text:
    Talandis Construction Corporation, Plaintiff, v. Illinois Building Authority, Defendant—(Illinois Building Authority, Third-Party Plaintiff-Appellant, v. Board of Trustees of the University of Illinois, Third-Party Defendant-Appellee).
    (No. 58987;
    First District (1st Division)
    November 4, 1974.

      No brief for plaintiff Talandis Construction Corporation.
    No brief for defendant Illinois Building Authority.
    Schippers, Betar, Lamendella & O’Brien, of Chicago (Dennis M. O’Brien, of counsel), for third-party plaintiff-appellant.
    Hackbert, Rooks, Pitts, Fullagar & Poust, of Chicago (Jerome N. Groark, Stephen E. Sward, and James J. Costello, of counsel), for third-party defendant-appellee.
   Mr. JUSTICE BURKE

delivered the opinión of the court:

This is an appeal by the Illinois Building Authority from an order dismissing its third-party complaint.

In January of 1968, the plaintiff, Talandis Construction Corporation, entered into a contract with the Illinois Building Authority (Authority) to construct a smaU animal clinic and hospital for the use of the School of Veterinary Medicine at the University of Illinois at Urbana. Talandis commenced construction on February 26, 1968, pursuant to the terms of the contract with the Authority, and established progress schedules in order to comply with the required completion date of February 1, 1970. Shortly after work had begun, the University and the Authority determined to give consideration to the future construction of an additional, larger animal clinic to be placed immediately to the west of the facility being constructed by Talandis.

Plaintiff filed a complaint on August 13, 1971, alleging that the consideration of the proposed large animal clinic led to indecision over the final plans and specifications of the small animal clinic. The indecision allegedly caused delays and work stoppages which forced plaintiff to abandon its progress schedules and customary practices of construction. Substantial disarrangement allegedly ensued, making performance in an orderly manner impossible. As a result, Talandis sought damages for additional costs, overhead and profit.

Plaintiff alleges that the Authority breached or varied its contract in requiring the plaintiff to honor a stop order and numerous change orders issued by the Authority and its architect, the Perkins and Will partnership, in an attempt to coordinate the planning and construction of the proposed larger clinic with the facility being constructed by Talandis. Accommodations for such coordination were not allegedly contemplated in the original contract between plaintiff and the Authority.

The Authority filed a third-party complaint against the Board of Trustees of the University and the Perkins and Will partnership, alleging the latter to be an agent of the University. The essence of the Authority’s complaint was that the University was primarily responsible for the delays in construction and therefore interfered with the plaintiff’s timely and proper performance of its construction contract. The Authority sought indemnification from the University from any judgment entered against it in favor of the plaintiff.

The University responded with a motion to dismiss on the basis that the Authority’s complaint was barred by the provisions of section 8(d) of “An Act to create the Court of Claims * * ®” (Ill. Rev. Stat. 1973, ch. 37, 439.8(d)), in that the exclusive jurisdiction of any claim sounding in tort against the Board of Trustees of the University lies in the Court of Claims. The trial court granted the motion to dismiss, with leave to amend.

The Authority filed an amended third-party complaint based upon a similar theory of the University’s interference with the contract between the Authority and the plaintiff. The University moved to dismiss and again the trial court dismissed the complaint with leave to amend.

The Authority filed a second amended third-party complaint, again alleging that the University had interfered with the proper performance of plaintiff’s contract. The Authority also relied on a lease agreement between itself as lessor and the University as lessee of the property upon which the small animal clinic was being constructed. Paragraph 20 of the amended third-party complaint states:

“20. That if the allegations of the complaint are proven to be true, the Third-Party Defendant, BOARD OF TRUSTEES OF THE UNIVERSITY OF ILLINOIS, should be liable under the lease agreement to pay to the Third Party Plaintiff the amount of any judgment rendered herein against it and for the costs and expenses incurred, including attorney’s fees and court costs.”

The University responded with a motion to dismiss contending that the language of the lease did not require the University to indemnify the Authority should tire Authority be found to have breached its contract with the plaintiff. From an order dismissing the second amended third-party complaint, the Authority appeals. The court found that there was no just reason to delay enforcement or appeal. .We conclude that the trial court properly dismissed the second amended third-party complaint.

Two statutory provisions establish that any common-law tort claim against the Board of Trustees of the University must be filed in the Court of Claims. The enabling act of the University in part provides that the Board of Trustees shall:

“* tt # be a body corporate and politic * * * have perpetual succession, have the power to contract and be contracted with, to sue and be sued, provided that any suit against the Board based upon a claim sounding in tort must be filed in the Court of Claims [this provision was added by amendment approved August 26, 1971], to . plead and be impleaded, to acquire, hold, and convey real and personal property.” Ill. Rev. Stat. 1973, ch. 144, par. 22.

The enabling act of the Court of Claims provides that the court shall have exclusive jurisdiction over the following matters:

“All claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit, and all like claims sounding in tort against the * * * Board of Trustees of the University of Illinois; # ” provided, that an award for damages in a case sounding in tort shall not exceed the sum of $100,000 to or for the benefit of any claimant.” Ill. Rev. Stat. 1973, ch. 37, par. 439.8(d).

The Authority argues that the University retained final authority over the ultimate approval of additional plans and specifications under the provisions of the act creating the Authority. (Ill. Rev. Stat. 1967, ch. 127, par. 213.5(a).) Because of this final approval power, the Authority says that the University was responsible for the indecision leading to the construction delays of the small animal clinic. As the above statutory provision indicates, the Court of Claims has exclusive jurisdiction for any claim sounding in tort against the Board of Trustees of the University. The Authority, therefore, cannot lawfully prosecute its third-party action based on alleged tortious conduct on the part of the University. Board of Trustees v. Industrial Com., 44 Ill.2d 207, 254 N.E.2d 522.

We recognize that section 8(d) of the Court of Claims Act provides that in a case sounding in tort, the claimant cannot be awarded more than $100,000. This provision does not overcome the positive statement in this Act that claims sounding in tort must be brought in the Court of Claims.

We next consider the provisions of the lease agreement between the Authority and the University. The provision which allegedly indemnifies the Authority for any judgments awarded against it because of a breach affecting a third-party construction company reads:

“8. It is expressly understood and agreed that upon the payment of the total sum of $10,786,635. (less the sum of $1,053,725. which has been paid under the terms of an Interim Lease) in rentals under the terms of this lease and all renewals thereof plus any other amounts which Lessor may have paid to protect its interest hereunder, this Lease shall terminate and Lessor shall transfer to Lessee all of Lessors right, title and interest in and to said Facilities, and also jurisdiction or title to all parts of the property described in Paragraph 5 hereof as to which the Lessee has theretofore transferred jurisdiction or title to the Lessor pursuant to the Act, all free and clear of the terms of this Lease and all other encumbrances, except any presently existing, and except Acts done or suffered by Lessee, or other cause beyond the control of Lessor.”

Contracts of indemnity are to be strictly construed, and the courts will not read into the contract an indemnity term where it is clear from the language of the contract that no such term was intended. Westinghouse Electric Elevator Co. v. La Salle Monroe Building Corp., 395 Ill. 429, 70 N.E.2d 604; Marshall Field & Co. v. J. B. Noelle Co., 81 Ill.App. 2d 409, 226 N.E.2d 454.

The language of the provision is plain and unambiguous. The University is bound to pay only the additional expenses incurred by the Authority in protecting its interest “hereunder,” or under the lease. Under the lease the Authority is to receive the annual rent, to be assured that the University pay any taxes due, make repairs, not overload the floors, etc. If the University should fail in any of the obligations stipulated in the lease, the University must reimburse the Authority for monies paid “to protect its interest hereunder.” The Authority is seeking indemnification from the University for additional construction costs resulting from the Authority’s alleged breach of a separate contract between itself and the plaintiff construction company. There is nothing in the language of the provision that requires the University to indemnify the Authority under the circumstances. In essence, the Authority is not seeking indemnification for any rights it may possess by virtue of the lease.

■ The Authority argues in the alternative that the University breached an implied duty not to interfere with the contract between the Authority and the plaintiff. Despite the mixture of terms from contract and tort law, all of the theories used to substantiate implied indemnification involve fault weighing. The inquiry is usually directed towards tortious conduct of some kind, where the courts attempt to determine which party must bear primary responsibility for the injury. (Wrobel v. Trapani, 129 Ill.App.2d 306, 264 N.E.2d 240.) Insofar as the Authority’s argument is based upon the University’s alleged interference with the plaintiff’s performance, the claim cannot be pursued in the circuit court.

The Authority further argues that the lease between itself and the University makes the University an interested party in the contract between the Authority and the plaintiff. The Authority contends that in the absence of an express indemnity agreement, the University is in reality a party in interest in the construction of the small animal clinic, thereby subjecting the University to the payment of damages for any breach attributed to the fault of the Authority. The question, then; is whether a breach of contract complaint against the Authority can be the basis for a third-party action against the University for indemnification. We bélieve that it cannot.

