved in this appeal, we need not recite the facts upon which the charge of attempted robbery was predicated. Suffice it to say that the circuit court found them adequately proved to establish defendant’s guilt beyond a reasonable doubt.

At trial defendant testified that she was 18 years of age. She was found guilty as charged and sentenced by the Court on December 11, 1969. On February 8, 1970, defendant’s mother filed a Petition to Correct Mittimus alleging that at the time of trial and sentencing defendant was only 17 years old, and praying for an order nunc pro tunc correcting the mittimus to change the place of confinement to the Illinois Youth Commission rather than the “Illinois Reformatory for Women at Dwight, Illinois.” That same day the Court allowed the petition, and ordered defendant committed to the custody of the Juvenile Division of the Department of Corrections.

The defendant would have this court find that not only was the circuit court without jurisdiction to sentence defendant to the Youth Commission after learning her true age, but further, that it was without jurisdiction to try the case initially in spite of defendant’s voluntary misrepresentation of her age. Defendant maintains that this follows as a consequence of the Juvenile Court Act, Ill. Rev. Stat. 1969, ch. 37, par. 702 — 7(1) which reads as follows:

Criminal Prosecutions Limited: (1) Except as provided in this section no boy who was under 17 years of age or girl who was under 18 years of age at the time of the alleged offense may be prosecuted under the criminal laws of this state or for violation of an ordinance of any political subdivision thereof.

We find that the circuit court was with jurisdiction to try this matter. Article VI, Sec. 9 of the Illinois Constitution of 1870 provides that the circuit court is to have unlimited original jurisdiction of all justiciable matters, and such powers of review of administrative action as may be provided by law. The only limitation placed on the jurisdiction of the circuit court under the Constitution of 1970 (Article VI, Sec. 9) is in those matters where the Supreme Court has original and exclusive jurisdiction relating to the redistricting of the General Assembly and to the ability of the Governor to serve or resume office.

To be subject to prosecution for criminal offenses in Illinois, the party must commit an offense wholly or in part within the state, and furthermore, the accused must have been at least 13 years of age at the time the offense is alleged to have been committed. Ill. Rev. Stat. 1969, ch. 38, pars. 1 — 5, 6 — 1.

Thus, the Criminal Division of the circuit court and the Juvenile Court, a division of the circuit court of Cook County, share authority over those persons who at the time of the alleged offense are at least 13 years of age, but under 17 years of age for males or 18 years of age for females. The division of the court before which this class of persons is tried depends upon a decision made by either the person charged, the State’s Attorney or the Chief Judge of the circuit cotut after a petition alleging delinquency is filed pursuant to Ill. Rev. Stat. 1969, ch. 37, par. 704 — 1. Thus, the statute provides that:

If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this state, the State’s Attorney shall determine the court in which that minor is to be prosecuted; however, if the Juvenile Court Judge objects to the removal of a case from the jurisdiction of the Juvenile Court, the matter shall be referred to the Chief Judge of the circuit for decision and disposition * * * (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 7(3).) If a petition alleges commission by a minor 13 years of age or over of an act which constitutes a crime under the laws of this state, the minor, with the consent of his counsel, may, at any time before commencement of the adjudication hearing, file with the court a motion that criminal prosecution be ordered and that the petition be dismissed insofar as the act or acts involved in the criminal proceedings are concerned. If such a motion is filed as herein provided, the court shall enter its order accordingly. (Ill. Rev. Stat. 1969, ch. 37, par. 702 — 7(5).)

In the case before us, the defendant willfully misrepresented her age to the police, the State and the trial court. Because of defendant’s obfuscation, the Juvenile Court never had notice of defendant’s juvenile status, for no delinquency petition was ever filed with that court. Defendant should not be allowed to take her chances in the Criminal Division, and upon an adverse outcome, demand reversal and a new trial in the Juvenile Court. State v. Peterson (Cinn. Ohio Mun. Ct., 1966), 223 N.E.2d 838; State v. Superior Court of Pina County (Ariz. Ct. App., 1968), 436 P.2d 948.

In the case of People v. Washington (1966), 81 Ill.App.2d 90, 225 N.E.2d 472, defendant argued that his age (17 years) was not properly established at trial. This court refused to reverse stating that the jury did not make a finding as to defendant’s age, nor did defendant place his age in issue. We, therefore, concluded that there was no error in failing to establish defendant’s age at trial. In the case before us, defendant herself established by testimony that she was 18 years of age. Her age was never contested at trial, and the Court did not err in accepting the testimony.

