author: Mr. JUSTICE HALLETT

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ronald Jackson et al., Defendants-Appellants.
    (No. 56515;
    First District (1st Division)
    November 27, 1974.

      James J. Doherty, Public Defender, of Chicago (Stanton Bloom, Assistant Public Defender, of counsel), for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel, and Nicholas Iavarone), for the People.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

Defendants were convicted of armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18 — 2) and each was sentenced to serve from 3 to 7 years in the penitentiary. They appeal, contending (1) that each was denied due process of law when the trial court denied their motion to suppress the in-court identification testimony; (2) that the State failed to prove them guilty beyond a reasonable doubt; (3) that defendant Jackson was denied due process of law by the prosecutors disclosure of the details of Jackson’s pretrial plea-bargaining negotiations; (4) that defendant Dunbar was denied due process of law when the trial judge denied his motion to sever his trial from that of defendant Jackson following the disclosure to the jury of Jackson’s pretrial plea-bargaining negotiations; (5) that each was denied due process of law when the prosecutor tendered police reports and grand jury minutes to defense counsel in the presence of the jury during cross-examination of the complaining witness; and (6) that each was denied due process of law by the prosecutor’s closing argument to the jury. Defendants ask us to reverse outright or to reverse and remand for a new trial. For reasons which follow, we affirm.

On January 23, 1970, the complainant, Frank Zmigrodski, was repairing an automobile parked outside the office of his used car lot located at 1719 North Western Avenue in Chicago, when he was approached by three men. He recognized one of them as one who previously had inquired with respect to the purchase of an automobile. The man suggested that the four men retire to his office and, when they did so, the three men attacked him. Two of them held his arms while the other pummeled his face and one of them produced a knife. They robbed him of approximately $65, a silver wristwatch, and a bottle of whiskey. They then proceeded to rip the telephone wires from the wall and to wrap them around the victim’s limbs.

The victim freed himself and started across the street to get to a telephone and summon the police. In the street, he met a passing motorist, Herbert Warden, who inquired as to his hurry. A few short moments before, Warden had seen a trio behaving in a suspicious manner — running down the middle of a nearby street. There was snow on the ground from a recent snowfall, and he had seen the three men walking in the tracks left by passing automobiles. One of them, who was dressed in green pants, apparently unaware of the existence of Wardens car, slipped when he suddenly saw it and stumbled against it. He placed his hand upon the headlight to regain his balance and continued on his way. Another of the three slipped and fell in the snow. He got up and joined the other two, whereupon they resumed their journey down the street. The motorist continued until he noticed the victim. Putting three and one together, he questioned the victim and upon being informed of the circumstances of the robbery and a description of the three, he informed the victim that he had seen the men and would return to where he had seen them and follow them. He left and the victim then called the police.

The motorist soon located the three men near where he had last seen them. They were still “walking fast, looking back.” He recognized the one in green pants who had stumbled against his car. He noted that another of the three wore red pants. The third was wearing dark clothing. He attempted to follow them but they noticed his presence and he returned to the scene of the crime.

The police were there already and he informed them of the above. He then directed them to where he had last observed the trio. En route to the scene, they broadcasted a description of the three over the radio to other patrolling policemen, one of whom noticed three men standing in an alley near the place described. One of the three wore red pants. Another wore green pants. The third wore dark clothing.

The three men were located in a T-shaped alley and they tried to escape, but the one in red pants and the one in green pants were captured and arrested. The man in red pants was the defendant Jackson and the man in green pants was the defendant Dunbar. They were taken to headquarters and searched.

A knife and $2 were found on Jackson. Dunbar was found to have a silver wristwatch, some money, and a bottle of whiskey. They were then placed in a lineup. The victim and Warden were asked by police to view the lineup separately. Each saw four black males. Two were young. One wore red pants. Another wore green pants. The victim identified Jackson and Dunbar as two of the three men who robbed him. Warden also identified Jackson and Dunbar as two of the men he had followed. The victim subsequently identified the wristwatch police had found in Dunbar’s possession as the one which had been stolen from him.

Defendant Jackson made a pretrial motion to suppress any in-court identifications of him stemming from the lineup on the ground that the lineup was unnecessarily suggestive. Dunbar did not join in the motion. The motion was denied.