Board of Education v. Joseph J. Duffy Co., 97 Ill.App.2d. 158, 240 N.E.2d 5, is a case in which this court addressed the same question. In ■Duffy, the Board of Education, as plaintiff, sued an architectural firm on the grounds that it breached its contract with the Board by improperly supervising and designing a high school building. The architectural firm filed a third-party complaint against Duffy, the general contractor, claiming indemnification against a possible judgment in favor of the plaintiff. After finding that the statute of limitations had rendered all questions of tort liability irrelevant, the Duffy court faced the identical question now before us. The court in Duffy concluded as follows:

“Our research discloses no authority — and Perkins cites none — for the proposition that liability for breach of contract might entitle the wrongdoer to indemnity from a third party who was a stranger to the contract and who had not contractually undertaken to indemnify the wrongdoer.” 97 Ill.App.2d 158, 162.

The Authority faces the possibility of being held liable in contract. As the Duffy decision indicates, a stranger to a contract between two parties cannot be compelled to indemnify one of the parties for breach of contract absent the stranger’s express agreement to so indemnify. The University is not a party to the contract between the Authority and the plaintiff, which was in fact executed after the lease agreement between the Authority and the University. Being a stranger to that contract, the University does not have a duty — express or implied — to indemnify the Authority for a possible adverse judgment based upon an alleged breach of contract.

We hold, therefore, that the trial court properly dismissed the third-party complaint against the University, and the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

author: Mr. JUSTICE BURKE

license: Public Domain

text:
    Jacqueline Thomas, Plaintiff-Appellant, v. Daniel Thomas, Defendant-Appellee.
    (Nos. 59653, 59761 cons.;
    First District (1st Division)
    November 4, 1974.

      Marcia H. Zeidman and Samuel E. Hirsch, both of Chicago, for appellant.
    Rosenberg & Kosin and Stuart Litwin, both of Chicago (Ellis B. Rosenzweig, of counsel), for appellee.
   Mr. JUSTICE BURKE

delivered the op'nion of the court:

Plaintiff appeals from an order entered by the circuit court of Cook County following proceedings enrolling an Indiana divorce decree in Illinois. The complaint was amended to include a request for increase in child support and reimbursement of medical expenses. The court entered an order changing custody and support arrangements of the parties’ children. The court terminated child-support payments for the son of the parties, Mark, who had reached his majority, terminated support payments for the elder daughter, Wendy, who has since attained her majority, and placed her in the temporary custody of her father, the defendant. (The temporary-custody provision would become inoperative when Wendy reached her majority.) The court set support payments for the third child, Lynn, at $300 per month.

The defendant appeals from an order refusing to assess costs and fees against plaintiff pursuant to section 41 of the Civil Practice Act. The appeals have been consolidated. The court found that the defendant’s petition was well-founded, but did not allow the defendant to recover costs and fees, citing plaintiff’s inability to pay.

Defendant contests the trial court’s subject-matter jurisdiction. The essence of defendant’s contention is that an Indiana divorce decree should not have been enrolled in Illinois while the defendant was residing in Indiana in full compliance with the terms of the. decree. Although the defendant withdrew his objection to the registration of the Indiana decree in order to proceed with the disposition of the case, he raises the issue on appeal.

The issues presented to us for review are: (1) whether the trial court had' shbject-matter jurisdiction over the plaintiff’s position; (2) whether the trial court should have granted fees and costs to the defendant pursuant to section 41 of the Civil Practice Act; (3) whether it was an abuse of judicial discretion to deny plaintiff’s request for a continuance during the course of the bench trial on July 17, 1973; and (4) whether it was an abuse of judicial discretion to change the Indiana divorce decree from $600 to $300 per month for the support of the only child remaining in plaintiffs custody. Any question as to the court order transferring the custody of Wendy to her father is moot, as she has reached her majority.

The purpose of the Uniform Enforcement of Foreign Judgments Act (Ill. Rev. Stat. 1973, ch. 77, par. 88 et seq.) is to enforce a foreign judgment against an errant party ignoring the provisions of tire judgment. The defendant argues that since he was a known Indiana resident, complying fully with the terms of the Indiana decree, there was no need to “pursue” him with allegedly frivolous claims. Based on language found in Reeves v. Reeves, 131 Ill.App.2d 831, 267 N.E.2d 529, the defendant argues that if there is no showing of a need to enforce a foreign divorce decree then an Illinois court lacks subject-matter jurisdiction over a petition to register that decree.

The defendant’s reliance on the Reeves decision is misplaced. Reeves involved a situation where the plaintiff attempted to register a Canal Zone divorce decree, issued by a United States District Court, for the express purpose of modifying the visitation rights stipulated by the decree. In other words, the case did not simply involve a problem of enforcement, as the defendant argues. The primary purpose of the plaintiff’s action in Reeves was to modify the decree without offering a proof of change in circumstances which related to the best interests of the child involved. This court in Reeves found that the Illinois policy of extending full faith and credit to foreign judgments would be subverted by the plaintiffs petition to register the Canal Zone decree for the express purpose of modifying it without proper cause. In upholding the trial court’s refusal to register the Canal Zone decree, this court in Reeves reiterated our established policy of recognizing and enforcing divorce decrees of sister states. Reeves v. Reeves, 131 Ill.App.2d 831, 267 N.E.2d 529; Faris v. Faris, 35 Ill.2d 305, 220 N.E.2d 210.

The plaintiff here did not seek to register the Indiana divorce, decree for the purpose of modifying its terms. As a resident of Illinois, she brought her action to enforce, not to modify, the provisions of the decree which called for the payment of medical bills allegedly ignored by the defendant. Her action was clearly within the purview of the Uniform Enforcement of Foreign Judgments Act. The Indiana divorce decree was entitled to full faith and credit. Therefore, the plaintiffs action presented a proper justiciable matter over which the circuit court of Cook County, Illinois has jurisdiction. Light v. Light, 12 Ill.2d 502, 147 N.E.2d 34; Ill. Const., art VI, sec. 9.

The second part of defendant’s appeal relates to the recovery of fees and costs under section 41 of the Civil Practice Act. (Ill. Rev. Stat. 1973, ch. 110, par. 41.) Section 41 is a remedial statute, one of its purposes being to prevent harassment resulting from untrue or unfounded allegations made in bad faith. (Ready v. Ready, 33 Ill.App.2d 145, 178 N.E.2d 650.) When the record discloses bad faith on the part of the pleader, the trial court may exercise discretion and award fees and costs to the other party. Grandys v. Spring Soft Water Conditioning Co., 101 Ill.App.2d 225, 242 N.E.2d 454.

Defendant argues that since the trial court found plaintiffs complaints for medical expenses frivolous and without reasonable foundation, fees and costs should have been awarded to him as a matter of law. Defendant’s argument would construe section 41 to compel a trial court to award costs and fees upon the finding of bad faith. Such is not, however, the intent of the statute. Allowance of attorney’s fees and costs is entirely discretionary. Section 41 does not mandate an award even if the trial court finds that the plaintiffs claims are frivolous and brought in bad faith. (See the Joint Committee Comments, S.H.A., ch. 110, par. 41 (1968).) Although the trial court found plaintiffs claims unreasonable, it denied a section 41 award to the defendant because the plaintiff had little or no assets from which to pay. It was entirely proper for the trial judge to exercise his discretion. We see no reason, arid defendant gives us none, to believe that the trial judge’s refusal to grant defendant section 41 costs and fees was an improper exercise of judicial discretion.

Plaintiffs first claim on her appeal is that the trial judge erred in denying her request for a continuance. Plaintiff’s previous attorney withdrew from the case after serving notice of his intention to withdraw on July 5, 1973. The trial judge required plaintiff to appear- in open court for a hearing on her attorney’s motion to withdraw. Plaintiff did appear on July 12 and was advised by the trial judge that she should obtain counsel for the trial scheduled for July 17. The record indicates that the trial judge also advised the plaintiff to file for a continuance if she felt that more time would be needed to obtain counsel for trial. The plaintiff indicated that she would have counsel for the trial, and no continuance was requested. On the day of the trial, July 17, the defendant and his attorney, the parties’ children, Mark’s attorney, and two of defendant's witnesses, in response to subpoerias, appeared in court. It was during the course of the trial’s proceedings, for the first trine, thát plaintiff requested a continuance because she lacked counsel.

Section 59 of the Civil Practice Act provides the rule for extension of time and continuances:

“On good cause shown, in the discretion of the court and on just terms, additional time may be granted for the doing of any act or the taking of any step or proceeding prior to judgment.
The circumstances, terms and conditions under which continuances may be granted, the time and manner in which application therefor shall be made, and the effect thereof, shall be according to rules.” Ill. Rev. Stat. 1973, ch. 110, par. 59.

The applicable rules prescribed by the supreme court address the important consideration of when the motion for continuance is offered. Supreme Court Rule 231(f) provides:

“No motion for the continuance of a cause made after the cause has been reached for trial shall be heard, unless a sufficient excuse is shown for the delay.” Ill. Rev. Stat. 1973, ch. 110A, par. 231(f).

