text:
    Ben Genaust, Plaintiff-Appellant, v. Illinois Power Company et al., Defendants-Appellees.
    (No. 73-83;
    Fifth District
    November 6, 1974.

      John E. Norton, Professional Corporation, of Belleville (Edward J. Kionka, of counsel), for appellant.
    Carl W. Lee, of Roberts, Gundlach & Lee, of Belleville, for appellee Illinois Power Company.
    Gordon R. Broom, of Burroughs, Simpson & Wilson, of Edwardsville, for appellee Hy-Gain Electronics Corporation.
    Allen D. Churchill, of Dunham, Boman, Leskera & Churchill, of East St. Louis, for appellee Lurtz Electric Company, Inc.
    John F. O’Connell, of O’Connell & Waller, of Belleville, for appellee Rohn Tower Manufacturing Company.
    William B. Wham, of Wham and Wham, of Centralia, for appellee Hubert Plumbing and Heating Company, Inc.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by plaintiff, Ben Genaust, from the dismissal by the circuit court of St. Clair County of five counts (numbered II through VI) of his second amended complaint, in which plaintiff claimed injuries sustained when an electrical current arced from uninsulated power lines of .defendant Illinois Power Company to a metal antenna manufactured by defendant Hy-Gain Electronics Corporation, sold to plaintiff by defendant Lurtz Electric Company, which plaintiff was instaUing on top óf a metal tower manufactured by Rohn Tower Manuracturing Company and sold by defendant Lurtz Electric Company, on the premises of defendant Hubert Plumbing and Heating Co., Inc,

The first count (Count I) of said complaint charged defendant Illinois Power Company with negligence in the location, failure to insulate, and fafiure to warn of dangers from its wires. That count is not involved in this appeal.

The facts, as taken from the pleadings, are that the plaintiff prior to March 3, 1969, entered into an oral contract with defendant Hubert Plumbing and Heating Company in which he agreed to furnish and install an antenna on Hubert’s premises in Belleville, Illinois.

To perform the contract, the plaintiff thereafter purchased a galvanized steel tower and antenna from defendant Lurtz Electric Company of Belleville. The tower was manufactured by defendant Rohn Tower Manufacturing Co. The antenna was manufactured by defendant Hy-Gain Electronics Corporation.

On March 3, 1969, while the plaintiff was installing the tower and antenna on Hubert’s premises, the antenna came close to, but did not touch, certain uninsulated power wires of the defendant Illinois Power Co. The wires “passed close to the building on the premises of Hubert” where the antenna was being installed. An electric current arced from the power lines to the antenna, and the electric current struck the plaintiff, causing him serious injury.

The second count against Illinois Power Company is based upon strict liability in tort for unreasonably dangerous products. The plaintiff alleges that the product sold by this defendant, i.e., electricity, was in an unreasonably dangerous condition in that the wires carrying the electricity were uninsulated and located so close to the ground and adjacent building as to create an unreasonable risk of harm. This count also alleged that said defendant failed to warn the pubfic of the uninsulated condition of the wires and of the danger of electricity arcing from them.

The third count is against defendant Hy-Gain Electronics Corporation. The fourth count is against Rohn Tower Manufacturing Co. The fifth count is directed against the seller Lurtz Electric Company. These three counts are all based upon a strict liability in tort theory. The basis of these claims is that the seller (Lurtz )and the manufacturers (Hy-Gain and Rohn) delivered to the defendant the tower and antenna in an unreasonably dangerous condition in that they failed to have adequate warnings or labels on or accompanying the products or their packaging, informing the plaintiff and others of the dangers of using, installing, or bringing these products in close proximity to power lines, and that these products could cause an electric spark to be arced to them from a power wire if brought within a certain distance from such wire.

Count VI is directed against Hubert Plumbing and Heating Company. This is the party in possession of the premises on which the tower and antenna were being installed at the time of the injury. The plaintiff alleges that Hubert knew or should have known that the Illinois Power Company wires passed in close proximity to the building and that the wires were not properly and sufficiently insulated. The plaintiff also alleges that Hubert was negligent in three instances; failing to warn, ordering the installation in such position as to be dangerously close to the power wires thereby creating an unreasonable risk of harm to the plaintiff, and failing to provide the plaintiff with a safe place to work.

In support of Count II plaintiff relies upon Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182, in which our Supreme Court approved the application of strict liability in tort as set forth in the Restatement of Torts (Second), section 402A, by stating:

“We note that the views herein expressed coincide with the position taken in section 402A of the American Law Institute’s revised Restatement of the Law of Torts approved in May 1964: The section provides:
‘(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if
‘(a) the seller is engaged in the business of selling such a product, and
‘(b) it is expected to reach the user or consumer in the condition in which it is sold.
‘(2) The rule stated in subsection (1) applies although
‘(a) the seller has exercised all possible care in the preparation and sale of his product, and
‘(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller’.” 32 Ill.2d 612, 621, 210 N.E.2d 182,187.

Although the Restatements formulation, as adopted by our supreme court in Suvada, speaks in terms of liability of the “seller” of chattels to “users and consumers,” it has since become apparent that the protection of the doctrine is not limited to users and consumers of the defective product. In fact, tire framers of the Restatement, by way of a caveat appended to section 402A, made it clear that no opinion was expressed on whether, the, rules embodied in that section “tt * e may not apply (1) to harm to persons other tiran users or consumers * ■* Comment o to section 402A concedes that there may be no reason for denying the protection of the doctrine to nonusers and nonconsumers “* * * other than that they do not have the same reasons for expecting such protection as the consumer who buys “ # *” the product, since the doctrine of strict liability resulted from the pressures of consumer advocacy. In recent years the protection afforded by the doctrine of strict Mabff'ity in tort has been extended to persons other than users and consumers, most notably to bystanders, in Illinois (Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1; Mieher v. Brown, 3 Ill.App.3d 802, 278 N.E.2d 869, rev’d on other grounds, 54 Ill.2d 539, 278 M.E.2d 869) and in other jurisdictions (e.g., Jones v. Hutchinson Manufacturing, Inc. (Ky. 1973), 502 S.W.2d 66; Giberson v. Ford Motor Co. (Mo. 1974), 504 S.W.2d 8; Moss v. Polyco, Inc. (Okla. 1974), 522 P.2d 622; Elmore v. American Motors Corp. (1969), 70 Cal.2d 578, 75 Cal. Rptr. 652, 451 P.2d 84; and Howes v. Hansen (1972), 56 Wis.2d 247, 201 N.W.2d 825; Darryl v. Ford Motor Co. (Tex. 1969), 440 S.W.2d 630).

Since Suvada there have been a great number of decisions which have dealt with various problems surrounding the applicability of strict liability in tort. None of these cases, however, have considered at what precise point in time such liability accrues. The vast majority of the cases involving strict liability in tort have concerned finished products which were sold, leased or in which possession was otherwise transferred at the normal termination of the manufacturer’s marketing scheme. On the other hand, a few cases have considered injuries that have occurred prior to a “sale” or transfer of possession and still held the manufacturer accountable under the theory of strict liability in tort. (E.g., Davis v. Gibson Products Co. (Tex. Civ. App. 1973), 505 S.W.2d 682.) In each of those few cases the injury occurred while the product was in the process of being marketed through a retail outlet in which the product was inten-tionaHy made accessable to the public for inspection in hopes that such inspection would result in the sale of the product. Discounting those cases which have involved the transfer of possession or use of a product for promotional or testing purposes, no case can be found which has held a manufacturer liable in strict liability in tort for injuries which have occurred before a product has, at least, entered its final marketing or merchandising stage, nor has the plaintiff suggested that any such cases exist.

Nevertheless, plaintiff contends that the imposition of liability on the manufacturer of electricity to a person injured by electricity being transmitted by its high power lines is a logical extension of the doctrine of strict liability in tort. We cannot agree.

The Supreme Coiut of Wisconsin when faced with a similar question in Kemp v. Wisconsin Electric Power Co. (1969), 44 Wis.2d 571, 583, 172 N.W.2d 161, 166, held that since the electricity in the high tension transmission wires hád not been sold but‘was still in the control of the defendant, strict liability in tort had no application. While we do not Consider the "fact that there was no sale to be conclusive, we agree with the result reached by the Supreme Court of Wisconsin. The special responsibility imposed by strict liability in tort does not accrue until the product is released “into the stream of commerce.” The focal point is not the “sale” of the product in question but rather the point at which the manufacturer, distributor or retailer relinquishes his exclusive exercise of dominion over such product. In order to determine the point in time at which the product is released “into the stream of commerce” it becomes necessary to analyze the defendant’s marketing scheme in light of the “intended use doctrine” and the foreseeability of harm.

Plaintiffs original complaint referred to the wires in question as ‘high power lines.” Although the term ‘high power line” was not employed in plaintiffs first or second amended complaint, in his brief it is stated that, “The evidence in this case will show that the wires were carrying about 12,500 volts.” And in plaintiffs reply brief he refers to “the great danger of high-voltage electricity.”

It is evident from these facts, derived from plaintiffs own averments, that the electricity which allegedly injured the plaintiff emanated from the ‘high power lines” of the defendant. We can, therefore, assume that the defendant’s marketing or delivery scheme contemplated additional transformation of the product before delivery to its customers. To hold power companies strictly liable in tort while their “products” are being conveyed, in a non-marketable state, to their intended users or consumers or other foreseeable persons is to drastically depart from the doctrine of strict liability in tort as we know it. Unless we are expected to hold public utilities to a higher standard than other manufacturers, we would be required, under the strained version of the rule advocated herein, to hold each manufacturer, distributor and retailer strictly liable in tort for all injuries caused by the product even though said injuries occurred prior to any intended or foreseeable release of the product to the public.