At trial defendant Jackson testified that he had been arrested while on his way with Dunbar to Jackson’s brother’s house after having unsuccessfully stopped to see Dunbar’s girlfriend, who was not at home. He stated that he carried a knife for protection and that his head was bandaged and his arm was in a sling when arrested. Dunbar also testified. He corroborated Jackson’s story respecting their whereabouts at the time of the crime. He added that the watch allegedly stolen by him was not the watch taken from him by the constables.

In rebuttal a police officer testified that it was the same watch and that he remembered' no head bandage or sling worn by Jackson at the time of the arrest.

The jury found both men guilty and they were sentenced to 3 to 7 years in the penitentiary.

The first issued' raised by the defendants pertains to whether they were denied due process of law when the trial court denied Jackson’s motion to suppress identification testimony. We shall consider this issue only with respect to defendant Jackson since defendant Dunbar never made a motion to suppress of his own accord) never joined in Jackson’s motion, and never objected at trial to the in-court identification. Therefore, this argument is waived as to Dunbar. People v. Thomas (1971), 132 Ill.App.2d 198, 201, 267 N.E.2d 703.

Jackson contends that his motion should have been granted because the lineup unnecessarily suggested to identifying witnesses that he was the culprit. He argues that he (and Dunbar) was the only one exhibited to the witnesses in clothing allegedly worn by the culprit and that he (and- Dunbar) was the only one exhibited who was approximately the age of the described culprits. He maintains that as a result, the lineup directly resulted in a mistaken identification. We disagree.

The burden is on the defendant to establish that within the totality of the circumstances the lineup was so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable mistaken identification (Stovall v. Denno (1967), 388 U.S. 293, 301-302, 18 L.Ed.2d 1199, 87 S.Ct. 1967; Neil v. Biggers (1972), 409 U.S. 188, 196, 34 L.Ed.2d 401, 93 S.Ct. 375; People v. Weathers, 23 Ill.App.3d 907, 320 N.E.2d 442.) Should defendant succeed in meeting this, burden, then the in-court identification would be held inadmissible. However, substantial differences in age and appearance between suspects and other exhibited in a lineup do not in themselves establish that a lineup was unnecessarily suggestive. Such differences affect only the credibility of the identification; not its admissibility (People v. Norfleet (1972), 4 Ill.App.3d 758, 764, 281 N.E.2d 761; People v. Terczak (1968), 96 Ill.App.2d 373, 378, 238 N.E.2d 626.) In any case, even if the lineup is found to have been invalid, the identification in court may still be admissible provided that the State establishes by clear and convincing evidence that the identification is based on an observation independent of and prior to the tainted lineup. People v. Fox (1971), 48 Ill.2d 239, 245, 269 N.E.2d 720; People v. Weathers, 23 Ill.App.3d 907, 320 N.E.2d 442.

In the present case there are two reasons why the identification was admissible. First, the differences between the defendant and others in the lineup were not of the sort which affect admissibility of the identification. They affected only the credibility of the identifying witness’ testimony. We have examined the record carefully and have found that defense counsel quite ably spotlighted the problems with the lineup identification. The jury was properly informed and left to assess the credibility of the defendant’s identification and to determine how much weight it was to be given.

Second, the State met its burden of showing an independent origin to the in-court identification. The record shows that both identifying witnesses had ample opportunities to observe the culprits for several minutes under conditions of good lighting. The victim first saw a man he identified as Jackson when that man inquired prior to the robbery with respect to possibly purchasing an automobile. He saw that man again and another, whom he identified as Dunbar, at close range while they robbed, pummeled and tied him. Warden also saw them at very close range when one slipped and fell against his car (Dunbar) and the other slipped in the snow near the car (Jackson). He also followed them for several blocks. Both witnesses provided the police with detailed descriptions of the trio. Where there has been ample opportunity to observe the culprits at close range under good lighting and detailed descriptions of the culprits are given to police, notwithstanding a tainted lineup, there is a sufficient independent origin to the in-court identification to render that identification admissible (see People v. Cook (1969), 113 Ill.App.2d 231, 237-238, 252 N.E.2d 29). It follows that the trial court properly denied Jackson’s motion.