The facts in this case clearly illustrate the reason for the reluctance to grant a continuance after a trial has commenced. The record indicates that tire plaintiff had been given an opportumty to file for a continuance 5 days prior to the trial date. The fact that plaintiff lacked counsel during the trial could have been avoided by her own diligence in either securing a lawyer for trial, or requesting a continuance prior to the day of trial. The record demonstrates that the trial judge extended every courtesy permitted by our laws to the plaintiff. Once the parties and witnesses assembled for the trial proceedings, granting plaintiff’s request would have caused great inconvenience to all of those gathered. Plaintiff could not give adequate reason why she lacked counsel, and we see no valid reason to disturb the trial judge’s ruling. As stated in Schneider v. Seibutis, 3 Ill.App.3d 323, 326, 279 N.E.2d 37, good cause must be offered before a motion to continue during trial will be granted:

“Because of the potential inconvenience to the parties, the witnesses and the court, especially grave reasons for granting a delay must be given once a case has reached the trial stage.”

It is well established that a motion for continuance, except where it is based on a statutory cause, is addressed to the sound discretion of the trial judge. The exercise of such discretion will not be interfered with by the appellate court unless there has been a manifest abuse of discretion or a palpable injustice. (Condon v. Brockway, 157 Ill. 90, 41 N.E. 634.) The record reveals no such result here. The order entered on the trial date terminated child support for a child who had reached his majority and was represented by his own attorney, transferred custody of the parties’ elder daughter, who has since reached her majority, and adjusted the child-support payments to provide an adequate payment to plaintiff for the remaining child in her custody. The issue of reimbursement for medical expenses was not adjudicated .until a second hearing when plaintiff appeared in court represented by counsel. Although absence of counsel is one factor to take into consideration in deciding on a motion to continue, it does not entitle a party to a continuance as a matter of right. (Adcock v. Adcock, 339 Ill.App. 543, 91 N.E.2d 99.) Plaintiff had ample opportunity to extend the time for trial in order to obtain counsel. We find that the denial of plaintiffs motion for a continuance, particularly where no prejudice resulted to the plaintiff, was a proper exercise of the trial judge’s discretion.

The final question before us is whether it was an abuse of judicial discretion to change the Indiana divorce decree from $600 to $300 per month for the support of plaintiffs youngest daughter.

The record indicates that the trial judge approached the question of child support from all of the pleadings and evidence presented. The terms of the 1965 Indiana divorce decree were before the trial court. The plaintiff received a divorce settlement of $47,000 in addition to property and household furnishings. The plaintiff also received a grant of $50,000, payable monthly in 125 equal installments of $400, which the defendant is still paying. The defendant is obligated to provide all medical and dental expenses for the child remaining in plaintiffs custody. The court was also aware that the defendant is providing for the care and support of the elder daughter, who has reached her majority. Additionally, the defendant has agreed to provide college education expenses for the oldest son, Mark, who is emancipated.

The issue on a petition for modification of child-support payments is whether there has been a material change of circumstances since the entry of the original decree. (Lewis v. Lewis, 120 Ill.App.2d 263, 256 N.E.2d 660.) The findings and order of the trial court will not be reversed unless the level of child support is contrary to the manifest weight of the evidence. Kelleher v. Kelleher, 67 Ill.App.2d 410, 214 N.E. 2d 139.

The record indicates that the modification of the decree was not arbitrary or capricious. The reduction of child-support payments was justified by the substantial change in circumstances. Two of plaintiffs children had reached majority and ceased to be under plaintiffs care and custody. Only the youngest daughter, Lynn, remains in the custody of the plaintiff. Defendant still has an obligation to provide for Lynn’s medical and dental care. In light of these and the foregoing facts presented, we find that a reduction of child-support payments from $600 to $300 per month for the one child was not against the manifest weight of the evidence. Finding no reversible error, the judgment is affirmed.

Judgment affirmed.

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


author: Mr. JUSTICE GOLDBERG.

text:
    Donald E. Smith, Plaintiff-Appellee, v. Chicago State University et al., Defendants-Appellants.
    (No. 59918;
    First District (1st Division)
    November 4, 1974.
    Dunn, Brady, Goebel, Ulbrich, Morel & Jacob, of Bloomington, and Jenner & Block, of Chicago (Frank M. Brady and Richard T. Franch, of counsel), for appellants.
    No appearance for appellee.
   Opinion by

Mr. JUSTICE GOLDBERG.


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Jeffrey Boyd, Petitioner-Appellant.
    (No. 59968;
    First District (1st Division)
    November 4, 1974.
    Paul Bradley and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Donald M. Devlin, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William Helse, Defendant-Appellant.
    (Nos. 59978-83 cons.;
    First District (1st Division)
    November 4, 1974.

      Katz, Hirsch and Wise, Ltd., of Chicago (Frederick F. Cohn, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Donald M. Devlin, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.

GOLDBERG, J., took no part.


author: Mr. JUSTICE MEJDA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Jackson, Defendant-Appellant.
    (No. 56993;
    First District (3rd Division)
    November 7, 1974.

      James J. Doherty, Public Defender, of Chicago (Lee T. Hettinger, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Patricia Bobb, and Michael Epton, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

Following a jury trial, defendant Robert Jackson was found guilty of murder and sentenced to serve a term of 14 to 25 years in the penitentiary. Defendant appeals, contending that (1) the trial corut erred in admitting into evidence a statement of the deceased that defendant shot him; (2) the trial court erred in allowing officers to testify that they advised him of his rights and had a conversation with him; (3) he was not proved guilty beyond a reasonable doubt; and (4) the instructions to the jury were not adequate.

The indictment charged defendant with three counts of murder in that he shot and killed James Owens with a gun (1) intentionally and knowingly; (2) knowing that such shooting created a strong probability of death or great bodily harm; and (3) while committing a forcible felony, to wit, armed robbery (Ill. Rev. Stat. 1969, ch. 38, pars. 9 — 1, 9 — l(a-2), and 9 — l(a-3)).

At trial, Michael Blake testified for the State that he and Owens, the deceased, were walking home in the early morning hours of August 3, 1970, after drinking earlier at a couple of bars. They approached the intersection of 51st Street and Cottage Grove Avenue, in Chicago, when the following took place. Two men came from the rear; one of them, the defendant, asked Blake and Owens where they were going. Receiving no reply, defendant asked if they could walk with them and Owens said, “No, you may not.” Defendant then pulled out a gun and announced that it was a stickup. The other man was not armed. Complying with defendant’s demand, Blake threw down his wallet. Owens told them they could have anything they wanted, but he pulled out a gun from the book bag he was carrying. Blake saw defendant fire. Owens told him to run and he ran across 51st Street, then west to the bar from which they had come. He told the bartender to call the police, then he immediately returned to the scene of the shooting where he found Owens lying face up in the street with a stomach wound. Owens said, “He shot »> me.

The witness further testified that he saw two men helping another around the corner of a building and that the third man appeared to be limping. When defendant was pointing the gun he was facing Blake and the lighting was good; he could see that defendant was wearing dark clothing and had some sort of deformity of his teeth. On cross-examination he again testified that the armed assailant was wearing dark clothing but that his attention at that time was focused on the gun and his face. Owens and the witness were approximately 4 feet from the assailant when the latter fired the first shot. Blake testified that he identified defendant at the coroner’s inquest as the armed assailant, and stated that “there were no other black males sitting with Mr. Jackson at the inquest.”

The State called two police officers who testified that they were present at the hospital where defendant was admitted for treatment of a bullet wound in the leg. Officer Bobko testified that he responded to a police broadcast and had seen defendant at Billings Hospital; that defendant was lying in the emergency room, and the clothing on the floor around him was “dark and almost matching.”

Officer Jannotta, whose testimony is hereafter more fully detailed, stated that he also found the defendant at Billings Hospital.

Troy Harris testified for the defense that on the evening in question he heard some shooting as he was coming out of a bar. After the shooting stopped he heard defendant call his name, and defendant told him he had been shot. Harris carried defendant across the street and flagged down a friend who drove them to the hospital. He further testified that at the time defendant was wearing light-grey pants and a matching shirt.

Defendant’s mother testified that her son was wearing.light-grey pants on the evening of the shooting. The pants were marked for identification but were not introduced into evidence. On cross-examination she testified that the pants she picked up from the hospital had been worn by the defendant and his brothers.

Defendant testified on his own behalf that as he was returning home from listening to a group of friends sing he saw four men standing on the sidewalk. As he passed he heard them arguing, then heard gun shots. He ducked to the ground and was shot in the kneecap. He saw Blake running west on 51st Street after the shooting. Harris picked him up, rushed across the street and stopped a friend, Carol, who drove them to the hospital. Defendant further testified that he was wearing light-grey khaki pants, referring to the trousers which were marked for identification. He stated that he was given a shot at the hospital; he did not remember talking to a police officer nor seeing Officers Bobko or Jannotta at Billings Hospital; and he denied possession of a gun and participation in a robbery. He testified — as did his mother — that he was wearing a short natural haircut on the evening in question. On cross-examination defendant denied talking to Officer Jannotta at the hospital. The prosecutor then read from the transcript of a previous bond hearing in which defendant admitted talking to a policeman concerning the incident. The prosecutor asked defendant, “Do you remember telling Officer Jannotta that you weren’t even at 51st Street and Cottage Grove?” Defendant denied the statement and defense counsel objected to the question and requested that it be stricken and the jury be instructed to disregard it.

At this point in the proceedings the court admonished the prosecutor that he could establish impeachment by having Officer Jannotta state that he talked to defendant but not the substance of the conversation. The trial court struck the question and answer and instructed the jury to disregard them. Defendant then stated a policeman asked him something at Cook County Hospital and that he did not remember testifying at the bond hearing; that he had talked to a lot of policemen.