We believe that such a result is not only unwarranted but contrary to the supreme court’s ruling in Winnett v. Winnett, 57 Ill.2d 7, 310 N.E.2d 1. Therein the supreme court stated:

“In our judgment the liability of a manufacturer properly encompasses only those individuals to whom injury from a defective product may reasonably be foreseen and only those situations where the product is being used for the use for which it was intended or for which it is reasonably foreseeable that it may be used. Any other approach to the problem results in making the manufacturer and those in the chain of product distribution virtual insurers of the product, a position rejected by this court in Suvada.” (Emphasis added.) (57 Ill.2d 7,11, 310 N.E.2d 1, 4.)

The court continued, by stating:

“A foreseeability test, however, is not intended to bring within the scope of defendant’s liability every injury that might possibly occur. “In a sense, in retrospect almost nothing is entirely unforeseeable.’ * * * Foreseeability means that which it is objectively reasonable to expect, not merely what might conceivably occur.” (57 Ill.2d 7, 12-13, 310 N.E.2d 1, 4-5.)

The court then went on to hold that the trial court properly dismissed the plaintiff's amended complaint since it was not “objectively reasonable to expect” nor reasonably foreseeable “that a four-year-old child will be permitted to approach an operating forage wagon or that the child will be permitted to place her fingers in or on the holes in its moving screen.” 57 Ill.2d 7,13, 310 N.E.2d 1, 5.

Under the facts alleged herein we hold that the situation which gave rise to the instant cause of action was not within the “intended use” of the product in light of the obvious marketing scheme of the defendant nor was such situation reasonably foreseeable as that term has been defined by our supreme court in Winnett. Consequently, we conclude that the circuit court properly dismissed the plaintiff’s Count II against the Illinois Power Company which is framed in allegations sounding in strict liability in tort.

Next we shall consider plaintiff’s Counts III (Hy-Gain Electronics), IV (Rohn Tower Manufacturing), and V (Lurtz Electric Company), which contend that an antenna and tower, intended for installation high in the air, were unreasonably dangerous for failure to be equipped with warnings of the danger of installing them in close proximity to electrical transmission wires due to the possibility of “arcing,” and are couched in terms of strict liability.

As stated by the plaintiff in his brief,

“ * * a cause of action should not be dismissed on the pleadings unless it clearly appears that no set of facts can be proved under the pleadings, which will entitle the plaintiff to recover.’ Louis v. Barenfanger, 81 Ill.App.2d 104, 226 N.E.2d 85, 88 (5th Dist. 1966), affd. 39 Ill.2d 445, 236 N.E.2d 724 (1968), cert. denied, 393 U.S. 935.”

The plaintiff also refers us to Williams v. Brown Manufacturing Co., 93 Ill.App.2d 334, 360, 236 N.E.2d 125, 139, wherein this coürt stated:

“Contrary to defendant’s contentions, a duty to warn is tío stranger to the law of Illinois. The general rule is well stated in Kirby v. General Paving Company, 86 Ill.App.2d 453, 229 N.E.2d 777, wherein at page 779, the court said. ‘A duty to warn exists where there is unequal knowledge, actual or constructive, and the defendant possessed of such knowledge, knows or should know that harm might or could occur if no warning is given. [Citations.] ® ° A review of the authorities leaves little question that where a manufacturer has reason to foresee that danger may result from a particular use he may be required to give adequate warning of the danger. In the absence of adequate warning, liability may arise from use of an instrumentality not otherwise defective, since failure to warn may itself be the defect which causes injury.” (Emphasis ours.)

The plaintiff cites the case of Stilfield v. Iowa-Illinois Gas & Electric Co., 25 Ill.App.2d 478, 167 N.E.2d 295, in which the complaint was based on negligence, in particular (a) failing to give warning of high voltage, (b) failure to use high poles to carry electrical wires above a known working area, (3) failure to insulate wires in a known working area, and (d) overloading the wires with a greater amount of electric current than they were designed to cany. The injured party was a workman who was injured when a crane came within 3 or 4 feet of an electric wire which “arced” through cables which claimant was handling on the ground. The claimant was not an independent contractor, nor did he represent himself as qualified to perform the technical skills required to correctly install electrical equipment. There was also an intervening agent, the crane operator, who permitted the crane to come within arcing range of the power lines. A jury found the issues for the plaintiff and returned a verdict. The trial judge determined that plaintiff was contributorily negligent and entered judgment n.o.v. in favor of defendant. The reviewing court, after reviewing the evidence, determined that the plaintiff was not contributorily negligent as a matter of law and ordered the verdict reinstated. The case is cited as authority for the proposition that it is not common knowledge that electricity will arc and that, therefore, the manufacturers of such items as antennae are under a duty to warn those who install them of the danger of placing them in proximity to uninsulated electrical power lines. We do not so interpret that holding. (See Witzig v. Illinois Power Co., 114 Ill.App.2d 139.) Even assuming that Stilfield is to be interpreted as plaintiff suggests, it would not be applicable to plaintiff’s product liability counts, since he has held himself out as having more than common knowledge of the dangers of electricity by agreeing to install a citizens’ band antenna and executing such agreement, as he alleges he did in Count VI of his complaint.

Whether or not the allegations in a complaint impose upon the manufacturer or seller a duty to warn is a question of law and not of fact. (Murphy v. Cory Pump and Supply Co., 47 Ill.App.2d 382, 197 N.E.2d 849; Kay v. Ludwick, 87 Ill.App.2d 114, 230 N.E.2d 494; Fanning v. LeMay, 38 Ill.2d 209, 230 N.E.2d 182.) Examples of cases holding no duty to warn include Lance v. Senior, 36 Ill.2d 516, 224 N.E.2d 231; Kahn v. Chrysler Corp. (S.D. Tex. 1963), 221 F.Supp. 677; Weiss v. Rockwell Manufacturing Co., 9 Ill.App.3d 906, 293 N.E.2d 375; Fanning v. Le-May, supra.

The Restatement (Second) of Torts § 388 (1965) states that a chattel is dangerous if the supplier:

“(a) Knows or has reason to know that the chattel is or is likely to be dangerous for the use for which it is supplied, and
(b) has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition, and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be dangerous.”

See also comment k to Restatement (Second) of Torts § 388 (1965).

Applying these tests to both the tower and the antenna we do not find these items as dangerous chattels requiring the warning that the plaintiff contends necessary.

Therefore, under the facts of this case based upon the pleading, we find that as a matter of law the defendants in Count III, IV, and V were under no duty to warn the plaintiff.

Concerning the sixth count directed against Hubert Plumbing and Heating, the plaintiff asserts that the court erred in dismissing this count because it states a cause of action when it alleges that the possessor of the premises (Hubert) hired plaintiff to install a tower and antenna in dangerous proximity to the power lines and without warning that the lines were uninsulated, the possessor having actual or constructive knowledge of these conditions. In support of his contention the plaintiff basically contends that the plaintiff falls within the group of persons protected under the generally known “business invitee” doctrine. The Restatement of Torts, volume II, section 343(f) is cited in Blue v. St. Clair Country Club, 7 Ill.2d 359, 363, 131 N.E.2d 31, and correctly states the law at page 363:

‘A possessor who holds his land open to others for his own business purposes, must possess and exercise a knowledge of the dangerous qualities of the place itself and the appliances provided therein, which is not required of his patrons/ ” (Emphasis ours.)

The Blue case is not helpful in the present case because in that case an outdoor garden umbrella blew loose from its holder and injured a patron. The defendant had been warned about the propensity of the umbrella to blow over in ordinary winds as this had been indicated to the management. The hazard also was on the premises. In the present case the hazard was not on the premises of the invitor; the wires were as visible to the plaintiff as to the invitor. The defective or dangerous condition was not hidden. The plaintiff was engaged as an electrical contractor to which certain knowledge may be imputed.

A business invitee also has responsibility for his own safety. As stated in Beccue v. Rockford Park District, 94 Ill.App.2d 179,188-89, 236 N.E.2d 105,109,

“The limits of the duty owed by one inviting another on his premises is well-defined in Altepeter v. Virgil State Bank, 345 Ill.App. 585, 104 N.E.2d 334 (1952), at page 598:
An owner of property is not an insurer against accident occurring on the premises of the owner, and an owner’s liability to an invitee for injuries not intentionally inflicted must be predicated upon negligence, and no presumption of negligence on the part of the owner arises merely by showing that an injury has been sustained by one rightfully upon the premises. [Citation.] The rule is that an occupant or owner of premises owes to an invitee a duty to use ordinary care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation, not to lead such person into a dangerous trap and to give such person adequate and timely notice and warning of latent or concealed perils which are known to the owner but not to the invitee.’ ”
The court further stated that:
“An invitee using the premises for his benefit and that .of the owner, must be held to be equally aware of all the obvious and normal hazards which accompany the use being made of the premises. The owner’s liability is bottomed on his superior knowledge, presumed or otherwise, of defects in the premises which another is invited to use.” 94 Ill.App.2d 179, 189, 236 N.E.2d 105, 109.

The cases cited by the appellant do not dissuade us from our view. Chicago & Illinois Midland Ry. Co. v. Pillsbury Mills, Inc., 47 Ill.App.2d 373, 198 N.E.2d 126, reversed on other grounds, 32 Ill.2d 600, 208 N.E.2d 573, involved a railroad tie left by the defendant on or near switch tracks owned by the defendant, creating a footing hazard and thereby, rendering the premises unsafe for the employees of the plaintiff.