In conclusion, the actions of the defendant prevented her from utilizing the procedural amenities of the Juvenile Court. The circuit court had jurisdiction to consider her case, and the remedy afforded her by the Petition to Correct Mittimus was adequate.

Judgment affirmed.

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


author: Mr. JUSTICE LORENZ

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Strompolis, Defendant-Appellant.
    (No. 54901;
    First District
    — November 12, 1971.

      Edward T. Stein, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle, and George Pappas, Assistant States Attorneys, of counsel,) for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court on rehearing:

After a bench trial defendant was found guilty of the offense of unlawful use of weapons. He was placed on probation for one year, the first six months of which were to be spent in the House of Correction. On appeal defendant contends:

(1) that his conduct was exempt from prosecution;

(2) that he was not properly informed, nor did he understandingly waive his right to a trial by jury; and

(3) that he was deprived of his right to effective counsel.

Police Officer Farrar, the sole witness for the State, testified on direct examination, that he recovered a sawed-off shotgun from the inside panel of the door on the driver’s side of a car which was in the parking lot of a police station. On cross-examination the witness testified that the weapon fell out of the door panel as defendant opened the door to get out of the car. The door panel had been unscrewed to allow its removal. At the time of recovery the weapon, though unloaded, was fully assembled and in a case.

Defendant, the only defense witness, testified that his sister asked him to dispose of the weapon. He took the gun, with the bolt removed, to a police station where he intended to surrender it to a friend of his who was a police officer. Near the police station parking lot he approached some police officers in an attempt to determine the whereabouts of his friend. On being informed that his friend was not on duty, defendant told the officers that he had a gun which he wished to dispose of. After parking his car, as instructed by the officers, he turned the gun over to them. Defendant was then ordered into the police station.

Opinion

(1) Defendant concedes that the testimony of the State’s witness shows that the weapon was concealed in a motor vehicle within the meaning of Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1(a) (4). He contends, however, that this did not constitute a violation since the weapon was not immediately accessible and therefore within the exception created by statute. We cannot agree with defendant in this regard. Before the weapon fell to the ground it was housed behind the inside left front door panel of the vehicle driven by defendant. The weapon was therefore only inches from defendant’s left hand. The screws which held the panel in place had been removed thereby enabling defendant to easily gain access to the weapon. Defendant contends the door had to be opened before the weapon could be removed. That contention however is not supported by the record. The fact that the weapon fell out when the door was opened does not mean that the weapon could not be removed with the door closed. Even if the door had to be opened and defendant had to reach down to the base of the door to remove the weapon such movement on defendant’s part is not materially different than that found in People v. McKnight (1968), 39 Ill.2d 577, cert. den. 394 U.S. 993 where defendant had to reach beneath the seat to obtain a pistol.

Defendant also contends that the fact that the weapon was found in a case rendered it “not immediately accessible” and therefor within the exceptions to the statute as set out in footnote 2. This contention is without merit in light of the little effort required to open a gun case. (See People v. Foster (1961), 32 Ill.App.2d 462.) The fact that the weapon was found unloaded is also of no moment. The carrying of certain firearms is prohibited by the statute without regard to the question of whether or not the firearm is loaded. The firearm is not on that account to be considered “broken down in non-functioning state.”

Defendant testified that the bolt was removed from the gun. If this testimony was believed by the trier of facts defendant would not have been convicted because the weapon would have been “broken down in a non-functioning state” and therefor within the exception set out in footnote 2. The trier of fact chose, however, not to believe the testimony of defendant but to believe the police officer’s testimony that the weapon was fully assembled. The function of determining the credibility of witnesses and the weight to be accorded their testimony is assigned to the trial court and this court will not substitute its judgment when the evidence is merely conflicting. (People v. Scott (1966), 34 Ill.2d 41, 45.) We, therefore, hold that defendant’s conduct did not come within the exception set out in footnote 2, and the evidence was sufficient to support defendant’s conviction.

(2) Defendant next urges that the trial judge erred in failing to inform defendant of his right to trial by jury and also in failing to ascertain whether defendant’s waiver of a jury trial was understandingly made. His contention arises out of the foUowing coUoquy:

“The Clerk: James Strompolis.