On redirect examination defendant stated that he did not remember what the policemen said to him or what he said to them. Defense counsel then asked defendant if he remembered denying [apparently at the bond hearing, although the record is not clear as to this point] being at 51st Street and Cottage Grove, to wh'ch defendant answered “No”. The instructions given to the jury included the following Illinois Pattern Instructions — Criminal, which are relevant to defendants argument on appeal:

IPI — Criminal No. 7.01
“A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,
he intends to Mil or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual; or he is attempting to commit or is committing the crime of armed robbery.”
IPI — Criminal No. 7.02
“To sustain the charges of murder, the State must prove the following propositions:
First: That the defendant performed the acts which caused the death of James Owens;
Second: That when the defendant did so, he intended to Mil or do great bodily harm to James Owens, or he knew that his acts created a strong probability of death or great bodily harm to James Owens; or he was attempting to commit or was committing the crime of
Armed Robbery.
# * #»
IPI — Criminal No. 14.01
“A person commits the crime of armed robbery who, while armed with a dangerous weapon, takes property from the person or presence of another by the use of force or by threatening the imminent use of force.”

After the jury had begun its deliberations it indicated to the court that it had a question, and in open court the foreman asked the court the following:

“Well, we had a qúestíon regarding "the incident" itself: Now if the defendant was "believed to be a párt of the actual incident would he in fact then be considered as committing the act himself? In other words, he had to personally commit the crime? Is it necessary for the prosecution to prove that the defendant actually fired the shot?”

The court heard the arguments of both counsel out of the presence of the jury. The State requested an accountability instruction. The defense made no request for additional instructions. The- court then told the jurors that they had heard all of the evidence in the case and. had been instructed on the law, and to retire to the jury room and continue their deliberations. The jury later returned a verdict finding defendant guilty of murder, and sentence was imposed.

I.

We first address the issue of whether the trial court erred in admitting into evidence the statement of the deceased that the defendant shot him. Defendant argues that an objection to the question was made and that the statement is inadmissible as a dying declaration. The record shows that the only objection made was that question was leading. The State responds that the statement of the deceased was admissible as an exception to the hearsay rule as a spontaneous declaration. We need not determine whether the statement comes within the exception. Defendant’s objection was not as to the relevancy of the statement but only to the form of the question. We have examined defendant’s post-trial motion and find no reference to this particular objection. A ground of objection not presented in the trial court will not be considered for the first time on review. People v. Canaday (1971), 49 Ill.2d 416, 275 N.E.2d 356.

II.

Defendant next maintains that the trial court erred in allowing the police officers to testify that they warned him of his constitutional rights at the hospital. He further contends that prejudicial error occurred when the prosecutor introduced before the jury a statement by defendant which the trial court had ruled inadmissible as involuntary.

During the presentation of the State’s case-in-chief, Officer Jannotta testified that he spolce with defendant at Billings Hospital. Defense counsel objected and a hearing was held out of the presence of the jury. During that hearing the prosecution stipulated that the officer would testify that defendant told him he was not at the scene of the crime. Prior to trial, defendant moved for a list of witnesses to any oral statement to which the State filed an answer that defendant had made no statement. Defendant was not given the name of Officer Jannotta as such witness and claimed surprise. The court found that the State’s failure to furnish this information was inadvertent and held a hearing on defendant’s motion to suppress the statement. After hearing testimony from the defendant and Officers Bobko and Jannotta, the court found that the statement of defendant was inadmissible. The court specifically found that although defendant was advised of his constitutional rights, he was not capable — due to the medication he received at the hospital — of understanding and voluntarily waiving his right to remain silent. On cross-examination defendant was asked if he remembered telling Officer Jannotta that he was not at 51st Street and Cottage Grove. The court struck the question and answer and instructed the jury to disregard it. On redirect examination defense counsel questioned defendant concerning the same statement. In rebuttal Officer Jannotta testified that he advised defendant of his constitutional rights at the hospital and had a conversation with him. Officer Bobko testified on rebuttal that he had a conversation with defendant at Billings Hospital on the night in question.

Defendant maintains that prejudicial error resulted because the jury heard that he was warned of his constitutional rights and had a conversation with a police officer. Defendant contends that as a result the jury was free to speculate as to the substance of the conversation. We note that no specific objection to this portion of the officers’ testimony, other than leading, was raised at trial. Moreover, defendant denied having any conversation with police officers at Billings Hospital. The argument was not raised in defendant’s post-trial motion. It has been held that “Where the grounds for a new trial are stated in writing, the accused is limited on review to the errors alleged therein and all other errors are deemed to have been waived.” (People v. Hairston (1970), 46 Ill.2d 348, 367, 263 N.E.2d 840.) Nonetheless, notwithstanding the above facts and the holding in Hairston, we believe defendant’s argument merits discussion.

Defendant relies on People v. Mwathery (1968), 103 Ill.App.2d 114, 243 N.E.2d 429, and People v. Dukes (1957), 12 Ill.2d 334, 146 N.E.2d 14. Although factually not on point, those cases stand for the general principle that regardless of the innocent or culpable motives of the prosecutor, prejudicial error results from conduct and argument the cumulative effect of which is to inflame the passion and arouse the prejudice of the jury against the defendant, without aiding the jury in weighing or evaluating the evidence. In the instant case, regardless of the prosecutor’s obvious purpose to impeach the credibility of defendant, we must determine whether the effect of such testimony was to arouse the prejudice of the jury against the defendant. Defendant argues that the jury could have speculated that he either made no statement or admitted participation in the crime. Nevertheless, they could also have speculated that defendant and the officers conversed concerning facts to which defendant testified as being his theory of the case. But speculation is not the test. The test is whether the substance of the testimony aroused the prejudice of the jury against the defendant. The testimony consisted only of a statement that a conversation was had and rights given, but did not include any conversation. We conclude that such testimony is not inflammatory and did not arouse the prejudice of the jury.

Defendant next argues that prejudicial error resulted in the introduction before the jury of a statement by defendant which the trial court had previously ruled involuntary and inadmissible. Defendant maintains that the State accomplished by indirection what it could not have done directly. In support he cites People v. Maggio (1927), 324 Ill. 516, 155 N.E. 373; People v. Adams (1953), 1 Ill.2d 446, 115 N.E.2d 774; and People v. Pughsley (1966), 73 Ill.App.2d 442, 220 N.E.2d 89.

In People v. Lefler (1967), 38 Ill.2d 216, 220, 230 N.E.2d 827, the supreme court held that “the voluntary character of any out-of-court statement must first be established before the statement may be used, even for impeachment purposes.” And in People v. Roy (1971), 49 Ill.2d 113, 273 N.E.2d 363, the supreme court aga'n held that the admissibility of any statements, incriminating or exculpatory, are governed by the rules set forth in Miranda v. Arizona (1966), 384 U.S. 436. In the case before us, the State admits in its brief that the use of the statement for purposes of impeachment was improper. However, the State maintains that the striking of the question and answer and instruction to the juiy to disregard the same cured any error. Upon examination of the cases cited by defendant, we note that there the statements were either written confessions or highly incriminating statements. In Pughsley, supra, we held that the trial court’s instruction to the jury to disregard certain rebuttal testimony for the State was not sufficient to cure the error. The State was allowed to impeach the defendant by the rebuttal testimony of an officer as to a statement the defendant made to him at the time of arrest. On cross-examination the defendant was asked if he remembered telling the officer that he crawled through the screen which he broke. Defendant denied the statement and the court permitted the officer to testify thereto.

In the instant case, unlike Pughsley, the statement was purely exclupa-tory. In Pughsley, reference was made to the statement before the jury, twice by the prosecution and once by the judge. Here, one isolated reference was made to the substance of the conversation, and after the instruction no further reference was made to it. Considering the nature of the statement, the lack of attention drawn to it, and the prompt instruction of the court, we hold that the instruction was adequate to remove any error or prejudice in its admission. See People v. Phillips (1970), 126 Ill.App.2d 179, 188, 261 N.E.2d 469.

III.

Defendant next maintains that he was not proved guilty beyond a reasonable doubt. He first argues that the inadequacies, omissions and discrepancies in the testimony of the identification witness lead to the conclusion that there was no independent basis for the identification. He relies upon People v. Cullotta (1965), 32 Ill.2d 502, 504, 20 N.E.2d 444, and People v. Betts (1968), 101 Ill.App.2d 322, 326, 243 N.E.2d 282, which held that “a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful, and uncertain.’ ” We have held, however, that the testimony of a single witness, if it is positive and the witness is credible, is sufficient for a conviction even though the testimony is contradicted. (People v. Cooper (1972), 9 Ill.App.3d 291, 292 N.E.2d 79.) Furthermore, precise accuracy in describing facial characteristics and wearing apparel is unnecessary where an identification is positive. (People v. Bell (1974), 18 Ill.App.3d 130, 309 N.E.2d 344 (abstract opinion); People v. Winfrey (1973), 11 Ill.App.3d 164, 168, 298 N.E.2d 413.) In the instant case Blake positively identified defendant as the assailant with the weapon. He described defendant’s tooth deformity and his clothing to the officer who appeared at the scene. Defendant’s argument that the witness’s identification of him at the coroner’s inquest was suggestive is without merit. There is no evidence that this identification was suggestive. Furthermore, it has been held that a prior independent origin of a witness’s identification can furnish protection against an allegedly subsequent suggestive identification. People v. Mays (1971), 48 Ill.2d 164, 269 N.E.2d 281; People v. Tolefree (1973), 14 Ill.App.3d 754, 303 N.E. 2d 555.