Defendants next contend that they were not proven guilty beyond a reasonable doubt. While it is true that the identifications in court were not absolutely positive, it is also true that the trial took place some 14 months following the robbery and that at the trial the identifying witnesses testified that they had positively identified the defendants on the day of the robbery. Thus, while the passage of time may have somewhat clouded their memories, nevertheless, they did recall positively identifying the defendants several hours following the crime when their memories were fresh and vivid. Further, the men strongly resembled descriptions given to police of the robbers as to age, race, sex, build, weight, clothing worn, and physical characteristics. They also were arrested not far from the scene of the robbery and not long after it. There was also testimony that a watch stolen by the culprits from the proprietor was found later that day in the possession of Mr. Dunbar. Dunbar also was found with a bottle of whiskey. Jackson was found with a knife (the proprietor was held up with a knife). Given the nature of all the testimony, we conclude that the jury, whose job is to weigh the credibility of witnesses and determine the facts, properly concluded thát the defendants were guilty. Indeed, we hardly can conceive how they could have concluded otherwise. Since the findings were not palpably erroneous, we decline to substitute defendants’ suggested conclusion. People v. Hyman (1972), 8 Ill.App.3d 382, 385, 290 N.E.2d 627; People v. Werhollick (1974), 22 Ill.App.3d 810, 816, 317 N.E.2d 652.

The third issue raised by this appeal concerns defendant Jackson who maintains that he was denied due process of law when the prosecutor disclosed to the jury details of his pretrial plea-bargaining negotiations. It would, of course, be prejudicial to a defendant for the jury to be informed of his plea-bargain negotiations (Ill. Rev. Stat. 1971, ch. 110A, par. 402(f); see also People v. Haycraft (1966), 76 Ill.App.2d 149, 154, 221 N.E.2d 317) since the jury might then conclude that he must be guilty based on the suspicion that an innocent defendant would not bargain with the State’s Attorney. However, where, as in this case, defendant himself induces the error by testifying in response to his counsel’s questions that he was offered a plea bargain but refused it, we hold that the prosecutor is justified in inquiring further into the negotiations. Otherwise, the jury might be left with the idea that defendant’s refusal to plea bargain with the prosecutor was proof of his innocence, which is another non sequitur. Defendant cannot claim error when he himself induces it. People v. Stock (1974), 56 Ill.2d 461, 472, 309 N.E.2d 19; People v. George (1971), 49 Ill.2d 372, 379, 274 N.E.2d 26; People v. Weathers, 23 Ill.App.3d 907, 320 N.E.2d 442.

The fourth issue on appeal concerns the defendant Dunbar. He contends that he was denied due process of law when the trial court denied his motions for mistrial and severance following the introduction of evidence pertaining to Jackson’s pretrial plea-bargaining negotiations. Dunbar speculates that what the jury would likely infer concerning Jackson’s guilt from the prosecutor’s comments, they would similarly infer concerning his guilt. We disagree.

Granting a mistrial and ordering a severance are matters within the sound discretion of the trial court and are usually granted only when the defenses of two or more defendants are shown to be antagonistic (People v. Yonder (1969), 44 Ill.2d 376, 386, 256 N.E.2d 321; People v. Earl (1966), 34 Ill.2d 11, 13, 213 N.E.2d 556.) We have examined the record and have found no evidence of antagonism. First, and most important, on cross-examination by the prosecutor, Jackson denied initiating or accepting a plea-bargain offer. Thus, there was no prejudice to Dunbar as might have been the case if Jackson had initiated or accepted the offer thereby indicating his guilt (see People v. Miller (1968), 40 Ill.2d 154, 158, 238 N.E.2d 407). Second, the jury was carefully instructed to consider the plea-bargain discussion only with respect to Jackson. Since there was no guilt by association conceivably involved here due to the plea-bargain revelation and since there were careful limiting instructions to the jury, we hold that the trial court did not abuse its discretion in denying Dunbar’s motions.

The next issue concerns both defendants. They maintain that they were denied due process of law when the prosecutor tendered police reports and grand jury minutes to defense counsel in the presence of the jury during cross-examination of the proprietor. The reports and minutes contained previous statements by the proprietor concerning the crime. This practice was condemned in People v. Beard (1966), 67 Ill.App.2d 83, 214 N.E.2d 557. The court held there that an accused is entitled to any relevant non-privileged statements concerning commission of the crime given by witnesses to police investigators or representatives of the State’s Attorney prior to trial. Defense counsel might then be able to use the statements to aid him in preparing the trial and, should the occasion arise, use them to impeach the testimony of those witnesses. However, to tender the statements and reports to defense counsel while defense counsel is cross-examining a witness in front of the jury is unfair to a defendant since the jury might presume that the statements and reports corroborate the witness’ testimony if defense counsel does not then utilize them to impeach the witness.