Mr. Kabavidas [Assistant State’s Attorney]: State is ready to go to trial.

The Court: May I see the file?

Mr. Public Defender. We’ll pass it. Let me know when you’re ready.

(Whereupon, the case was passed and recaUed.)

The Clerk: James Strompolis.

Mr. Drda [Assistant Public Defender]: The plea will be not guilty.

Waive a jury.

(Whereupon, all parties were sworn.)

Mr. Drda: Your Honor, if the state is going to attempt to amend the complaint — I base my defense on the complaint as charged.

Mr. Kabavidas: He’s going — were going to add another charge. Do you want me to amend this one? What would you like me to do?

Mr. Drda: Add another one. I would stiU ask for a continuance or at least pass it. I haven’t had time to talk to the defendant on this additional charge.

The Court: State might ask for a high bond on the second charge.

Mr. Drda: That’s up to the Court’s discretion.

The Court: What is the original charge? Unlawful use? Failure to register.

Mb. Kabavidas: The charge is unlawful possession of a firearm, judge.

Under 38, 24 — 3.14.

The Court: What’s the additional charge?

Mr. Kabavidas: We’re going to add a charge of 24 — la4, carrying concealed in a motor vehicle.

Mr. Drda: AU right, your Honor.

Mr. Kabavidas: Here is a copy of the complaint of charges against you.

Mr. Dbda: It’s not properly described or sworn to. Not properly sworn to at this time.

The Court: Not properly sworn to.

Mr. Dbda: Yes, your Honor. The complaint has to be properly described and sworn to.

(Whereupon the complainant was sworn to the complaint.)

Mr. Kabavidas: Now, we’re ready.

Mb. Dbda: We’re ready.

Mb. Kabavidas: Ready for trial.

The Court: Leave to file has been granted.

Mb. Kabavidas: Okay.

Mb. Dbda: Two charges?

Mb. Kabavidas: Yes. Okay. Now, were going to nolle the one charge.

Nolle the original charge. Proceed on this charge.

Mb. Dbda: On the U.U.W?

Mb. Kabavidas: Yes.

The Clerk: Sheet 1 line 30, nolle.

Mr. Kabavidas: Have the parties been sworn in?

The Clerk: They have been sworn in.

Mb. Kabavidas: What’s the plea to the charge?

Mr. Dbda: The plea is not guilty, your Honor.

Mb. Kabavidas: Wish to be tried by this Court?-

Mr. Dbda: Waive the jury.

Mb. Kabavidas: Mr. Strompolis?

The Defendant: This man is representing me.

Mr. Kabavidas: Okay.”

The record discloses that the original complaint charged defendant with being a narcotic addict having unlawful possession of a firearm in violation of Ill. Rev. Stat. 1969, ch. 38, par. 24 — 3.1(a) (4). The public defender was handed the file on the case immediately before the trial was to begin. To allow the public defender to familiarize himself with the matter he was shortly to try, the case was temporarily passed. After the case was recalled the public defender entered a plea of not guilty and waived a jury trial. He was then informed that the State was going to amend its original complaint, adding the charge of carrying a concealed weapon in a vehicle. Although the public defender requested a continuance to enable him to confer with defendant on the additional charge, he did not persist in that request after the court pointed out the possible consequences. The public defender, after seeing to it that the complaint was properly sworn, said that he was ready for trial. The court then granted leave to file the amended complaint whereupon a nolle prosequi was entered with respect to the original charge. Then, on behalf of defendant, the public defender entered a plea of not guilty and waived a jury trial. Defendant, upon inquiry of the prosecutor, expressly ratified the actions of his attorney.