The plaintiff also cites Beccue v. Rockford Park District, but this case does not aid his cause. Therein the court stated:

“Apart from the obvious dangers, the plaintiff, as an invitee, could assume that the premises were reasonably safe for the use to which the defendant had put them. * * *
‘The rule is that an occupant or owner of premises owes to an invitee a duty to use ordinanry care to have the premises in a reasonably safe condition for use in a manner consistent with the purpose of the invitation, not to lead such person into a dangerous trap and to give such person adequate and timely notice and warning of latent or concealed perils which are known to the owner but not to the invitee.’ ” 94 Ill.App.2d 179, 188, 189, 236 N.E.2d 105, 109. (Emphasis ours.)

The general rule has been often stated and stated in various ways but basically the landowner owes a duty of ordinary care to provide a safe place for the business invitee with respect to uses that are contemplated and to warn of dangers that are or should be known to the party in possession but which are not readily apparent to the invitee. See Nowicki v. Union Starch & Refining Co., 54 Ill.2d 93, 296 N.E.2d 321 and cases cited therein.

See also Giannone v. U.S. Steel Corp. (3d Cir. 1956), 238 F.2d 544, wherein the court found no duty to warn on the part of a landowner who also owned and maintained the electrical wire, when a workman was electrocuted when fixing cables to a steel boom and electricity arced from a nearby power line.

The plaintiff urges that the dangerous condition was not readily apparent. With this assertion we must disagree. The electrical wires were not concealed or hidden and it is common knowledge that power lines are dangerous.

The judgment of the trial court is affirmed.

CREES and CARTER, JJ., concur.

       See Withey v. Illinois Power Company, 32 Ill.App.2d 163, 172, 177 N.E.2d 254, “It has long been recognized that danger of electrical energy is a matter of common knowledge to all persons of ordinary intelligence and experience. Its use as a motive power has become so general and wide spread as to acquaint all competent persons with fact that any line carrying electricity is dangerous.”


source: Caselaw Access Project

author: Mr. JUSTICE CREBS

license: Public Domain

text:
    Jerry Keafer et al., Plaintiffs-Appellees, v. Jim McClelland, Defendant-Appellant.
    (No. 74-176;
    Fifth District
    November 7, 1974.
    Giffin, Winning, Lindner, Newkirk, Cohen, Bodewes & Narmont, of Springfield (James M. Lestikow, of counsel), for appellant.
    No appearance for appellees.
   Mr. JUSTICE CREBS

delivered the opinion of the court:

This is an appeal from an order denying the defendant’s motion to vacate a default judgment entered in favor of the plaintiffs in the small-claims division of the Circuit Court of Christian County. The small-claims complaint was filed on February 22, 1974, and alleged that the defendant was indebted to the plaintiffs in the sum of $1000 for certain improvements made on the defendant’s property. The defendant was served with a summons ordering him to appear in court on March 15, 1974. Counsel for the defendant filed an answer to the complaint on March 14, 1974, in which the defendant denied each allegation of the complaint.

A default judgment wás entered in favor of the plaintiffs when the defendant failed to appear in court on March 15, 1974. On March 27, 1974, the defendant filed a petition to vacate the default judgment. The petition alleged that the defendant had a meritorious defense and cited one case in support of that allegation. The petition also attempted to explain the defendant’s failure to appear in court on March 15, 1974. It was alleged that the defendant’s counsel was unable to appear in court on that date and that the defendant was under the impression that, because his answer constituted an appearance in the case, a default judgment would not be entered. The trial court denied the petition to vacate the default judgment.

The defendant has appealed the trial court’s order denying the petition to vacate and has filed a brief with this court. The plaintiffs have not submitted a brief.

The relevant statutory provision is section 50(5) of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 50(5)) which provides:

“The court may in its discretion, before final order, judgment or decree, set aside any default, and may on motion filed within 30 days after entry thereof set aside any final order, judgment or decree upon any terms and conditions that shall be reasonable.”

It is well established that trial courts should be liberal in setting aside default judgments when it appears that justice will be promoted and when the motion to vacate is filed within 30 days of the judgment. (Engelke v. Moutell, 20 Ill.App.3d 253, 313 N.E.2d 613; Meister Bros., Inc. v. Sigler, 2 Ill.App.3d 853, 275 N.E.2d 903; Knight v. Kenilworth Insurance Co., 2 Ill.App.3d 493, 275 N.E.2d 470.) A default judgment should be condoned when it is necessary to give the plaintiff his just demand; it should ordinarily be set aside when it wiH not cause a hardship upon the plaintiff to go to trial on the merits. (See Doss v. Field Enterprises, Inc., 15 Ill.App.3d 875, 305 N.E.2d 431, and Widicus v. Southwestern Electric Cooperative,. Inc., 26 Ill.App.2d 102, 167 N.E.2d 799.) When a petition to vacate a default"judgment is filed within term time pursuant to section 50(5) of the CivH Practice Act (Ill. Rev. Stat., ch. 110, par. 50(5)), unlike the situation in which relief is sought pursu'ant to section 72 of the CivH Practice Act (Ill. Rev. Stat., ch. 110, par. 72), it is not necessary that a meritorious defense and a reasonable excuse for not having asserted that defense be shown; the overriding consideration is whether or not substantial justice is being done. (People ex rel. Reid v. Adkins, 48 Ill.2d 402, 270 N.E.2d 841.) Whether the petitioner has asserted or shown a meritorious defense or a good excuse are, of course, factors that should be considered in determining whether the judgment should be vacated.

Since the hearing on the petition to vacate the default judgment in the instant case was not transcribed, we are unable to accurately determine whether the defendant has asserted a meritorious defense. The defendant’s petition to vacate, however, indicates that a meritorious defense may exist. The defendant filed the petition to vacate only 12 days after the default judgment was entered. There is nothing to suggest that vacating the judgment will cause a hardship to the plaintiffs. Under these circumstances, we believe that substantial justice requires that the cause be determined on its merits.

For the foregoing reasons, we hold that the court erred in denying the defendant’s motion to vacate the default judgment. Therefore, the order of the Circuit Court of Christian County is reversed and the cause is remanded with directions that a hearing on the merits be held.

Reversed and remanded.

EBERSPACHER and CARTER, JJ., concur.


author: Mr. JUSTICE CARTER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jess J. Morlan, Defendant-Appellant.
    (No. 73-307;
    Fifth District
    November 7, 1974.
    Robert E. Farrell of Mt. Vernon, and Bruce Stratton, of Springfield, both of State Appellate Defender’s Office, for appellant.
    Loren P. Lewis, State’s Attorney, of Benton, for the People.
   Mr. JUSTICE CARTER

delivered the opinion of the court:

On May 18, 1972, an information was filed in the Circuit Court of Franklin County, charging the appellant with rape. On June 6, 1972, pursuant to a negotiated plea, the appellant pled guilty to the charge and was sentenced to the Illinois Department of Corrections for a period of not less than 4 nor more than 6 years. The appellant did not take a direct appeal from this conviction and judgment.

On March 3, 1973, appellant filed a pro se post-conviction petition, pursuant to section 122 — 1 et seq. of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1971, ch. 38, par. 122 — 1 et seq.), and thereafter the post-conviction petition was amended foUowing appointment of counsel for appeUant. On June 6, 1973, exactly one year after appellant had entered his guilty plea, an evidentiary hearing was held pursuant to section 122 — 6 of the Code to determine whether appellant had been substantially denied certain constitutional rights when he pled guilty on June 6, 1972. The trial court, upon hearing the evidence and examining the documents on file, denied appeHant’s post-conviction petition, as amended, and dismissed the case. From such order the appellant now brings this appeal.

In denying appeHant’s post-conviction petition and dismissing the case, the trial court below found — and stated to the effect at the post-conviction evidentiary hearing — that the record of the conviction proceeding on June 6, 1972, revealed that the defendant had knowingly and voluntarily entered his plea of guilty. We disagree.

In reviewing a determination made by a trial judge in a post-conviction hearing under section 122 — 6 of the Code, we wül not disturb such determination unless we find it to be manifestly erroneous. (People v. Brown, 12 Ill.App.3d 535, 299 N.E.2d 37; People v. Rendleman, 11 Ill.App.3d 214, 296 N.E.2d 610). After a review of the report of proceedings on June 6, 1972, together with the transcript of the post-conviction evidentiary hearing, we find the trial court’s determination in this case to be erroneous.

We note at the outset that the gist of appeHant’s post-conviction petition, as amended, focuses upon whether appellant knowingly and voluntarily pled guilty to the charge of rape on June 6, 1972. While not raising the question of whether there was substantial compliance with Supreme Court Rules 401 and 402, the appeUant did allege:

(1) that the trial court had wholly failed to inquire into the factual basis of the aUeged offense prior to accepting his guüty plea;

(2) that appeUant was denied the right to trial by jury;

(3) that appellant was denied the right to confront his accusers;

(4) that appellant was denied the right and privilege against compulsory self-incrimination; and

(5) that appeUant was denied effective assistance of counsel at the conviction proceedings on June 6, 1972.

Attached to appellant’s post-conviction petition was a copy of the report of proceedings wherein the plea of guilty was entered and accepted on June 6, 1972.