However, there is an exception to this rule. This court stated in People v. Scott (1972), 4 Ill.App.3d 279, 285, 280 N.E.2d 715:

“In the instant case, while it was improper for the State’s Attorney to have tendered the statements in the presence of the jury we think that defendant was not prejudiced thereby. The record reveals that it was defense counsel who first called the jury’s attention to the existence of the documents during his cross-examination of Mrs. Marbury prior to the complained of tender by the State’s Attorney. No argument was made to the jury by the State upon the inferences which might be drawn from the failure of the defense to present the statements in evidence * * * [W]e find that the incident did not substantially affect the right of defendant to a fair trial. See People v. Burks (1969), 105 Ill.App.2d 112.”

This is precisely what occurred in the present case. The reports and statements were tendered at the insistence of defense counsel. Further defense counsel then attempted to utilize them for impeachment purposes. Finally, he also requested that the reports be given to the jury. Under these circumstances, we hold that there was no prejudice to defendants.

The final argument is that the assistant State’s Attorney exceeded the boundaries of fair commentary during his closing argument to the jury, thereby depriving defendants of due process of law. The argument was improper but the defendants were not substantially prejudiced by the remarks in view of the overwhelming evidence of their guilt which, as we previously indicated, was established beyond a reasonable doubt. (People v. Clark (1972), 52 Ill.2d 374, 390, 288 N.E.2d 363; People v. Weathers, 23 Ill.App.3d 907, 320 N.E.2d 442.) Nevertheless, we think a discussion of the prosecutor’s argument is merited in view of our Supreme Court’s recent decision in People v. Butler (1974), 58 Ill.2d 45, 317 N.E.2d 35.

In one instance, the prosecutor accused Jackson of having “rehearsed” and manufactured his testimony at the instruction of his attorney, thereby inferring that Jackson had lied to the jury when he denied guilt. This was improper since it was merely an expression of the prosecutor’s opinion, totally unsupported by any evidence (People v. Jackson (1966), 35 Ill.2d 162, 171, 220 N.E.2d 229, citing with approval People v. Williams (1962), 26 Ill.2d 190, 193, 186 N.E.2d 353.) It was also improper because it suggested that defense counsel had resorted to trickery and deception to free his client. People v. Savage (1934), 358 Ill. 518, 522, 193 N.E. 470; People v. Freedman (1954), 4 Ill.2d 414, 422, 123 N.E.2d 317; People v. Stewart (1973), 12 Ill.App.3d 226, 231, 297 N.E.2d 391.

During the final argument, he also stated:

“Jackson now tells you that the place where we were for ten minutes [sic] was at Dunbar’s girlfriend’s house, Francine Franklin, at 2216 North Division. Well, for heaven’s sake that is our case, that is right there, Francine Franklin, she is the key to this case. Francine Franklin is the person with whom these two innocent people were because if they spent ten minutes with Francine they couldn’t possibly have committed this crime, not by any stretch of the imagination. Wouldn’t it be nice to hear from Francine # '# * »

We find this commentary uncalled for. It is improper for the prosecutor to comment" on defendant’s failure to call witnesses where the comment suggests that the witness would have testified unfavorably to defendant and the witness is as accessible to the State as she would be to the defendant (People v. Munday (1917), 280 Ill. 32, 42, 117 N.E. 286). Here, the State could have produced Ms. Franklin at any time if the prosecutor had so desired. He did not. The reason is simple. The defendants had not proffered the defense of alibi. It will be recalled that" they testified only to having been at Ms. Franklin’s home looking for her. They never saw her or gained admittance to her home because she was not there. She therefore could not confirm nor deny defendant’s presence at her home. Thus, her testimony would have been totally irrelevant. Knowing this, the prosecutor nevertheless sought to leave the jury with the impression that Ms. Franklin, if she had testified, would have testified unfavorably to the defendants. This was improper.