IV.

Defendant’s final argument is that the instructions given were not adequate to answer the question of the jury after deliberations had commenced. It appears, however, that the precise question to be answered is whether the jury could have found the defendant guilty with the instructions given. Defendant contends that the jury should have been given an accountability instruction, and argues that without such instruction they could not have found the defendant guilty of felony-murder.

We disagree.

In People v. Brothers (1932), 347 Ill. 530, 180 N.E. 442, the defendant allegedly shot the deceased in an underground passageway and fled. No one saw the defendant fire the shot, but witnesses testified to seeing him flee. An instruction on aiding and abetting was given. The supreme court stated at page 539:

“While the record contains some evidence tending to show that one or two persons were with the actual assailant just before the killing and rushed up the stairs with him immediately thereafter, still, it is apparent that the prosecution was based upon the theory that defendant was the actual assailant and not an accomplice. Under the circumstances there was really no substantial basis for giving these two instructions.”

In People v. Danner (1969), 105 Ill.App.2d 126, 130, 245 N.E.2d 106, it was held: “If the evidence establishes that defendant was attempting to commit a forcible felony and the victim’s death was a result of that attempt, it is immaterial who fired the particular shot which killed the victim or whether the killing was intentional or accidental.” Therefore, any speculation by the jury in the instant case could have only favored the defendant. The cases cited by defendant are not on point. In People v. Harmon (1968), 104 Ill.App.2d 294, 297, 244 N.E.2d 358, the court found error in the trial court’s failure to instruct the jury as to the law applicable to tire accidental discharge of a weapon resulting in the death of a third person where there were sufficient facts in the record to cause the jury to consider that factual question. In People v. Davis (1966), 74 Ill.App.2d 450, 221 N.E.2d 63, the court held that the trial court should have given, sua sponte, proper instructions to the jury. In that case the defendant was found guilty of attempted robbery. The jury was instructed only as to attempt and no instruction was given defining the elements of the offense of robbery. In the instant case, the defendant did not request an additional instruction when the jury presented its question to the court. Any speculation by the jury as to who fired the shot could only have favored defendant. The failure of the court to instruct the jury on accountability resulted in no prejudice to the defendant.

For the reasons stated above, the judgment is affirmed.

Affirmed.

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


author: Mr. PRESIDING JUSTICE McNAMARA.

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Charles Robinson et al., Defendants-Appellees.
    (No. 57981;
    First District (3rd Division)
    November 7, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, John M. Cutrone, and Ricky L. Petrone, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (James N. Gramenos, Assistant Public Defender, of counsel), for appellees.
   Opinion by

Mr. PRESIDING JUSTICE McNAMARA.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond Scott et al., Defendants-Appellants.
    (No. 58206;
    First District (3rd Division)
    November 7, 1974.

      James J. Doherty, Public Defender, of Chicago (Leonard V. Soloman, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Thomas A. Mauet, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE MEJDA

delivered the opinion of the court:

After a jury trial, defendants Raymond Scott and Frank Watson were found guilty on six counts — two of armed robbery, two of attempted murder, and two of aggravated battery. Sentences were imposed on each count, to run concurrently. Defendants filed separate appeals. Three contentions are urged on appeal by each defendant which are similar and consolidated for consideration:

(1) The photographic identifications were so highly suggestive and conducive to irreparable mistaken identification as to deny due process of law.

(2) There was no independent basis for the in-court identification.

(3) The evidence was insufficient to establish guilt beyond a reasonable doubt.

Defendant Watson raises four additional contentions:

(4) The photographic identification of Watson was improper in utilizing a procedure less reliable than available corporeal procedure in which Watson would be entitled to representation by counsel.

(5) The trial court erred in failing to limit an instruction as to circumstantial evidence to defendant Scott.

(6) The closing arguments of the prosecutor were improper and solely to arouse sympathy of the jury.

(7) The conviction and sentencing for six separate offenses which arose out of the same transaction are improper.

In his brief to this court, defendant Scott has listed nine additional errors for reversal but has set forth argument only as to the first three contentions above enumerated. Supreme Court Rules 612(j) and 341(e)(7) apply and provide that points not argued are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing. (Ill. Rev. Stat. 1973, ch. 110A,pars. 612(j) and 341(e)(7).) Accordingly, except as to the seventh contention above set forth, which we determine as plain error affecting substantial rights under Supreme Court Rule 615(a), the additional errors listed by defendant Scott without argument are deemed waived and will not be considered by this court. The pertinent facts follow.

At approximately 6:30 P.M., on April 6, 1970, four young male Negroes entered the E & L Tap, located at 48th Court and 29th Avenue in Cicero, Illinois. Soon after entering, one of them jumped onto the bar, brandished a shotgun, and announced a “stick-up” to the 10 or 15 patrons. The other three offenders, all armed with handguns, then positioned themselves at the front, middle and rear of the tavern. The one with the shotgun jumped down behind the bar and tried to open the electric cash register. The bartender, Ronald Pluth, informed him that it would not open because. it was not plugged into the outlet. Pluth then walked over and plugged it in, and after watching the offender remove the contents, turned to walk back to his original position. At this point, a shot was fired in the rear of the tavern, and the offender with the shotgun immediately fired at Pluth, striking him in the right buttock. More shots were fired as the patrons scattered and fell to the floor for protection. The four offenders fired shots at the patrons on the floor as they ran out of the tavern. They entered a 1963 Ford sedan and drove down the street a distance of 50 feet. They then abandoned the vehicle, ran down the alley, and drove away in another automobile. In addition to Pluth’s injury, gunshot wounds were received by Lorraine Kaczmarek, the owner of the tavern, and two patrons, Daniel Lapinski and Dale Mertes. Defendants Scott and Watson were subsequently indicted and brought to trial;

Dianne Kaczmarek testified for the prosecution. She was standing at the rear of the tavern talking with her mother, Lorraine Kaczmarek, when the four men entered. The interior was lighted and it was still light outside. The four offenders were in the tavern an estimated 10 minutes. Defendant Scott was identified by her in court as the one who positioned himself at the rear of the tavern next to her and her mother. It was Scott who had shot her mother. She identified Watson as the one who stationed himself in the middle of the tavern about 6% feet from where she was standing. During the holdup he shoved patron Frank Wausak against a door and frisked him. On April 7, 1970, the witness identified defendant Watsons photograph from a group of 20 pictures of male Negroes of varying ages shown to her by the police at her mother’s home. Some were of old men. She never gave the police a description of any of the offenders but merely picked out defendant Watson’s photograph. She viewed them in her mother’s bedroom after they had been shown to her mother.

Lorraine Kaczmarek, owner of the tavern, testified. She was standing at the rear of the tavern talking to her daughter when the four men entered. The interior was lighted and she was able to see the people without any difficulty. She identified defendant Scott in court as the one who positioned himself about 5 feet from where she and her daughter wére standing. She identified Watson in court as the one who stood directly behind Scott and nearer to the center of the bar, some 10 to 15 feet away from her. The four offenders were inside the tavern for an estimated 10 minutes before any shots were fired. During this time Scott was standing face to face with her, and she concentrated on his face and Watson’s. After the one with the shotgun began scooping the money out of the register she became very nervous and her knees buckled causing her to fall back onto some beer cases. Defendant Scott said to her, ‘Where are you going, bitch?” He fired a shot over her shoulder, then fired again, striking her in the left hip. More shots were fired and the four offenders ran from the tavern. She never gave the police a description of the four men. After her release from the hospital, two police officers came to her home and showed her a group of loose photographs. She picked one of defendant Scott. Her daughter Dianne was not in the bedroom when she viewed the photographs but came in afterwards, and Lorraine was present when Dianne viewed the same photographs.

Albert Klucina, a Cicero Police Department patrolman, testified. He was the investigating officer on April 6, 1970, and arrived at the tavern about 6:30 P.M. The shotgun used in the robbery was recovered inside, but had no fingerprints on it. The 1963 Ford sedan initially used to flee the scene was recovered about 50 feet from the tavern. In the glove compartment he found a bill of sale and a repair bill in the name of defendant Scott. It was later established that the vehicle was registered in the name of Scott. The automobile was wired to operate with or without an ignition key. A check disclosed that no theft report of the vehicle had been made. The officer did not received a description of the offenders from any of the wounded patrons, but descriptions given by the uninjured patrons were taken- by other officers and later relayed to him. He ordered photographs from the Chicago Police Department within 2 or 3 hours after the robbery and specifically asked for a photograph of Raymond Scott. After Lorraine Kaczmarek was released from the hospital Klucina and another officer went to her home and showed her the photographs. Although Dianne Kaczmarek was in the house at the time, she was not in the same room. She later went into the room and viewed the same photographs while her mother was present.