In reply to defendant’s contention the State relies heavily on People v. Sailor (1969), 43 Ill.2d 256. Sailor held that a defendant is bound by his attorneys actions when the attorney, in the presence of and without objection by defendant, waives defendant’s right to a jury trial. That decision has, however, been distinguished by People v. Baker (1969), 126 Ill.App.2d 1, 6 to apply only to those situations where a defendant has an opportunity for meaningful consultation with his attorney. Although the Baker rationale warrants our careful consideration it is distinguishable under the facts of the instant case. Here the pubhc defender had an opportunity to review the matter he was shortly to try while the case was temporarUy passed. Then, after the case was caUed again, the State added a new charge and entered a nolle prosequi to the original charge. Although pubhc defender had no opportunity for anything but hurried consultation with defendant prior to the arraignment and jury waiver on the new charge, he had ample opportunity to consult with defendant when the case was originaUy passed, and at that time was undoubtedly told defendant’s version of the facts leading up to his arrest. In many situations consultation between attorney and client on one charge could not be adequate when trial is had another charge, but here, where the charges are of such a similar character, the earlier discussion constituted a sufficiently intelligent basis upon which defendant’s right to a jury trial could be waived. This conclusion is substantiated by defendant’s comment “This man is representing me” made immediately after the public defender waived a jury trial on the second charge. We, therefore, find no basis for defendant’s contention that he did not knowingly and understandingly waive his right to a jury trial.

In defendant’s last contention he urges reversal of his conviction on the grounds that his appointed counsel was incompetent. The basis of that contention lies in purported errors made by counsel during the trial of his case, the first of which being defense counsel’s failure to move to suppress the shotgun at the close of the State’s case.

Officer Farrar testified on direct examination that he recovered a shotgun from the inside panel of the door of a car defendant was driving. The prosecutor then tendered the witness to defense counsel for cross-examination. Defendant contends that at this point a motion to suppress the shotgun should have been made and would have been successful. With the shotgun suppressed a motion for a directed verdict would have brought about defendant’s acquittal. We do not agree with defendant’s theory.

Although a motion to suppress may be made during thé course of trial, (Ill. Rev. Stat. 1969, ch. 38, par. 114 — 12(c)), the burden of proof in proceedings on such motion is upon defendant. (People v. Wright (1969), 42 Ill.2d 457, 460.) Thus, defendant would have had to demonstrate the unreasonable character of the search. This could have been impossible in light of the later testimony of Farrar that the weapon fell from the door panel into the plain view of himself and other officers as they watched defendant get out of the car. The weapon therefore was subject to seizure and introduction into evidence. (Harris v. United States (1968), 390 U.S. 234, 236; Ker v. California (1963), 374 U.S. 23, 43.) The fact that this testimony was brought out by the defense on cross-examination to Farrar is of no moment because it would undoubtedly have been brought out at the hearing on a motion to suppress. Therefore, being unable to suppress the weapon, a motion for a directed verdict would not have led to defendant’s acquittal.

The defendant’s contention that his trial counsel was incompetent is also based upon the proposition that the defense counsel proved the State’s case. This contention is unsound. The direct testimony of Farrar clearly established that defendant carried a shotgun concealed in the door panel of his vehicle which, if credible, was sufficient to sustain defendant’s conviction unless defendant could show that his conduct came within an exception, which he was not able to do.

Lastly, defendant attempts to show his trial counsel’s ineptitude, by contending that counsel’s failure to call a witness to bolster defendant’s credibility was improper. Defendant testified that when he received the shotgun from his sister the bolt was removed and that the weapon was given to the police in the same condition. The record does not disclose that defendant’s sister was available, that counsel made no attempt to secure her or that she would have corroborated defendant’s testimony. In People v. Morris (1954), 3 Ill.2d 437, 445, a case cited by defendant on appeal, it was pointed out that the reviewing court “does not consider facts outside the trial court’s record * * Thus, there is no basis for defendant’s contention in this regard.

The judgment of the trial court is affirmed.

Judgment affirmed.

ENGLISH, P. J., and DRUCKER, J., concur.

       Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1 provides:
      “(a) A person commits the offense of unlawful use of weapons when he knowingly:
      # * *
      (4) Carries concealed in any vehicle or concealed on or about his person except when on his land or in his own abode or fixed place of business any pistol, revolver or other firearm; * * *.’’

       Ill. Rev. Stat. 1969, ch. 38, par. 24 — 2:
      “(b) Subsection 24 — 1(a) (4) does not apply to or affect any of the following:
      8 8 8
      (4) Transportation of weapons broken down in a nonfunctioning state or not immediately accessible.”

       Note that the penalty for the violation of Ill. Rev. Stat. 1969, ch. 38, par. 24 — 3.1 (a) (4), the original charge, is a fine not in excess of $1000 or imprisonment for not more than one year or both,while the penalty for the violation of Ill. Rev. Stat. 1969, ch. 38, par. 24 — 1(a) (4), the offense for which defendant was ultimately convicted, is a fine not in excess of $500 or imprisonment for not more than one year or both.


author: Mr. PRESIDING JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. R. D. Jackson, Defendant-Appellant.
    (No. 53750;
    First District
    — November 15, 1971.