It is a constitutional requirement that the record show that defendant entered a plea of guilty knowingly and voluntarily. (Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709.) However, there is no constitutional requirement that the record show that the defendant be admonished as to every right which is waived by a guilty plea. People v. Reeves, 50 Ill.2d 28, 276 N.E.2d 318; People v. Towns, 3 Ill.App.3d 710, 279 N.E.2d 60; People v. Nardi, 48 Ill.2d 111, 268 N.E.2d 389.

We quote below the report of proceedings on June 6, 1972, in its entirety:

“Mr. Owens [State’s Attorney]: We are here this morning in case No. 72-CF-34, The People vs. Jess Morian, for the purpose of preliminary hearing, and in conference with the defendant and his attorney, the Public Defender, the defendant has indicated that he would like to waive that procedure and enter his plea in this matter.
Mr. Lucas [Defendant’s Attorney]: Your Honor, we would like the record to reflect at this time that Mr. Morían and I have discussed this matter and this charge on several occasions. I, as his court appointed attorney, have explained to him his constitutional rights in regard to my representing him and in regard to the burden of proof being on the state which would be necessaiy to find him guilty of this most serious charge. Mr. Morían persists in directing me as his attorney after having been advised of the minimum sentence on a conviction of this offense of not less than four years nor more than his natural life, he persists in directing me after our conferences in regard to this matter, in waiving preliminary hearing, waiving indictment by grand jury and entering his plea of guilty to the felonious charge of rape. He further asks that we waive hearing in aggravation and mitigation and upon discussion of this matter with the State’s Attorney and in regard to plea bargaining which has taken place in regard to this charge by my office for Mr. Morían, it is my understanding that upon a plea of guilty by Mr. Morían that the State’s Attorney would recommend not less than four nor more than six years. And at this time, Your Honor, we, would ask that the record show that we do waive formal arraignment, we jvaive grand juiy indictment and we wish to enter our written plea of guilty to the charge as is [sic] set out in the information. Mr. Morían, of course, is in open court today and I will ask him for the record so there is no mistake about this. Mr. Morían, you have heard the statements I have made as your counsel here today, haven’t you?
Mr. Morían: Yes, sir.
Mr. Lucas: I have stated your feelings as you have expressed them to me, have I not?
Mr. Morían: Yes, sir.
Mr. Lucas: Is it still your desire to direct me to make these statements in your behalf?
Mr. Morían: Yes, sir.
(Defendant executes written waiver of indictment by grand jury and written waiver of trial by jury and plea of guilty.)
The Court: Alright, Mr. Morían, I will accept your waiver of indictment by grand jury and also your waiver of trial by jury and plea of guilty and advise you that you do have a right to an investigation by the probation officer prior to sentencing, but do you waive that right?
Mr. Morían: Yes, sir.
The Court: Alright, then, I will take the recommendation of the State’s Attorney and sentence you to the Illinois Department of Corrections for a period of not less than four years nor more than six years, and at this time direct the Sheriff of Franklin County to deliver you to the Department of Corrections of the State of Illinois to be placed in the penitentiary during the term that you have been sentenced to.”

It is pointing out the obvious to note that the only inquiry made of the appellant by the trial court in the entire proceeding quoted above was with regard to a presentence investigation and waiver thereof. The record reflects no personal admonishments by the trial court, no determination regarding whether the appellant understood the nature of the crime for which he was charged, whether he knew he had a right to persist in a plea of not guilty, whether he understood the effect of a guilty plea with regard to waiving his right against compulsory self-incrimination, whether his plea of guilty was induced by fear, promises or threats, whether there was any factual basis for the plea, whether appellant knew that his guilty plea would waive his right to confront the witnesses against him, whether appellant knew that a guilty plea waived the right to trial by jury. Nor did the trial court personally confirm the plea agreement with the appellant.

Absolute compliance with Supreme Court Rule 402 is not constitutionally required; however, substantial compliance is required. (People v. Green, 12 Ill.App.3d 418, 299 N.E.2d 535.) In People v. Miller, 19 Ill.App.3d 864, 867, 312 N.E.2d 352, 354, the court stated:

“Failure to substantially comply with Supreme Court Rule 402 results in a deprivation of due process which is error of a constitutional magnitude.” (See also People v. Barber, 51 Ill.2d 268, 281 N.E.2d 676.)

In the instant case, appellant did not allege specifically in his post-conviction petition that the trial court failed to substantially comply with Supreme Court Rule 402; instead, he alleged that he was demed certain fundamental constitutional rights by reason of the trial court failing to “* * * sufficiently inquire into whether [he] knowingly, voluntarily, or understandingly pled guilty * # We find that the appellant has, in essence, alleged that the trial court substantially failed to comply with Rule 402, which was promulgated to insure compliance with the mandate of Boykin v. Alabama, supra, and People v. Miller, supra.

In People v. Meredith, 21 Ill.App.3d 305, 314 N.E.2d 612, a case which also came before this court after a post-conviction evidentiary hearing, we reversed and remanded with instructions that the defendant be allowed to plead anew because the record there did not affirmatively disclose that the defendant had pled guilty understandingly and voluntarily. In Meredith, the defendant had not been advised by the trial court of his right to persist in his plea of not guilty or of his right to be confronted with the witnesses against him. No determination had been made as to whether or not any force or threats or any promises, apart from the plea arrangement, had been used to obtain the plea. The instant case is more compelling for reversal.

When coupled with all of the other violations of Rule 402, the . failure of the trial court to determine a factual basis of the appellant’s plea is itself cause for reversal. In People v. Miller, 19 Ill.App.3d 864, 867, 312 N.E.2d 352, 354, the court stated:

“The requirement that a factual basis for a plea be established is interwoven within the constitutional fabric of the concept of voluntariness enunciated in Boykin. Supreme Court Rule 402 (c) is designed to assist the trial judge in making the constitutionally required determination that a defendant’s guilty plea is truly voluntary; and to produce a complete record at the time a plea is entered of the factors relevant to such voluntariness. Therefore the failure to substantially comply with Rule 402(c) results in a failure to substantially comply with Rule 402 in its entirety.” (Emphasis added.)

It should be noted that in the evidentiary hearing on the post-conviction petition, the appellant testified that he did not remember anything about what was “supposed to have happened” and had thought he had been arrested for “being drunk.” An evidentiary hearing on a post-conviction petition attacking the voluntariness of the guilty plea on constitutional grounds cannot breathe constitutional life into the conviction proceedings record, which on its face reflects substantial noncompliance with Supreme Court Rule 402, especially when such evidentiary hearing itself fails to elicit such factual basis from the testimony of the appellant himself. The fact that appellant signed a form allegedly waiving his right to grand jury indictment and trial by jury and allegedly entering a guilty plea is not sufficient, of itself, to indicate that such waivers and plea were understandingly or voluntarily made. People v. Paproth, 18 Ill.App.3d 385, 309 N.E.2d 706.

In view of our determination that the record does not affirmatively disclose that appellant entered this plea of guilty knowingly and voluntarily, we need not consider his contention with regard to denial of effective assistance of counsel.

We reverse the decision of the Circuit Court of Franklin County and remand with instructions that the defendant be allowed to plead anew.

Reversed and remanded with directions.

G. MORAN, P. J., and EBERSPACHER, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Michael Scott, Defendant-Appellant.
    (No. 73-379;
    Fifth District
    November 8, 1974.
    Robert Farrell, of Mt. Vernon, and Steven Clark, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Guy Lahr, III, State’s Attorney, of Metropolis, for the People.
   PER CURIAM.

CARTER, J., took no part.


author: PER CURIAM:

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond E. Meyers, Defendant-Appellant.
    (No. 72-84;
    Fifth District
    November 8, 1974.
    Robert E. Farrell and Stephen P. Hurley, both of Mt. Vernon, and Kenneth L. Jones and Gordon L. Berry, both of Chicago, all of State Appellate Defender’s Office, for appellant.
    Bernard G. Heiligenstein, Special State’s Attorney, of Carlyle, for the People.
   PER CURIAM:

The defendant Raymond Meyers was convicted in the circuit court of Clinton County of the violation of section 1 of “An Act to prevent and punish the desecration, mutilation or improper use of the flag of the United States of America” (Ill. Rev. Stat. 1969, ch. 56%, par. 6). He waived trial by jury and in a bench trial was found guilty and sentenced to 2 weeks in the county jail, 2 years’ probation, and a fine of $70.

Defendant makes several contentions in this appeal, but we deem it necessary to discuss only defendant’s contention that his conduct did not constitute a violation of the offense charged.

Defendant was charged with violating the second part of section 1 (Ill. Rev. Stat. 1969, ch. 56%, par. 6), which provided:

“Any person who publicly mutilates, defaces, defiles or defies, tramples or casts contempt upon, whether by words or act, any such flag, standard, color or ensign shall be punished by a fine of not less than one thousand dollars nor more than five thousand dollars or by imprisonment in the penitentiary from one to five years or both.”

The defendant was specifically charged with publicly trampling on the American flag.

The prosecution called only two witnesses at the trial, Policemen Charles Perkojski and Ronald Edmonson., Perkojski testified that on July 31, 1971 he entered Fairview Park in Centraíia, Illinois, and observed a group of people, including the defendant, around a small pond. As Perkojski approached the group he noticed that the defendant was lying on the American flag. Perkojski parked his squad car and got out to talk to the defendant, at which time he called Officer Ronald Edmonson to assist him. As Perkojski approached, the defendant commenced to arise and momentarily stood on the flag while getting up. The defendant then picked up the flag and put it in a car which was parked nearby. Perkojski testified that there were other people in the park at the time, but that he knew of no disturbance in the park. To Perkojski’s knowledge, none of the other people in the park were excited by the defendant’s actions. Ed-monson testified that when he arrived in Fairview Park he observed the defendant reach down, pick up the American flag, wad it up and put it in a car. Edmonson stated that he did not see the defendant lying on the flag.