Ronald" Pluth, the bartender, testified. The lighting conditions in the tavern were adequate and he could see without difficulty. He identified' defendants Scott and Watson in court as two of the four who had robbed the tavern: The closest he came to defendant Watson during the robbery was 5 or 6 feet. After he plugged in the cash register and watched the man with the shotgun remove the contents, he turned and walked away. A shot was heard and he was then shot in the buttocks by the offender with- the shotgun: A colostomy, was required, ’but this condition was corrected by further surgery. He never gave the police a description of the offenders, but 3 or 4 weeks after the robbery, following his release from the hospital, he viewed a series of photographs brought to his home by the police. He picked out photographs of defendants Scott and Watson. The police did not inform him that the Kaczmareks had previously identified their photographs. He made his in-court identification of the two defendants on the basis of their facial features.

The record is silent as to whether defendant Watson was in custody at” the time Pluth identified his photograph, but does establish that defendant Scott was not then in custody.

Four other patrons who were in the tavern during the robbery testified, but could not identify either of the defendants. Two persons who were Walking down the street and observed the four offenders running from the tavern also testified, but could not identify either of the defendants.

Defendant Scott testified in his own behalf. He was the owner of the 1963 Ford sedan recovered at the scene of the robbery, but it had been stolen from in front of h:s home about 3 days prior to April 6, 1970. He did not work on April 6, and in the afternoon drove his father’s 1966 Pontiac to Melvin Rainey’s home at 106th and State Streets, Chicago. From there he and Rainey drove to Dennis Gregory’s home at 133rd and Blue Island Streets in Blue Island. Both Rainey and Gregory were his friends and co-workers. They played cards and talked at Gregory’s home until 8 P.M., during which time Gregory’s wife and children came home. He did not surrender to police until 1 month and 3 weeks after he learned he was being sought in connection with the robbery.

• Melvin Rainey and Dennis Gregory testified to substantially the same facts as defendant Scott. However, Rainey was uncertain as to the month ánd year he and Gregory had played cards with Scott in the Gregory home, but he thought it was the second or third Monday in April 1970.

• Defendant Watson also testified in his own behalf. He missed his ride to work on April 6, 1970, and returned to his mother’s home where he Was then living. He arrived there about 3 P.M. and stayed the rest of the day. His mother, Guinevere Watson, returned home from work at about 5:30 P.M., and around 7 P.M., he admitted Arvesta Greer, a family friend, into the apartment. He testified that before April 6, 1970, he had hot known defendant Scott.

Guinevere Watson testified. She returned home from work on April 6, 1970 at 5:25 P.M:, and found her two sons, Frank and Jerry, and her niece and grandson in the apartment. At about 7 P.M., Arvesta Greer came over. He was a family friend who also repaired appliances and he was returning a phonograph amplifier he had repaired. Greer stayed about ah hour and a half. Her son Frank did not leave the apartment until after Greer left.

Arvesta Greer testified. He arrived at the apartment at 7 P.M., on April 6, 1970, and was admitted to the apartment by defendant Frank Watson. He had gone there to return an amplifier he had repaired. He knows defendant Watson very well and could not have confused him with his brother Jerry.

Prior to trial, all reference to lineup identifications of the defendants was suppressed. At trial, an order was entered upon the prosecution to produce the group of photographs viewed by Dianne Kaczmarek, Lorraine Kaczmarek and Ronald Pluth. They were not produced and the record is silent as to any reason for the noncompliance.

The jury found each of the defendants guilty of the following offenses: armed robbery of Lorraine Kaczmarek, armed robbery of Ronald Pluth, attempted murder of Lorraine Kaczmarek, attempted murder of Ronald Pluth, aggravated battery of Daniel Lapinski, and aggravated battery of Dale Mertes. Six sentences were imposed on each defendant for a term of years to be served concurrently as follows: Defendant Raymond Scott, two armed robberies 15 to 20 years each; two attempted murders 10 to 20 years each; and two aggravated batteries 5 to 10 years each. Defendant Frank Watson, two armed robberies 10 to 20 years each; two attempted murders 8 to 15 years each; and two aggravated batteries 3 to 9 years each. We now proceed to consider defendants’ contentions on appeal.

I.

Defendants first contend that the photographic identification by Dianne and Lorraine Kaczmarek and Ronald Pluth was the result of impermissibly suggestive procedures, and that because of such procedures they were denied due process of law. It is unnecessary to consider this contention inasmuch as we determine that the record in the instant case clearly establishes that the in-court identification by the three witnesses originated from a source independent of the photographic identification in question.

If pretrial identification procedures are conducted in a suggestive manner conducive to mistaken identification, the question of whether a defendant was denied due process in violation of his constitutional right depends upon the totality of the circumstances. However, where a witness had an adequate opportunity to observe, and there is little likelihood that the pretrial procedures led to a mistaken identification, a conviction based upon a subsequent in-court identification will not be set aside. Simmons v. United States (1968), 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967; People v. Black (1972), 52 Ill.2d 544, 288 N.E.2d 376; People v. Fox (1971), 48 Ill.2d 239, 269 N.E.2d 720.

II.

Defendants next contend that there was no independent basis for the in-court identification. Here, all three witnesses who made in-court identification of the defendants testified that the lighting conditions inside the tavern were such that each was able to see without any difficulty. Two of the witnesses estimated that the four offenders were in the tavern for approximately 10 minutes. Dianne Kaczmarek identified defendant Scott as the one who stood closest to her and her mother, and defendant Watson as the one who stood about 6% feet away. She recalled observing defendant Watson frisk one of the patrons, and stated that it was defendant Scott who shot her mother. Lorraine Kaczmarek identified defendant Scott as the offender who stood about 5 feet from her, and defendant Watson as the one who had stood 10 to 15 feet away. She testified that she was face to face with defendant Scott during the robbery and that during that period she concentrated on the defendants’ faces. She further testified that it was defendant Scott who had shot her in the hip. Ronald Pluth identified both defendants as members of the group which had robbed the tavern. He estimated that the closest he came to defendant Watson was 5 to 6 feet. He stated that he made his in-court identification of the defendants upon the basis of their facial features.

The record thus reveals the adequate lighting conditions inside the tavern, the close proximity of the offenders to the identifying witnesses, the substantial time in which the offenders remained inside the premises, and that they made no attempt to conceal their faces. These considerations well support the conclusion that the identifying witnesses had more than ample opportunity to observe the defendants. It is indeed unlikely that the photographic identification procedures used could have resulted in mistaken identification by the three witnesses. Moreover, the record affords no basis for such an assertion. All three witnesses testified that they never gave the police a description of any of the offenders and that the police in no way attempted to single out any individual’s picture at the viewing of the photographs. Ronald Pluth testified that at the time he viewed the photographs the police did not inform him that the ■Kaczmareks had identified the defendants’ pictures.

The defendants argue that three factors of record evidence the highly suggestive nature of the photographic identification procedures used. First, that Dianne Kaczmarek viewed the photographs in her mother’s presence shortly after her mother had seen them. Second, that Dianne Kaczmarek testified that some of the photographs were of older men when the only description the police had was that the offenders were young men. Third, that the State' failed to comply with a court order to produce the photographs exhibited to the witnesses. The first and second factors argued by defendants do not either singularly or collectively indicate any attempt by the police to influence the identification process. The third factor — the nonproduction at trial of the photographs —does not impart any implication that the procedures used were im-permissibly suggestive. The record contains no explanation for the non-production. Further, upon failure to comply with the production order, the defendants’ proper recourse would have been to object to any testimony concerning the photographic identifications until compliance was made or noncompliance sufficiently explained. The defendants failed to do this. We hold that the record adequately demonstrates that the in-court identifications of the defendants were of an independent origin and untainted by any improper photographic identification procedures.

III.

The defendants next contend that there was insufficient evidence to establish their guilt beyond a reasonable doubt in that the identification testimony at trial was weak, vague and uncertain and the result of improperly suggestive police procedures, while the defendants’ alibi defenses remained unimpeached. As we have previously held, the in-court identifications of the defendants were of independent origin and therefore properly put before the jury. While the defendants correctly point out that only three of the nine occurrence witnesses presented by the State could identify the defendants, the testimony of only one witness, if positive and credible, is sufficient to convict, even though it is contradicted by the accused. (People v. Novotny (1968), 41 Ill.2d 401, 244 N.E.2d 182.) Although each defendant offered evidence in alibi which was not contradicted at trial, upon final analysis, the issue became one of the witnesses’ credibility which was for the jury to decide. And where, as here, that determination was not so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of a defendant’s guilt, the verdict will not be disturbed on appeal. People v. Donald (1963), 29 Ill.2d 283, 194 N.E.2d 227.

IV.

Defendant Watson next contends that the photographic identification of him by Ronald Pluth 3 to 4 weeks after the robbery, and after the defendant was available for a lineup identification, was improper because thereby a clearly inferior identification procedure was utilized when compared to the more reliable corporeal procedure in which the defendant would have been entitled to be represented by counsel. This contention is without merit. First, there is no evidence of record that at the time the photographs were exhibited to Ronald Pluth, defendant Watson was in custody or otherwise available for a lineup. Second, even if the defendant was in custody at the time, the employment of photographic identification procedures for the identification of one already in custody is not improper. (People v. Brown (1972), 52 Ill.2d 94, 285 N.E.2d 1.) Third, an accused who is already in custody is not entitled to have an attorney present at photographic identification exhibitions. (People v. Holiday (1970), 47 Ill.2d 300, 265 N.E.2d 634.) The defendant’s citation of United States v. Zeiler (3rd Cir. 1970), 427 F.2d 1305, where it was held that one in custody is entitled to have counsel present at photographic identification sessions, is not persuasive nor controlling. The decision in that case is in direct conflict with the holding of the Illinois Supreme Court in the Holiday case which we follow.