      Arthur E. Engelland and Robert S. Bailey, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Paul P. Bieber, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

On January 17, 1967, defendant, R. D. Jackson, and Jonnie Mae Kimmons, his mother-in-law, were indicted for unlawfully possessing marijuana, in violation of section 22 — 3 of the Criminal Code. (Ill. Rev. Stat. 1965, ch. 38, par. 22 — 3.) Both Jackson and Mrs. Kimmons pleaded not guilty and waived their right to trial by jury. At the bench trial the charge against Mrs. Kimmons was dismissed when the prosecution concluded its case-in-chief. Jackson was found guilty, convicted of the crime as charged, and subsequently sentenced to serve a term of no less than two, nor more than four years in the penitentiary. Defendant appeals.

It appears from the record that on June 8, 1966, pursuant to a duly executed search warrant, Detective Richard McKelvey of the Chicago Police Department, with three other police officers, searched the third floor apartment of the building at 4053 West Van Burén Street, Chicago. Mrs. Kimmons was the only adult in the apartment at this time.

The search of this apartment revealed a quantity of marijuana in a hat box under the bed in the front bedroom. When Mrs. Kimmons was confronted with this contraband, she stated that she had no knowledge of its presence. Officer McKelvey testified that while the search was being conducted the telephone rang and he heard the caller say, “Get the key, get the stuff out of the room, the police are coming.” Mrs. Kimmons indicated to the investigating officers that she was unaware of the identity of the caller.

In addition to the marijuana, an electric bill and final reminder from the electric company were found in the dresser which was located in the same room where the marijuana was discovered. These bills were addressed to the name of Jimmie Brown. Letters addressed to R. D. Jackson and letters and magazines addressed to Jimmie Brown were found in other portions of the apartment. Articles of male and female clothing were also found in the bedroom where the marijuana was found as well as in its adjacent closet.

On direct examination by the prosecution, Officer McKelvey testified that he was aware of the fact that defendant used the following aliases: Jimmie Brown, Flip, Robert Jackson and R. D. Jackson. This officer further testified that he was not present at the time of defendant’s arrest.

At the trial, Mrs. Kimmons testified that defendant had been married to her daughter for four or five years and that tihey resided together in the apartment. She further stated that the door to the room where the marijuana was found was always locked, that she never cleaned this room and that she paid defendant $65.00 per month for her part of the rent. At the conclusion of her testimony, the trial judge, being of the opinion that Mrs. Kimmons was not aware of the presence of the marijuana, dismissed the charge against her.

Sergeant Kurowski testified that pursuant to a warrant, he and Officer Donald Dura arrested the defendant on the evening of September 7, 1966, at a pool room located at 1144 South Kedzie Avenue, Chicago. Officer Kurowski testified that upon seeing the defendant, he asked him to identify himself. Defendant identified him to be R. D. Jackson and was then placed under arrest. When advised of his constitutional rights, this officer stated that the only statement which defendant made at that time was; “I know that.” When asked if Jackson said anything other than: “I know that,” Officer Kurowski responded negatively.

Detective Donald Dura testified that when he and Officer Kurowski informed Jackson that he was under arrest, he immediately responded stating: “What do you want me now for? You put me out of business when you got my stuff at the house.” Over defendant’s objection, the trial judge ruled the evidence of that statement to be admissible in evidence.

Jackson, when called to testify in his own behalf, stated that he did not reside in the 4053 West Van Ruren apartment during June of 1966, that he did not use the name, Jimmie Brown; that at the time of his arrest he did not make the statement which Officer Dura testified to, and that he knew nothing about the marijuana which was found in the apartment. Defendant further testified that to his knowledge, the other occupants of the apartment had access to the bedroom where the narcotic was found.

The last witness to testify on defendant’s behalf was Carol Jackson, defendant’s wife. She stated that she resided in the Van Burén apartment during June of 1966, but that her husband did not Mrs. Jackson testified that she and her husband separated in January of 1966, and that since then, he had not been to their apartment.