In our opinion, the foregoing evidence is insufficient to prove that the defendant publicly trampled on the flag as alleged in the indictment. The evidence that he was lying on it does not prove that he was trampling on •it; nor was his mere act of stepping on it while getting up equivalent to public trampling on it. Since we reach this conclusion, we do not consider other contentions urged by the defendant.

Since the evidence in this case is insufficient to prove any violation of the statute in question by the defendant, this case must be reversed and the fine levied against him returned to him, since such fine is not authorized by statute.

Judgment reversed with directions.

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


author: Mr. PRESIDING JUSTICE McNAMARA

text:
      In re Estate of Margaret G. Fidler, Deceased—(Irene Middaugh, Ex’r, Petitioner-Appellant, Cross-Appellee, v. Keystone Custodian Funds, Inc., et al., Respondents-Appellees, Cross-Appellants).
    (No. 59452;
    First District (3rd Division)
    October 17, 1974.

      Black and Beerman, of Chicago, for appellant.

      Chapman and Cutler, of Chicago (Abbey Blattberg and Nancy S. Whitten, of counsel), for appellee Keystone Custodian Funds, Inc.
    Robert J. Egan, of Chicago (Richard A. Michael, of counsel), for appellee Bernadine V. Strand.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Irene Middaugh, as executrix of the estate of Margaret G. Fidler, deceased, petitioned the circuit court of Cook County for the issuance of a citation to recover stock and proceeds of redeemed stock allegedly held by decedent and Bernadine V. Strand in tenancy in common at the time of decedent’s demise. The primary issue presented is whether the trial court was correct in determining that Mrs. Strand was a surviving joint tenant. Named as respondents in addition to Mrs. Strand were Link, Gorman, Peck and Company (hereinafter “Link”), decedént’s investment dealer; National Securities and Research Corporation (hereinafter “NSRC”), American Mutual Fund, Inc. (hereinafter “American”) and Keystone Custodian Funds, Inc., and Investment Companies Services Corporation (hereinafter “Keystone”), the coiporations whose stock is involved in this action, and the Bank of New York, the successor trustee of a stock series in ’NSRC. Upon being served with a citation summons, Keystone, a New York Corporation, filed a special appearance and moved to quash on the ground that the court lacked jurisdiction over it. After the court denied the motion to quash summons, Keystone joined the other respondents in maintaining that Mrs. Strand was the surviving joint tenant in the stock. After a hearing, the court denied the petition and discharged the respondents. Petitioner appeals.

Petitioner contends that the trial judge erred in concluding that a joint tenancy had been created in the stock and in refusing to admit into evidence two of her exhibits. Respondents argue that the court’s decisions were correct, and Keystone additionally contends thát it is protected by statute in its redemption of some of the stock upon Strand’s request after decedent’s death. Keystone has also filed a cross-appeal from the trial court’s order denying its motion to quash service of summons.

Since we have concluded that it is necessary only to consider the issues raised by petitioner to dispose of the appeal, the following statement of facts shall pertain to those issues only.

Until the faU of 1966, the decedent and her husband Harry Fidler owned in joint tenancy shares of stock in the mutual funds of American, Keystone, and NSRC. The Fidl'ers also participated in level payment withdrawal plants in Keystone and NSRG whereby they would receive monthly checks.

On August 17, 1963, the decedent wrote letters to Keystone and NSRG requesting a change in the title of the payment accounts. The letters, typed on stat'onery bearing Link’s letterhead, expressed the Fidlers’ desire to transfer ownership in the accounts to “Margaret G. Fidler and Bernadine V. Strand.” The decedent, who signed the letters along with Mrs. Strand, did not expressly ind'cate the precise legal manner in which the accounts were to be held. Enclosed in the letter to NSRG was an application form, dated August 31, 1986, for that company’s level payment withdrawal plan. The appl cation had been prepared by Link and had been signed by the decedent and Mrs. Strand. Printed in the space reserved for the listing of the shareowners was “Margaret G. Fidler and Bernad'ne V. Strand (Jointly).” NSRG, as well as Keystone, subsequently transferred ownership in the accounts into the names of the two women as joint tenants with right of survivorship. Since decedent directed in her letter to Keystone that the monthly checks were to be issued in her name alone, Key:.tone sent to her at regular intervals statements of account in the plan reflecting the manner in which legal title was held.

Link sent letters, dated August 31, 1966, to the stock transfer departments of the corporate respondents directing that the stock ownership was to be transferred to decedent and Mrs. Strand in joint tenancy with the right of survivorship. The letters were enclosed with the Fidlers’ old stock certificates, which bore their blank endorsements on the reverse side. Petitioner concedes that the stock certificates which were subsequently reissued bore the names of the two women as the owners followed variously with the initials “JT,” “JTWRS,” and “JT TEN WROS.”

Decedent executed a will on October 3, 1969, and died on December 18, 1970. Her will, admitted to probate, contained several bequests of general legacies to her relatives. Her residuary estate was to be divided among several specfie charities. The will made no mention of Mrs. Strand or the stock holdings. The executrix stated in her petition that an inventory of decedent’s assets had disclosed that tire stocks involved in the present action encompassed her entire estate.

Some oral testimony was also adduced at the hearing. The first two witnesses called by pet'tioner were Nancy Whitten, an attorney representing Keystone, and Edward Malone, an officer in charge of the transfer department of a subsidiary of Keystone. By their combined testimony petitioner hoped to lay a foundation for the introduction of two exhibits. The exhibits purported to be the general transfer certifications of Keystone, signed by the Fidlers, relating to the change in stock ownership. The documents recited that the stock was to be transferred to the decedent and Mrs. Strand, but failed to state the precise legal manner in which the stock was to be held. Keystone conceded that the documents were originals and that they had been obtained from Keystone’s archives. The trial court denied their admission into evidence because of a lack of authentication.

Mrs. Strand testified that Harry Fidler had been her brother-in-law. She stated that decedent had lived with her up to a year before her death.

Petitioner testified that the decedent came to live with her after leaving Mrs. Strand. She testified that decedent had tried to get her to remove Mrs. Strand’s name from the stocks because “the money was all hers and that she [Mrs. Strand] treated her so mean that she had to move away from her.”

A neighbor of the petitioner testified that he had accompanied the decedent to Mrs. Strand’s home on two occasions to recover personal belongings and implied that Mrs. Strand initially had obstructed them.

Petitioner’s first and primary contention is that the trial court erred in implicitly concluding that the evidence showed that the decedent had created a joint tenancy and not a tenancy in common with Mrs. Strand in the stock.

The key provision in this regard is section 2(b) of “An Act to revise the law in relation to joint rights and obligations” (Ill. Rev. Stat. 1971, ch. 76, par. 2(b)). That section of the statute reads in pertinent part:

“When shares of stock * * * are or have been issued or registered by any corporation, association or other entity in the names of two or more persons as joint tenants with' the right of suiwivorship, such corporation * * * may, upon the death of any one of such registered owners, transfer said shares s * * to or upon the order of the survivor * * * without inquiry into the existence, validity or effect of any such will or other instrument in writing or the right of such survivor or survivors to receive the property, and without liability to any other person whomsoever who might claim an interest in or a right to receive all or a portion of the property so transferred; * *

In interpreting this provision, our supreme court has stated that the registration of stock ownership in appropriate statutory language shall create a right of survivorship, and upon the death of one joint tenant, ownership passes to the surviving joint tenant, subject to divestment if the circumstances surrounding the transaction warrant it. (Frey v. Wubbena (1962), 26 Ill.2d 62, 185 N.E.2d 850.) A signed agreement between the parties need not be executed to create a joint tenancy in stock. (In Re Estate of Pokorney (1968), 93 Ill.App.2d 174, 236 N.E.2d 396.) A prima facie presumption of donative intent exists where the proof shows statutory compliance. (Murgic v. Granite City Trust & Savings Bank (1964), 31 Ill.2d 587, 202 N.E.2d 470.) An aggrieved party must prove by clear and convincing evidence that the decedent lacked the intent to create a joint tenancy. (Estate of Zengerle v. Greenman (1971), 2 Ill.App.3d 98, 276 N.E.2d 128.) The remedy of divestment preserves those forms of equitable relief afforded in cases involving a confidential relationship, fraud, undue influence, the investiture of nominal title for the purpose of convenience, and situations of like character. Lytle v. Northern Trust Co. (1963), 39 Ill.App.2d 372, 188 N.E.2d 743.

We shaU initially aHude to petitioner’s threshold argument that the presumption of survivorship implanted in the statute should not be recognized here since the registration of stock ownership upon the corporate books did not comply with the Frey statement that it denote in “appropriate statutory language” the joint tenancy nature of the holdings. Petitioner interprets the phrase used in Frey to require the use of exact terminology, “joint tenancy with right of survivorship,” on the corporate books before the co-owner of the stock can claim the presumptive sur-vivorship feature.

We believe petitioner has no standing to raise this issue on review. The record discloses that the entire thrust of petitioner’s argument was directed toward establishing that the stock in question had been registered in joint tenancy with right of survivorship in disregard of the intentions and directions of the decedent. This fact is made evident when it is noted that petitioner did not contest respondents’ answers to interrogatories which stated that the stock had been registered on their books in the names of the two women as “Joint Tenants with Right of Survivor-ship.” Indeed, during argument on respondents’ motion to dismiss the proceedings, petitioner’s counsel stated: “I don’t care how they were registered, but there were never instructions issued.” Consequently, petitioner is foreclosed from altering her theory of recovery on appeal. Gowdy v. Richter (1974), 20 Ill.App.3d 514, 314 N.E.2d 549.