V.

Defendant Watson further contends that the trial court erred in not limiting a jury instruction on circumstantial evidence to defendant Scott only. It is argued that the circumstantial evidence introduced at trial related only to defendant Scott, and that the trial court, in not limiting the instruction to defendant Scott alone, could have confused the jury and directed their attention away from the identification testimony which was the only evidence connecting Watson to the robbery. The instruction in question which was tendered by the State and given over defendant Watson’s objection is IPI — Criminal No. 3.02B, and read as follows:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts, which tend to show the guilt or innocence of a defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”

Conceding arguendo that the trial court erred in not limiting this instruction, we do not conclude that defendant was thereby so prejudiced in any manner as to affect the outcome of the trial. The giving of an instruction on circumstantial evidence is not reversible error where a defendant is proved guilty beyond a reasonable doubt, even though the record contains no circumstantial evidence. (People v. Matthews (1934), 359 Ill. 171, 194 N.E. 220; People v. Fiereto (1922), 303 Ill. 186, 135 N.E. 417.) In the instant case, defendant Watson was proved guilty beyond reasonable doubt by overwhelming evidence, and any error in not limiting the instruction was harmless error.

VI.

It is also contended by defendant Watson that certain portions of the prosecutor’s closing argument were designed solely to arouse the sympathy of the jury with respect to Ronald Pluth’s injury, and resulted in prejudice to defendant. In his closing argument the assistant State’s Attorney told the jury that the gratitude shown to Pluth for his help in opening the cash register was to have his rectum shot out, forcing him to endure 2 years of agony in and out of hospitals. Additionally, the jury was told that it was necessary to perform a colostomy to save Pluth’s life. Again, we need not reach the merits of defendant’s contention, for the record reveals that the defendant made no objection at trial to any of these statements. Failure to object to improper closing argument waives for purposes of appeal any error contained therein. People v. Sinclair (1963), 27 Ill.2d 505, 190 N.E.2d 298.

VII.

Defendant Watson finally contends that it was improper for the trial court to convict and sentence him on six separate counts of attempted murder, armed robbery, and aggravated battery, in that all of the offenses arose out of the same transaction. Defendant Watson argues that since all the offenses occurred at the same time and place, and as the force employed in effecting the armed robbery was the same force which formed the basis of the other offenses, the defendant should have been convicted and sentenced for only one count of armed robbery. We have previously determined that this issue will also be considered as to defendant Scott.

Section 1 — 7(m) of the Criminal Code of 1961 provides that concurrent or consecutive sentences may be imposed where two or more offenses did not result from the same conduct. (Ill. Rev. Stat. 1969, ch. 38, par. 1 — 7(m).) “Conduct” is defined as an act or a series of acts and the accompanying mental state. (Ill. Rev. Stat. 1969, ch. 38, par. 2 — 4.) When different offenses are included in the same act, only one sentence may be imposed; however, such limitation does not apply where more than one offense arises from a series of closely related acts and the crimes are clearly distinct and require different elements of proof. People v. Johnson (1970), 44 Ill.2d 463, 475, 256 N.E.2d 343.

Defendants were convicted and sentenced on two separate counts of armed robbery, one of the bartender, Ronald Pluth, and one of the owner, Lorraine Kaczmarek. A person commits armed robbery when he takes property from the person or presence of another by the use of force or threatening the imminent use of force while armed with a dangerous weapon. (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2(a).) The ownership of the property taken is unimportant; its possession by the victim is adequate for the purpose of establishing the crime. (People v. Steen- bergen (1964), 31 Ill.2d 615, 619, 203 N.E.2d 404; People v. Skinner (1968), 103 Ill.App.2d 201, 243 N.E.2d 509; People v. Wooley (1970), 127 Ill.App.2d 249, 262 N.E.2d 237.) Here, the property taken was limited to the money removed from the register. Both Ronald Pluth and Lorraine Kaczmarek were present in the tavern and were threatened with force and with a gun. The ownership of the money was in Lorraine Kaczmarek as owner of the tavern, and the care, custody and control was in Ronald Pluth as bartender. The facts clearly demonstrate each defendant’s guilt as to both charges. Each defendant was convicted and sentenced on two separate charges of armed robbery for the single act or transaction. Two punishments cannot be imposed for a single act even though different ingredients are involved in the two cases. (People v. Duszkewycz (1963), 27 Ill.2d 257, 261, 189 N.E.2d 299.) Therefore, the convictions and sentences of each defendant as to the armed robbery of Ronald Pluth are reversed, and affirmed as to the armed robbery of Lorraine Kaczmarek.

We now further consider the argument that the convictions and sentences for all but the one armed robbery must be reversed. Each defendant was additionally convicted and sentenced on separate counts of attempted murder of Lorraine Kaczmarek and also of Ronald Pluth, for aggravated battery to Dale Mertes and for aggravated battery to Daniel Lapinski. Our statement in People v. Ashford (1974), 17 Ill.App.3d 592, 597, 308 N.E.2d 271, 275, is appropriate herein:

‘When different offenses are included in the same act, only one sentence may be imposed. The use of force or the threat of the imminent use of force is an essential element in the crimes of robbery and attempt robbery. (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 1(a).) It is the element that differentiates robbery from theft. If a battery takes place in the course of a robbery the question arises whether this use of force was part of the robbery or separate from it. Often, the distinction is not easily made. If the battery immediately precedes the robbery it is normally held to be a component of the robbery (e.g. People v. Randolph (1972), 4 Ill.App.3d 277, 280 N.E.2d 774); if it follows the robbery it is usually regarded as a separate offense, e.g. People v. Baker (1969), 114 Ill.App.2d 450, 252 N.E.2d 693.”

Lorraine Kaczmarek was shot by defendant Scott while the offender with the shotgun began scooping the money out of the register. The shooting, which constituted the attempted murder on Lorraine Kaczmarek, was the use of force to effectuate tire armed robbery. The two offenses were a part of the same transaction and inseparable. Neither was completed before the other. Accordingly, the conviction and sentence of each defendant as to the attempted murder of Lorraine Kaczmarek must be vacated because it arose from the conduct comprising the offense of armed robbery. However, the armed robbery was completed when the offender with the shotgun had removed the contents from the cash register and Ronald Pluth had walked away. It was only thereafter that the offender with the shotgun shot Ronald Pluth and that the offenders shot Daniel Lapinski and Dale Mertes which are the acts constituting the new and distinct offenses of attempted murder and aggravated battery. These were distinct and separate acts from the already completed armed robbery. (People v. Thompson (1972), 3 Ill.App.3d 684, 278 N.E. 2d 1; People v. Toliver (1971), 133 Ill.App.2d 266, 273 N.E.2d 274.) Each was a separate offense against different victims. The trial court properly convicted defendants of the separate offenses of attempted murder of Ronald Pluth, aggravated battery of Daniel Lapinski and aggravated battery of Dale Mertes, and imposed separate sentences to be served concurrently.

However, we notice that aggravated battery has been amended since the imposition of sentences herein and is now a Class 3 felony. (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4(d).) The Unified Code of Corrections provides that the minimum sentence for a Class 3 felony shall not be greater than one-third of the maximum term. (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1(c)(4).) Section 8 — 2—4 of said Code further provides that if prosecution has not reached a final adjudication the Code shall apply as to sentences if less than under the prior law upon which prosecution was commenced. (Ill. Rev. Stat. 1973, ch. 38, par. 1008— 2 — 4.) In the instant case, no final adjudication has been reached. (People v. Reno (1974), 17 Ill.App.3d 348, 308 N.E.2d 3.) We conclude that the two sentences imposed on defendant Scott for aggravated battery for terms of not less than 5 years nor more than 10 must be modified, and the two sentences are each modified by this court for terms of not less than 3 years and 4 months nor more than 10 years.

For the foregoing reasons, the judgments of conviction and sentence of both defendants for the armed robbery of Ronald Pluth and for the attempted murder of Lorraine Kaczmarek are reversed; the two sentences imposed on defendant Scott for aggravated battery are modified; as modified, the convictions and concurrent sentences as to each defendant for the armed robbery of Lorraine Kaczmarek, for the attempted murder of Ronald Pluth, and for the two aggravated batteries are affirmed.

Affirmed in part; reversed in part; modified in part.

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


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nate P. Passaro, Defendant-Appellant.
    (No. 58423;
    First District (3rd Division)
    November 7, 1974.
    Edward M. Genson, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Barry Rand Elden, and Jane Bularzik, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. JUSTICE DEMPSEY

text:
    Marvin H. Scheffki, Plaintiff-Appellant, v. The Board of Fire and Police Commissioners of the City of Calumet City, Defendant-Appellee.
    (No. 58475;
    First District (3rd Division)
    November 7, 1974.