In prosecuting this appeal, defendant has raised four contentions. They are: (1) that the testimony of Mrs. Kimmons should not have been considered against him; (2) that the evidence of the statement which he allegedly made at the time of his arrest should have been suppressed; (3) that the lower court erred in refusing to allow the defense to read to Officer McKelvey, the transcript of the testimony which he rendered at the preliminary hearing; and (4) that the evidence was insufficient to establish his actual or constructive possession of the marijuana.

Regarding the admissibility of Mrs. Kimmons testimony as it related to the issue of defendant’s guilt, it is urged that this testimony should not have been considered by the trial judge due to the fact that defendant’s attorney was not afforded the opportunity to cross-examine her. It does not appear from the record that defendant objected to the consideration of this testimony, that defendant requested to cross-examine this witness, or that defendant was precluded from cross-examining this witness. The failure to object to the admission of evidence must be considered to constitute a waiver of that objection. Callaghan v. Miller, 17 Ill.2d 595; Bonczkowski v. Kucharski, 13 Ill.2d 443.

The introduction of the evidence of the statement allegedly made by defendant at the time of his arrest, did not, as he now contends, violate the holdings of the Supreme Court in Miranda v. Arizona, 384 U.S. 436, or Orozco v. Texas, 394 U.S. 324.

The Miranda and Orozco decisions dealt with the admissibility of statements which were the products of in-custody interrogations conducted without apprising the suspect of his constitutional rights.

The distinguishing aspect of the present case is that the statement, the introduction of which defendant now complains was not the product of an interrogation, but was merely a spontaneous and voluntary declaration. The language of the Supreme Court in Miranda, and found at 384 U.S. 436, 378, is pertinent to the case at bar. There it is stated:

“Any statement given freely and voluntarily without any compelling influences is, of course, admissible in evidence. The fundamental import of the privilege while an individual is in custody is not whether he is allowed to talk to the police without the benefit of warnings and counsel, but whether he can be interrogated. There is no requirement that police stop a person who enters a police station and states that he wishes to confess to a crime, or a person who calls the police to offer a confession or any other statement he desires to make. Volunteered statements of any kind are not barred by the Fifth Amendment and their admissibility is not affected by our holding today.”

In the case of In re Orr, 38 Ill.2d 417, it was held that voluntary spontaneous declarations may be received in evidence irrespective of whether or not the suspect has been apprised of his constitutional rights. The court at 38 Ill.2d 417, 423 stated:

“* * * in our opinion, it is clear that the use in evidence of the statement of respondent was not proscribed by Miranda. That case requires that ‘a person * * * taken into custody or otherwise deprived of his freedom of action in any significant way * # [p]rior to any questioning, * * * be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. (384 U.S. at 444, 16 L.Ed.2d at 706, 86 S.Ct. 1602.) While Officer Sherry admitted that respondent was not advised of his right to remain silent prior to giving his oral statement, he also asserted, without contradiction, that no questioning preceded it. It is therefore apparent that the issue here is not the necessity of a warning prior to questioning, but its necessity before a spontaneous declaration may be received in evidence. (Emphasis added.) Although we have not heretofore considered this question, our research discloses several cases in which other courts have done so. All agree that Miranda does not require police to interrupt a suspect in the process of making a spontaneous statement in order to warn him of his constitutional rights, and that a statement made in the absence of any questioning is not inadmissible by virtue of the failure to give such warning. (Ballay v. People, (Colo.) 419 P.2d 446, 449; United States v. Cruz, (W. D. Tex.) 265 F.Supp. 15, 20; Diaz v. United States, (E. D. La.), 264 F.Supp. 937, 945; People v. Jones, (D.C.A.), 52 Cal. Rptr. 924, 926; see also State v. Hymore, 9 Ohio St.2d 122, 224 N.E.2d 126, 129.) In our opinion, these decisions are correct.”

Also see People v. Zepeda, 47 Ill.2d 23 and People v. Ricketson, 129 Ill.App.2d 365.

In view of the language found in Miranda, and the holding of In re Orr, we conclude that in the present case, it was proper for the trial judge to admit the evidence of defendant’s voluntary and spontaneous statement.

The third contention is that the lower court erred in refusing to allow defendant’s attorney to read to Officer McKelvey, the transcript of the testimony which he gave at the preliminary hearing.