Therefore, respondents are entitled to the presumption that their records properly evidenced decedent’s intention and that Mrs. Strand became at decedent’s death the owner of all the stock. We next must consider the evidence to determine whether petitioner clearly and convincingly made a case for divestiture.

Petitioner’s argument is primarily based upon decedent’s signed letters of August 17, 1966, to Keystone and NSRC. She contends that since the letters omitted any reference to the precise legal manner in which the transferred ownership in the stock was to be held, it must be presumed that decedent’s intent was to hold the stock in tenancy in common with Mrs. Strand.

In our opinion, the letters do not clearly and convincingly prove petitioner’s contention. The short answer to the argument is that the letters specifically relate to the manner in which ownership was to be transferred to the companies’ level payment withdrawal plans and not ownership of the stock. Moreover, even if we were to detect from the contents of a letter a desire by decedent that the letter be deemed an indication of the stock assignment as well, the circumstances surrounding this transaction strongly rebut any implication that the ownership in the stock and in the payment plans was to be held in tenancy in common. The NSEC application form for the withdrawal payment plan, which had been prepared by Link and which bore the signatures of the two women, stated on its face that the shareowners were “Margaret G. Fidler and Bernadine V. Strand (Jointly).” Link sent letters to the respondent corporations specifying that the assignment in ownership was to be made to the two women in joint tenancy. Moreover, the reissued certificates reflected on their face the joint tenancy nature of the holdings, and decedent regularly received from Keystone statements of account which showed that the account had been registered in joint tenancy with right of survivor-ship. Yet the record is silent regarding any objection or notification by the decedent or anyone else to the respondent corporations from the time of this transaction to the date of decedent’s death 4 years later.

Petitioner argues, however, that any doubts as to decedent’s intent at the time of the present transaction are dissipated when one examines the contents of her will and the testimony at the hearing. The will, executed more than 3 years after the stock transfer, granted several bequests of general legacies to relatives without mention'ng Mrs. Strand or the stock. At the time of death, decedent’s entire estate allegedly consisted of the stock. Petitioner also points out that the testimony demonstrated that the decedent and Mrs. Strand were not on good terms at the time of decedent’s death.

This argument overlooks the fact that evidence of lack of donative intent must focus upon or relate back to the time of the creation of the joint tenancy. (In Re Estate of Stang (1966), 71 Ill.App.2d 314, 218 N.E.2d 854.) The evidence adduced by petitioner does not approach meeting this standard. Nothing can be drawn from the fact of the omission in the will of any mention of Mrs. Strand or the stock. The stock transfer took place more than 3 years prior to the will’s execution. (See Murgic v. Granite City Trust & Savings Bank.) Moreover, any deterioration in the friendship between the two women has no material relevancy to the intent of the decedent at the time of the stock transfer. The legislature has determined that joint tenancy is an effective alternative to a will for the transfer of property upon death, and has set forth a specific means to abrogate the joint tenancy relationship prior to the death of one of the parties. The scanty evidence in the present case does not show clearly and convincingly the lack of donative intent on the part of the decedent at the time the ownership in the stock was transferred.

Petitioner’s next contention is that the trial judge erred in refusing to admit into evidence petitioner’s Exhibits 1 and 2 for Identification. The exhibits purported to be general transfer certifications in the stock transfer transaction relating to Keystone. They also purportedly bore the signature of the Fidlers and named as transferees the decedent and Mrs. Strand. The court denied their admission into evidence because of lack of a proper foundation, specifically lack of authentication. Although respondents admitted that the documents were the originals, and that they had been obtained from Keystone’s archives, no evidence was offered regarding the genuineness of the signatures of the Fidlers.

The trial court was correct in refusing to admit the documents into evidence. In order to have a document introduced into evidence, the moving party must lay foundations to circumvent hearsay, authentication, and best evidence preclusion rules. (In Re Application of County Collector (1974), 18 Ill.App.3d 272, 309 N.E.2d 722.) A timely objection was made in the present case, and petitioner did not bother to prove the authenticity of the documents. Moreover, even if the court erred in refusing to admit the two documents in evidence, their introduction would have had an insignificant effect on the result of this case.

For the reasons stated, the order of the circuit court of Cook County denying the petition for the issuance of a citation and discharging respondents is affirmed.

Order affirmed.

McGLOON and MEJDA, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Herman Watkins et al. (Impleaded), Defendants-Appellants.
    (No. 57085;
    First District (3rd Division)
    October 17, 1974.

      Levin & Novoselsky, of Chicago (Henry N. Novoselsky, Irwin G. Jann, and G. Michael Cooper, III, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Scott W. Petersen, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE McNAMARA

delivered the opinion of the court:

Defendants, Herman Watkins and Ronald Gary, were charged with attempt murder, armed robbery, and aggravated battery. After a jury trial in the circuit court of Cook County, defendants were acquitted of the charge of attempt murder and convicted of armed robbery and aggravated battery. Gary was sentenced to 40 to 100 years for armed robbery and 4 to 10 years for aggravated battery, the sentences to run concurrently. Watkins was sentenced to 20 to 40 years for armed robbery and 4 to 10 years for aggravated battery, the sentences to run concurrently. Joseph Brooks was indicted with defendants on these same charges but, as we shall examine later, the charges were nolle pressed by the State.

On appeal defendants contend that the trial court erred in denying their motion to suppress evidence; that they were denied due process of law by not being promptly taken before a magistrate; that they were deprived of a fair trial in which they could fully present evidence and cross-examine witnesses; that the trial court erred in denying their motion to suppress the identification testimony; that the court erred in permitting the jury to consider evidence which had been improperly introduced; that they were not proved guilty beyond a reasonable doubt; and that the sentences imposed were excessive.

On December 16, 1970, at approximately 2:30 A.M.. an armed robbery occurred at a mail order plant of Sears, Roebuck and Company in the city of Chicago. Two Sears’ employees, Tommy Brooks (not related to Joseph Brooks) and Walter Lada, were collecting cash receipts in the plant when they were approached from the rear by two men, one of whom brandished a pistol. After ordering the two employees to “freeze,” the gunman shot Lada in the face. As a result of the shooting, Lada was severely injured, and he was described at trial as having “no speech” and “very little by way of recognition and carrying on judgment.” At the sound of the gunfire, Tommy Brooks dove to the floor. The robbers snatched the bag of cash and raced down a corridor to an emergency exit. A waiting auto, driven by a third person, drove them away. The defendants, arrested on unrelated charges on December 19, were subsequently charged with the present crimes.

We consider initially what we believe to be the determinative issue of this appeal: whether defendants were denied a fair trial in which they could fully present evidence and properly exercise their right of cross-examination. To understand the issue, it is necessary to set forth in detail a chronology of the pertinent court proceedings.

Prior to trial, defendants and Joseph Brooks sought leave to file a motion to suppress identification testimony. The prosecutors did not object, but informed the court that it was the accuseds’ last day to stand trial under the Four Term Act. The trial judge thereupon ruled that the motion to suppress could be filed, that jury selection would commence, and that the motion to suppress would be heard.

At the hearing on the motion to suppress identification testimony, Tommy Brooks testified to the pretrial procedures employed by the police, including the manner of his identification of Gary at a lineup on December 19, 1970.

After the witness had been excused, a jury was called. The court made preliminary remarks to the prospective jurors, informing them of the nature of the charges, and introducing the three accuseds, their counsel, and the prosecutors. The court then commenced the voir dire examination, and a panel of four jurors was selected. Jury selection was continued for a day, and the hearing on the motion to suppress identification testimony resumed.

Jessie Sharp, a Sears’ employee, testified that three women employees of Sears and he were picked up by the police and taken to a police station on December 17, 1970, to view mug shots. No identifications were made. He returned to the police station on December 21 and viewed two books of photographs. When he was again unable to make any identifications from the photographs, he was shown two photographs of a lineup conducted on December 19. Sharp identified Joseph Brooks from these latter photographs.

After the witness had been excused, Harry Picardi, another Sears’ employee, took the stand. He had just begun to testify when the prosecutor interrupted to inform the court that because “certain developments” had arisen, the State had “no choice” but to nolle prosse the case against Joseph Brooks. Counsel for defendants objected, statmg that the jury process selection had begun and that this action would have to be explained to the jury. After allowing the State’s motion, the trial court stated for the record that it had offered defendants a mistrial, which they had refused.

The hearing on the motion to suppress identification testimony then resumed. Picardi testified that on December 19, after viewing a lineup, he identified Joseph Brooks and the two defendants as the robbers. William Binder, also a Sears’ employee, testified that he viewed 10 mug shots before attending the lineup. At the lineup, he identified Joseph Brooks and the two defendants. At the hearing Binder was asked if he saw Brooks in the courtroom. Binder then identified Watkins as Brooks. When asked to identify Watkins, Binder pointed out Gary. The witness then erroneously stated that Joseph Brooks was not present in the courtroom.

After the trial court had denied defendants’ motion to suppress the identification testimony, defendants’ counsel inquired as to what explanation would be furnished the jury regarding Joseph Brooks’ absence. Counsel expressed the fear that the jury would infer that Brooks had pleaded guilty. The judge replied that he would tell the jury that it could no longer consider any case against Joseph Brooks. Defense counsel, while declining to move for a mistrial, responded that the State had placed defendants in the difficult position of asking for a mistrial or breaking their term by the nolle prosse of the charges against Joseph Brooks.