      Louis V. Kiefor, of Calumet City, for appellant.
    John S. Wrona, of Calumet City, for appellee.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The plaintiff, Marvin Scheffki, appeals from an order of the Circuit Court which denied his request for a declaratory judgment and an injunction against the defendant, Board of Fire and Police Commissioners of Calumet City.

A board rule and the statute which it implements both prescribe that seniority in service must be considered as a factor in determining the eligibility for promotion of policemen and firemen. The sole issue for our consideration is whether the board correctly interpreted and applied its rule by a decision to deny credit for periods of earlier service when an employee has voluntarily interrupted his employment.

The regulation over which this controversy arose was promulgated pursuant to the authority granted by the Act governing boards of police and fire commissioners which provides:

“The board, by its rules, shall provide for promotion in the fire and police departments on the basis of ascertained merit and seniority in service and examination, and shall provide in all cases, where it is practicable, that vacancies shall be filled by promotion.” (Ill. Rev. Stat. 1967, ch. 24, par. 10 — 2.1—15.)

The statute does not further define the term “seniority in service,” nor does the rule adopted by the board. Section 7, chapter III — D of the board’s published Rules and Regulations states:

“The Commission shall provide for promotion in the fire and police services on the basis of ascertained merit and seniority in service and examination, and shall provide in all cases where it is practicable that vacancies shall be filled by promotion. All examination for promotion shall be competitive among such members, who have completed their 6 months probation period, of the next lower rank as desire to submit, themselves to such examination, and all promotions shall be made from the three having the highest rating.” "•

The rule further provides that promotion ratings will be based on an 80-point scale. A maximum of 70 points may be earned from the written examination, while 1 point per year, to a limit of 10, is awarded for seniority.

There is no transcript of the circuit court proceeding and the parties have stipulated to the foHowing facts: On May 16, 1960, Scheffki was appointed a patrolman in the Calumet City Police Department. He voluntarily resigned from that position on August 1, 1965. Two years later, on October 1, 1967, after qualifying anew as for an original appointment, he was reappointed to the position of patrolman. In September 1968, the City credited him with the period of his earlier service in order to qualify him for longevity pay. In June 1969, he took the competitive examination for promotion to the rank of sergeant. Based upon his test score and seniority, he was placed in fourth position on the police department’s eligibility list — one place short of the position required to be in line for the next available vacancy. In computing his seniority the board refused to take into account his prior period of service from 1960 to 1965. Had it done so, his revised score would have placed him third on the eligibility list and thus qualified him for future appointment as a sergeant.

Scheffki brought this suit in September 1969. He sought a judgment declaring that the board could not disregard his earlier period of service in ascertaining his seniority, and an injunction to forbid the promotion of any person on the eligibility list until his rights were determined. In denying the requested relief, the court entered a written order declaring that seniority is predicated on continuous service as a policeman and any voluntary interruption of such service divests a policeman of the right to claim seniority for such service; that if a former policeman is subsequently reappointed in the same department, he wiU begin to accrue seniority only after completing his new period of probation.

There is general agreement that reviewing courts should accord substantial discretion to administrative agencies in the construction and application of their rules, interfering only if a body’s interpretation is plainly erroneous or inconsistent with long-settled constructions. (2 Am.Jur.2d Administrative Law §§ 241, 242, 243 (1962); Josam Manufacturing Co. v. State Board of Health (1965), 26 Wis.2d 587, 133 N.W.2d 301.) The doctrine does not invite arbitrariness or inconsistency from case to case, because an interpretation, like its parent statute and rule, binds the agency as its policy and must be foffowed. (Margolin v. Public Mutual Fire Insurance Co. (1972), 4 Ill.App.3d 661, 281 N.E.2d 728; United States v. Leichtfuss (N.D. Ill. 1971), 331 F. Supp. 723; Sawyer v. Central Louisiana Electric Co. (La. App. 1961), 136 So.2d 153.) After judicial review1, the agency'wiU be bound to follow a construction ratified or substituted by the court (Annot, 79 A.L.R.2d 1126 (1961); In re Dreshers Claim (1955), 286 App.Div. 591, 146 N.Y.S.2d 428), at least until the proper amendment of the underlying rule. Margolin v. Public Mutual Fire Insurance Co.

Scheffki’s argument begins with the assertion that the rule as interpreted goes beyond the power delegated to the board by its enabling legislation. It is a difficult position to support, since no conflict appears between the literal language of the rule and that of the statute. Both employ the same term, “seniority in service,” and each adds nothing further by way of definition. Nevertheless, the argument is made that if the legislature had intended for the board to restrict seniority credit only to continuous employment, the statute would contain the phrase “continuous seniority in service.” This interpretation rests on two decisions, Hess v. Board of Trustees (1913), 188 Ill.App. 8, and People ex rel. McGraham v. Armstrong (1915), 196 Ill.App. 199. It was held in those cases that statutes conditioning eligibility for police pensions on service to the department for a specified number of years did not require continuous service. But no reference to seniority appears in either case, and the provisions construed do not compare easily to the one with which we are concerned. When the legislature drafted the pension prerequisites and the courts adjudicated their meaning, they were balancing only the interests of the pension funds of governmental units against those of prospective pensioners. In contrast to that situation, promotional processes entail competition among protected employees, while the board serves as a neutral referee. Section 11 — 2.1—15 is best construed by examination in the context of its own Act. To the extent indicia appear at all, they imply that seniority will be saved only if it is continuous or has been interrupted for certain specified causes, all of which appear to be involuntary. Two examples of privileged separations are induction into military service and leave of absence associated with disability incurred in the line of duty. Ill. Rev. Stat. 1967, ch. 24, pars. 10 — 2.1—23, 10— 2.1 — 24.

At the very least these clues negate any necessary implication that the statute requires accreditation of all service whether continuous or not when ascertaining seniority for purposes of promotion. We thus reject the argument that by basing seniority on continuous service the board exceeded the scope of its authority under the Board of Police and Fire Commissioners Act. It remains only to inquire whether the board’s interpretation and application of its rule was plainly erroneous, arbitrary or inconsistent with the rule itself. We find that it was not.

On the issue of consistency, the board contends that the meaning of “seniority in service” as employed in its rule was clear before its application in Scheffld’s case. In section 6 of chapter III-C of the rules, which deals with the probationary period to be served by new appointees to the force, it is provided that “* * * time served on probation, whether continuous or not, shall be credited upon the period of probation.” The board reasons that if the following section, governing promotions, had been intended to extend seniority rights for promotion to persons with broken service, consistency would require parallel language mandating credit for “seniority in service, whether continuous or not.” Since the rules are a form of law, and provisions of law should not be construed in isolation from one another when meant to cover a subject comprehensively (Pliakos v. Liquor Control Com. (1957), 11 Ill.2d 456, 143 N.E.2d 47), this is a plausible construction. Moreover, since both the statute and the rule employ the same general language, it is doubtful that any reasonable interpretation by the board could be attacked for inconsistency.

As to whether the interpretation and application were reasonable, the plaintiff first advances a novel syllogism: City policemen are subject to burdens of military discipline similar to those borne by soldiers in the Federal armed forces; under Federal statutes and Army Regulations members of the armed forces may total all years of service whether continuous or not to qualify for a number of entitlements, including qualification for retirement and eligibility for promotion; therefore, City policemen should receive credit for all periods of service when computing seniority points in a promotion rating. Ignoring the questionable logic of the proposition, it would be quite beyond our power to incorporate portions of the United States Code and Army Regulations into the Illinois Municipal Code by judicial fiat.

Scheffki further supports his argument of unreasonableness by comparing the board’s decision to that of the elected officials of Calumet City, who in 1968 credited his prior service and granted him longevity pay. He contends that the City’s construction of seriority to include all service, whether continuous or not, should control the board’s own definition.

The City’s determination to grant longevity pay is not properly analogized to the question before us. The distinction between the noncontinuous service recognized for longevity purposes and the continuous service required for promotional purposes is meaningful. The latter may affect other members of the force seeking promotion to the same position; the former does not. The former affects pension funds only; absence of the latter could have an adverse impact on the morale of competitors who have records of unbroken service. For example, patrolmen who joined the department after Scheffki’s departure in 1965 but before his return would find that they had to overcome deficits of perhaps several points because of earlier service credited to a competitor who was unknown to them when they were first employed. Nor should the needs of the Police Department itself be overlooked. The board’s approach supplies an incentive for employees to serve continuously, which in turn facilitates planning and reduces the costs of employee turnover. Also, other things being equal, a man who has acquired experience through continuous service may be of greater value to the department than one who has interrupted his sendee and who may have to substantially relearn his job upon returning to the force. Since seniority points are a form of reward for the knowledge and efficiency which attend experience, it is reasonable that the employee with continuous service should be preferred to the one who has voluntarily interrupted his service.

The board’s interpretation and application of its rule lll-D-7 to require that credit for seniority be based on continuous service were reasonable, and the judgment will be affirmed.

Affirmed.

McNAMARA, P. J., and McGLOON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Elliot Taylor, Defendant-Appellant.
    (No. 58536;
    First District (3rd Division)
    November 7, 1974.

      Paul Bradley, of State Appellate Defender’s Office, of Chicago (Shelvin Singer and Donald R. Brandon, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Jerome Charles Randolph, and John J. Verscaj, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.