The record indicates that after the defendant testified in his own behalf, Officer McKelvey was recalled to testify by the defense. Defendant’s attorney stated that he was calling this witness for the purpose of proving that defendant did not make the inculpatory statement to which Officer Dura testified. When asked if he recalled having a conversation with defendant on September 7, 1966, Officer McKelvey stated that defendant did not say anything to him at the time of his arrest. When asked what was said during the conversation between defendant and himself later that day at the police station, McKelvey stated that he couldn’t remember. Defendant’s attorney then showed this witness a document which he identified as the transcript of testimony elicited at the preliminary hearing. The witness further stated that this document refreshed his recollection. Defendant’s attorney then attempted to read to Officer McKelvey the following statements which he allegedly made at the preliminary hearing:

“Now, on the 7th of September, 1966, at 1144 North Kedzie, or South Kedzie, we had an opportunity to be furnished with information stating that Jackson, otherwise named Jimmie Brown, was presently at this location. We went to that location and placed Mr. Jackson under arrest. * * * We went to that location and placed Mr. Jackson under arrest via the arrest warrant taken out for him for the possession of marijuana. At the time he was arrested he stated he knew nothing about marijuana, that occasionally he did smoke marijuana but preferred booze over the marijuana.”

When the prosecution objected to this form of cross-examination, defendant’s attorney indicated to the court that he wanted to use this prior testimony for the purpose of impeachment. The trial judge, in sustaining the prosecution’s objection stated that he would allow the witness to be impeached but ruled that this particular method was improper due to the fact that as of that time, the witness had not testified to the contrary. We think the trial judge was in error.

It appears that when Officer Me Kelvey testified as a witness on behalf of the state, he stated that he was not present at the time defendant was arrested. This is clearly inconsistent with the statement which this witness testified to at the preliminary hearing and therefore admissible for impeachment purposes. (People v. Moses, 11 Ill.2d 84.) It is the rule that the exclusion of evidence, designed to impeach a witness or affect his credibility, will constitute reversible error where the effect has been prejudicial. (People v. Whitehead, 35 Ill.2d 501; People v. Malston, 122 Ill.App.2d 466.) The ultimate issue which must therefore be resolved is whether or not this error was prejudicial to the rights of defendant.

Aside from the evidence of the inculpatory statement which defendant was alleged to have made, the only evidence presented which related to the issue of defendant’s residing in the apartment was the testimony of Mrs. Kimmons and the presence of the men’s clothing and mail which were found in the apartment.

Although Mrs. Kimmons stated that defendant lived in the apartment, at no time did she testify as to when he lived there. Likewise, the finding of mail bearing defendant’s name does not necessarily indicate that he was a resident of that apartment at the time the police conducted its search. Regarding the men’s clothing which was found in the bedroom and its adjacent closet, it must be pointed out that the record is devoid of any evidence which would indicate that this clothing was defendant’s property.

The issue of whether defendant made the alleged inculpatory declaration was an important consideration on the question of his possession of the discovered marijuana. The refusal of the court to permit the defense to cross-examine Officer McKelvey about his claimed inconsistent testimony given at the preliminary hearing was, therefore, prejudicial to the rights of the defendant. To hold otherwise would require speculation as to what that cross-examination would reveal. The judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Reversed and cause remanded with directions.

LYONS and GOLDBERG, JJ., concur.


author: Mr. JUSTICE LYONS.

text:
    Sterling Savings and Loan Association, Plaintiff-Counter-Defendant-Appellee, v. Joseph F. Giampa, et al., Defendants-Counter-Plaintiffs-Appellants.
    (No. 54573;
    First District
    — November 15, 1971.
    Carl J. CipoIIa, of Chicago, (Harry G. Fins, of counsel,) for defendants-counter-plaintiffs-appellants.
    Bernard M. Feldman and Alan I. Boyer, of Chicago, for plaintiff-counter-defendant-appellee.
   Opinion by

Mr. JUSTICE LYONS.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles W. Johnson, Defendant-Appellant.
    (No. 54775;
    First District
    — November 15, 1971.
    Gerald W. Getty, Public Defender, of Chicago, (Herbert Becker, Ronald P. Katz, and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.
    Edward V. Hanrahan, State’s Attorney, of Chicago, (Robert A. Novelle and Martin Moltz, Assistant State’s Attorneys, of counsel,) for the People.
   Opinion by

Mr. JUSTICE LYONS.