When court reconvened, the State requested that defense counsel be precluded from mentioning to the jury the actions taken by the State in relation to Brooks. The trial judge stated that he considered Brooks to be an “integral part” of the case. Defense counsel stated that Brooks had a very strong ahbi which would counter the identifications of him, and that defendants should not be restricted in advance from offering evidence as to what had occurred. Thereupon, the trial judge, over the objections of both sides, declared a mistrial and dismissed the panel of jurors already selected.

Thereafter, a new jury was selected. The trial court denied defendants’ motion to dismiss the indictment on the ground of double jeopardy. At trial the court sustained the State’s objections to defense counsel’s attempts to adduce testimony from State witnesses that they had identified Joseph Brooks as one of the three robbers.

For the purpose of considering the issue in question, the pertinent trial testimony may be summarized briefly. Tommy Brooks testified that Walter Lada and he had been robbed in the Sears’ plant by two men. He identified Gary as the man who had shot Lada. Binder and Picardi testified that on the day of the robbery they had noticed a man, whom they identified as Watkins, standing outside the Sears’ plant near a dirty, rusty auto with its car hood up. They subsequently observed two men run out of the plant and enter the vehicle. Watkins slammed down the hood and drove off. The two witnesses identified Gary as one of the two men who entered the auto. Walter Lada testified that Watkins was the man who had shot him.

Defendants denied any participation in the crimes, and offered evidence of an alibi, supported by witnesses. Defense counsel also made a detailed offer of proof outside the presence of the jury concerning the alibi of Joseph Brooks. His argument essentially was that the State’s nolle of Joseph Brooks, in light of the identifications of him as a participant in these crimes and the alibi he was apparently prepared to use at trial, gave rise to an inference of possible mistaken identification, which the jury should be able to consider. The trial court sustained the State’s objection to the offer of proof.

Defendants’ contention of constitutional deprivation stems from two circumstances: first, the declaration of a mistrial by the trial judge, and secondly, the restrictions placed on the defendants prohibiting their counsel from questioning the State’s witnesses regarding their identification of Joseph Brooks as one of the perpetrators of the crimes.

The decision to declare a mistrial, while it should be exercised with caution, rests within the sound discretion of the trial court, and will not be disturbed on review unless there has been an abuse of that discretion. (People v. Laws (1963), 29 Ill.2d 221, 193 N.E.2d 806; People v. Thomas (1958), 15 Ill.2d 344, 155 N.E.2d 16, cert. denied (1959), 359 U.S. 1005.) In the present case, the trial court did not abuse its discretion in declaring a mistrial. We also hold that the trial court correctly denied defendants’ motion to dismiss the indictments based upon their claim of double jeopardy.

We believe, however, that the trial court committed reversible error in not allowing defense counsel to cross-examine the State’s witnesses as to their identification of Joseph Brooks as one of the robbers. We recognize that the scope of cross-examination ordinarily rests within the sound discretion of the trial court. (People ex rel. Walker v. Pate (1973), 53 Ill.2d 485, 292 N.E.2d 387.) However, when identification is in issue, defendants should be given considerable latitude on cross-examination of the identifying witnesses to test the identification, the means of observation, and the memory of the witnesses. People v. Struck (1963), 29 Ill.2d 310, 194 N.E.2d 236.

In the present case, despite the fact that during the hearing on the motion to suppress the identification three witnesses positively identified Joseph Brooks as one of the robbers, the State unexplainably nolle pros sed the charges against Brooks. It is undisputed that Brooks never appeared as a State’s witness at the trial and that he has never been brought to trial on the present chargés. Moreover, defense counsel’s argument and detailed offer of proof made outside the presence of the jury that the reason for the nolle prosse was the legitimacy of Brooks’ alibi has gone unchallenged by the State. Clearly, under these circumstances, defendants, both of whom were similarly identified at trial by two of the witnesses in question and both of whom also raised defenses of alibi, should have been permitted a reasonable inquiry and cross-examination of Binder and Picardi regarding the circumstances surrounding their prior identifications of Joseph Brooks as a participant in these crimes. Since the State had placed Brooks with defendants at the scene of the robbery, questioning the State’s witnesses regarding their ability to observe, recollect, and narrate as to the actions of Brooks, based upon the facts in this case, certainly would be pertinent to their ability to do likewise as to the activities of the defendants.

Since at this point in time it is a matter of conjecture to project the precise nature and effect of the testimony that will be adduced upon defense counsel’s cross-examination of the identification witness upon remand, we deem it necessary to consider a question related to our above holding which may come up at the new trial: If during cross-examination the identification witnesses persist in their claim that Joseph Brooks was a participant in the robbery, should the defense be permitted to introduce substantive and competent evidence of Joseph Brooks’ alibi at trial, assuming (without deciding) that a proper evidentiary vehicle exists to carry it into evidence?

The determination of the propriety of cross-examining a witness for the purpose of later contradicting his answers is dependent upon the relevancy of the cross-examination. (People v. Kirkwood (1959), 17 Ill.2d 23, 160 N.E.2d 766, cert. denied (1960), 363 U.S. 847; People v. Sisti (1967), 87 Ill.App.2d 107, 230 N.E.2d 500.) One obvious reason for not permitting cross-examination and correlative impeachment on a matter is that the law does not require a witness to come to trial prepared to sustain every statement he might make regardless of its materiality to the central issues at trial. Furthermore, the courts are wary of confusing the issues before the jury and causing unfair surprise to the witness. (3A Wigmore, Evidence §1019, at 1008-1009 (Chadbourn rev. ed. 1970).) Facts will be considered non-collateral, and hence open to impeachment, if one of two tests is satisfied: the facts are relevant to substantive issues in the case or are independently provable" by extrinsic evidence, apart from the contradiction, to impeach or" disqualify the witness. McCormick, Evidence §47, at 98-99 (Cleary Ed. 1972); Wigmore, supra, §§1020-1024, at 1009-1020.

It is our belief that the evidence of the alibi would be relevant in this case to substantive issues in the case,' namely, the correctness of the identifications of the participants in the robbery. At the very least the conduct of the State regarding the unexplained nolle prosse of Brooks may raise a question as to the correctness of the identification of Joseph Brooks. Although any error in that regard certainly would not be conclusive on the correctness of the identification of defendants, the triers of fact should have before them all revelant evidence bearing on the identifications. Consequently, if the defense is able to utilize proper evi-dentiary procedures in an attempt to place before the triers of fact evidence of Brooks’ alibi upon the witnesses’ persisténcé in their identification of him as a participant in the crime, we are of the opinion that the defense should be permitted to do so.

Since we are remanding the cause, we must comment on several assignments of error. We find no merit in defendants’ contention that they were deprived of due process because they were not immediately taken before a magistrate after arrest. Defendants were taken before a judicial officer in less than a day, and such a time period did not constitute an unnecessary or unreasonable delay. Ill. Rev. Stat. 1971, ch. 38, par. 109 — 1(a); People v. Higgins (1972), 50 Ill.2d 221, 278 N.E.2d 68, cert. denied (1972), 409 U.S 855.

We will next consider defendants’ conténtion that the trial court erred in denying their motion to suppress the evidence. The hearing on this motion was conducted somet'me prior to the motion to the identification testimony arid before the charges against Joseph Brooks had been nolle pressed.

At the hearing, Joseph Brooks testified that on December 19, 1970, at about 4 A.M.,' he was driving an automobile with defendants as his passengers. He was pulled over to the side by the police near Roosevelt Road and Ashland Avenue in the City of Chicago. Brooks got out of the car and went back to tire police car. The policé told him to get in their squad car. Upon being told that he was driving with improper lighting, Brooks was asked to produce h’s driver’s license.' Brooks replied that he was driving on a ticket, which he showed the police officers. While Brooks remained in the squad car and defendants stayed in the parked car, the police forced open the trunk to his car and' saw several types of guns. The officers then ordered defendants out of the car, searched them, and put them in the batik of the police car. The interior of the stopped car Was then searched. Brooks further" testified that he never gave permission for the police to search him or his- car, arid was not shown a search or arrest warrant.

. Dennis Liss, a Chicago police officer,7 testified that while riding on patrol in "a marked squad car, he arid his partner, Officer Patrick Sullivan, stopped a car driven by Joseph Brooks for improper use of bright lights. Brooks and Sullivan exited their respective cars and engaged in a discussion near the rear of the stopped auto. Liss then exited the patrol car on the passenger side. Upon hearing Brooks remark that he did not have a drivers license and upon failing to see Brooks produce a ticket permitting him to drive, Liss glanced toward Brooks’ auto and observed the front seat passenger, later identified as Watkins, reach or bend toward the floor of the auto. Liss proceeded to walk to the front of the car and order Watkins to step out. The officer did not draw his revolver or inform his partner of what he had seen. As Liss opened the door on the passenger side, he stepped to the left and noticed a small-caliber derringer lying on the floor under Watkins’ feet. Liss searched Watkins at the rear of the vehicle while Gary remained in the back seat and while the gun remained on the floor of the front seat. Brooks and Gary were subsequently searched, but nothing was found on their persons. Liss then searched the interior of the car and the car trunk. Liss tugged at the trunk to open it. Inside the trunk the officer found several guns, including a .38-caliber pistol.

Brooks received tickets for improper use of lights and for no driver’s license. The three men were taken to the police station and during processing were noted as robbery suspects.

During the cross-examination conducted by Joseph Brooks’ attorney at the hearing, Officer Liss stated that the movement by Watkins in the car caused him to feel he and Officer Sullivan were in jeopardy. He further asserted that his motivation in going up to Watkins was only to search the suspect, not to arrest him.

Immediately thereafter, upon further examination conducted by the attorney representing defendants, Liss testified that his action in opening the car door had not been prompted by the movement in the car but rather by the knowledge that Brooks did not have a driver’s license. When Liss was confronted at the hearing with his report detailing the reason for his search of the car to be Watkins’ action in “putting an unknown object to the floor,” the witness asserted that the report was wrong. However, Liss denied falsifying the report.

Officer Sullivan testified that he was the driver of the police car which had stopped Brooks’ auto. Brooks’ car had its bright lights on and one front hght off. The officer admitted at the hearing that he did not know what the law is regarding the use of bright fights. After the stop, both Sullivan and Brooks exited their respective vehicles. According to Sullivan, a discussion between the two men ensued near the door on the driver’s side of Brooks’ auto, while Liss approached the vehicle from the other side. Brooks told Sullivan that he did not have a drivers license. When Sullivan told Liss they would have to take Brooks in to the station because the latter did not have a license, Liss ordered Watkins out of the car. According to Sullivan, Liss then either reached down under the seat or looked at the seat and stated there was a gun in the car. The officers then frisked the three men and searched the car, including the trunk.

Defendant Watkins testified that he was sitting in the front seat when the auto was stopped. When Brooks left the auto to talk to the police, Watkins got up on his knees on the front seat to look out the rear window. He observed Liss open the trunk of Brooks’ auto and subsequently order him and Gary out of the auto to be searched.

Defendant Gary testified that when Brooks was asked for a driver’s license, he observed Brooks hand some sort of paper to tire officer.

At the conclusion of all the testimony, the court denied the motion to suppress evidence. At trial, none of the weapons found in the vehicle were received in evidence. However, a .38-caliber pistol found in the trunk was marked for identification as a State’s exhibit and was displayed and identified as a gun “like” the one used in the Sears’ robbery. The court subsequently refused to admit it into evidence.

Constitutional safeguards against unreasonable searches and seizures do not prohibit all searches made without a warrant, but only those which are unreasonable, and the determination of the reasonableness of any given search is dependent upon the facts of a particular situation. Go-Bart Co. v. United States (1931), 282 U.S. 344.

In evaluating the conduct of the police, we begin with a recognition that a valid traffic stop occurred. Although Officer Sullivan admitted to some unfamiliarity with the law on the subject, the undisputed testimony of Officer Liss was that the vehicle was stopped for improper use of bright lights. Moreover, the court could very well accept Officer Sullivan’s testimony that once Brooks stated that he did not have a driver’s license, a custodial arrest situation developed as to Brooks.

It is our belief that the subsequent search of the front of the vehicle was justified. The undisputed facts reveal that the stop for a traffic violation occurred near Roosevelt Road and Ashland Avenue at approximately 4 A.M. In addition to the driver, the vehicle contained two riders. After the stop, the driver exited the vehicle and talked to Officer Sullivan. The other police officer left the squad car and soon thereafter noticed movement from the front seat passenger in the stopped vehicle. Although Officer Liss characterized the movement as a man bending or reaching down, the passenger asserted that it consisted of his kneeling on the front seat and looking out the rear window.

■ Under the circumstances, the trial judge was entitled to believe that Officer Liss became fearful that the passenger in the front seat was armed and that further investigation was warranted. While we recognize the fact that Liss did not draw his gun or warn his partner who was talking to the driver of the car, nevertheless Liss took immediate action in opening the car door and ordering the passenger out.

The defendants make much of Liss’ statement on cross-examination that his motivation in searching the car was the fact that Brooks did not have a driver’s license. While a routine traffic stop will not in and of itself permit a full-blown search of the driver by the police (People v. Jordan (1973), 11 Ill.App.3d 482, 297 N.E.2d 273), in this case the officer also testified that the movement in the car caused him to feel fear for his own and his partner’s safety. We believe the trial court could properly determine that both events motivated the officer’s action.

In our opinion, the search under the seat where Watkins had been sitting was reasonable on the basis of Terry v. Ohio (1968), 392 U.S. 1. In that case, the court was concerned with striking a balance between the safeguarding of a person’s right to privacy and to be free from unreasonable searches and seizures and protecting a police officer from bodily harm and preventing and deterring crime where there is less than probable cause to make an arrest and conduct a full incidental search of a suspect. The court held that, even absent probable cause, where an officer “observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the persons with whom he is dealing may be armed and presently dangerous s * * and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him .’’'Terry v. Ohio, supra, at p. 30.

Although Terry involved a limited intrusion of one’s person, in our view, Terry would not be adverse, in a case having facts as these, to permit an officer to conduct a restricted search of the area of the vehicle in which the suspicious movement was observed. It would appear illogical, if not foolhardy, to say that, where suspicious movement is noted in a particular part of a vehicle, the person , may be asked to step out and bes frisked for the protection of the officer, and then not allow an inspection of the place where the movement was sighted. See United States v. Fern (7th Cir. 1973), 484 F.2d 663.

A more difficult issue is presented concern:ng the propriety of the search of the trunk. However, in our judgment, the search of the trunk was also justified. In Chambers v. Maroney (1970), 339 U.S. 42, the Supreme Court, reaffirming its earlier holding in Carroll v. United States (1925), 267 U.S. 132, held that where a police officer possesses probable cause at the scene of an arrest that the contents of an auto offend against the law and where there exists exigent circumstances, a warrantless search of the auto is constitutionally permissible. While the court in Chambers noted that the standard for searching an automobile without a warrant is somewhat less strict than the one for searching a fixed piece of property, the “word ‘automobile’ is not a tab'sman in whose presence the Fourth Amendment fades away and disappears.” Coolidge v. New Hampshire (1971), 403 U.S. 443, 461-462.

In People v. Brown (1937), 38 Ill.2d 353, 231 N.E.2d 577, the police officers stopped the car because it had no State license plates. They learned that the car also had no city sticker, that the driver had no driver’s license, and that the driver’s alleged car title was incomplete. The officers also noted a set of golf clubs and some clothing in the car for which the driver could not give any explanation. Accordingly the court held that the officers had a valid reason to suspect that the car had been stolen, permitting a search of the trunk. In People v. Carter (1937), 38 Ill.2d 496, 232 N E 2d 692, cert. denied (1968), 391 U.S. 965, police officers had stopped an auto at 3:30 A.M. for failure to have the rear license plate illuminated. After the officers noted that the car was similar to one used in a recent attempted armed robbery, the officers questioned the driver as to his destination. After the driver gave an evasive and illogical answer, he contradicted it with an improbable one. These facts gave rise to reasonable cause to search the car, including the trunk. (Also see People v. Hanna (1969), 42 Ill.2d 323, 247 N.E.2d 610.) At 5 A.M. police officers in People v. Ricketson (1970), 129 Ill.App.2d 365, 264 N.E.2d 220, stopped defendant after they had observed the rear license plate hanging in violation of the state motor vehicle code. After defendant consented to a police officer’s request to look inside a briefcase which was stamped on the outside with initials that did not correspond to defendant’s, guns and burglary tools were discovered. The officers then searched the trunk, which yielded several stolen items. The court sustained the trunk search on the basis of Chambers. Finally, we sustained the trunk search in People v. Jefferies (1972), 6 Ill.App.3d 648, 285 N.E.2d 592, cert. denied (1973), 410 U.S. 932. In that case, a police officer driving at night in an unmarked squad car in an area of several break-ins observed a car bearing one license plate sitting outside an abandoned house with its headlights on. As the officer approached, the driver turned down an alley. When the officer went up to the car and asked the driver for his driver’s license, the driver responded that he did not have any, and he was placed under arrest. The driver also could not furnish registration for the car. After defendant requested his coat from the back seat, an officer handed it to him after searching it and finding a straight blade knife. Several pairs of gloves were also observed on the floor of the car. The officers then searched the trunk and found stolen items. The court sustained the search on the basis that the police possessed facts indicating a more serious crime had been committed.

In the present case, the officer made a valid traffic arrest at approximately 4 A.M. in what may be described as a high crime area in Chicago. After it was determined that the driver had no driver’s license, one of the police officers noticed a suspicious movement on the part of one of the passengers. Upon opening the vehicle door, the officer discovered a gun on the floor of the front seat of the vehicle. Confronted with all these facts, the police officers were entitled to believe that a more serioús crime had been committed. Additionally, the fact that the vehicle was still mobile reflects the presence of exigent circumstances. The search of the trunk was justified.

The final issue that must be resolved is the propriety of the action of the trial court at the hearing on the motion to suppress identification testimony in sustaining all objections by the State to defense questions regarding the opportunity of the identification witnesses to observe defendants during the course of the crimes. This was error. Of itself, it would not constitute reversible error. (See People v. Steel (1972), 52 Ill.2d 442, 288 N.E.2d 355.) However, since the cause is being remanded, should the defense again seek to suppress the identification testimony, the trial court is directed to permit the defense to conduct a reasonable inquiry of the witnesses concerning their opportunity to observe the defendants during the occurrences.

Because of our holdings on the foregoing issues, it is unnecessary to consider the other issues advanced by defendants.

For the reasons stated, the judgments of the circuit court of Cook County are reversed, and the causes are remanded for further proceedings not inconsistent with the holdings of this opinion.

Judgments reversed and remanded.

DEMPSEY and MEJDA, JJ., concur.