In People v. Butler (1974), 58 Ill.2d 45, 317 N.E.2d 35, the supreme court condemned the prosecutor where he had cross-examined a witness solely for the purpose of prejudicing the jury against the defendant because of defendant’s somewhat questionable moral habits. The court indicated that defendant’s living arrangements with certain women to whom he was not wed had absolutely nothing to dó with whether defendant was guilty of the offense charged (murder). The court acknowledged that mistakes will happen in any trial, but it categorically rejected tactics utilized by the defense or prosecution calculated to destroy the credibility of witnesses where such attacks were either irrelevant to the issues at trial or wholly unsupported by any known evidence. The court concluded,

“* * * While we are reluctant to reverse judgments where such improprieties seem not to have affected the verdicts, our prior criticisms seem to have had little effect so long as the judgments are not reversed. Consequently, we have concluded that disciplinary action against offending counsel may be the only effective deterrent. So that counsel may be forewarned, we here announce our intention, in reviewing future trials, to refer to the Disciplinary Commission for appropriate action those members of the bar-responsible for conduct of the type herein referred to.” (58 Ill.2d 45, 52.)

This court took the same view with respect to closing arguments of counsel in People v. Weathers, 23 Ill.App.3d 907, 320 N.E.2d 442.

We therefore affirm the judgments in all respects.

Judgment affirmed.

EGAN, P. J., and BURKE, J., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE EGAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Freddie Martin, Defendant-Appellant.
    (No. 59221;
    First District (1st Division)
    December 2, 1974.
    Edward M. Genson, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Michael J. Polelle, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

The defendant, Freddie Martin, was convicted of robbery after a bench trial and sentenced to a prison term of 5 to 10 years.

On October 28, 1971, Mary Prendergast was taking care of her daughters children at 1348 West 97th Street in Chicago. Around 11:30 A.M. she answered the front door and saw a black male, about 22 or 23 years of age with bushy hair, of medium height and slender build, wearing red pants and a red shirt. At the trial she identified that man as the defendant. He asked to use a telephone to call an ambulance because there had been an accident and a lady was lying in the street bleeding badly. She let him in, and he appeared to use the telephone for an ambulance, giving the address of the accident. He asked, and was permitted, to use the bathroom. After stepping from the bathroom and looking down the hallway, he walked toward the front door and then asked if he should call the police too. She agreed and looked up the number for him. While she was looking in the directory, the phone rang. The call was from her daughter, whom she told that there had been an accident and asked to call back. The defendant used the phone again, apparently calling the police and reporting an accident at 97th and Loomis. After this call, the man asked Mrs. Prendergast if he could show her where the injured lady lived. As he proceeded to point to the house, he turned and faced her saying, “Now, this is a robbery.” He threw his arm around her neck, took her down the hallway to the back bedroom and told her to lie down and not get up. He then went through the house, searching all the rooms and drawers. He returned to her and asked where the money was. As he did this, the phone rang but was left unanswered. She told him that she didn’t live there and that her daughter’s bedroom was the middle bedroom. He then went to that room to search. The phone rang again and was again left unanswered. During this continued searching, a neighbor, Mrs. Boyland, came to the front door and called out for Mrs. Prendergast. Thereafter, the man apparently left. Mrs. Prendergast went to the front door and told Mrs. Boyland of the robbery. Mrs. Boyland had been summoned by Mrs. Prendergast’s daughter by telephone. The man was in the house about a half hour, and it was an unusually bright day.

Mrs. Howland, Mrs. Prendergast’s daughter, came home and found that her daughter’s General Electric phonograph was missing, as was Mrs. Prendergast’s purse. At trial, she identified her daughter’s portable General Electric phonograph and said she recognized it from a certain chocolate mark and a slash on the inside cover.

A neighbor, James Johnson, had come home around 11:30 on the morning of October 28 and noticed an unoccupied car parked with its motor running. After watching the car for several minutes, Johnson, who was a security guard for Illinois Bell, walked by the car and wrote down the license number and make and year of the car. He testified that it was a light-blue or green Pontiac with license PT221. He watched for several more minutes and saw a man come out from between the houses and get into the car and drive off. Johnson was unable to see the man’s face but he'described him as a small, thin, black man with a broWn case under his arm. He had a" conversation with Mrs. Prendergast arid Mrs. Boyland and gave one of them the piece of paper on which he had written the license number and the description of the car. At the trial, he identified pictures of the defendant’s automobile as being the same car he had seen at the scene of the robbery.

The police arrived, and after receiving the description of the offender and the license number, patrolled the area in search of the vehicle. Á registration search by Officer Walsh was made in an attempt to establish ownership of the plates by the license number, but this attempt failed to show"' an owner. It was later established, after the defendant was arrested, that the plates were registered to a “Fred Williams.” After approximately 30 minutes, Officers Schwartz and Walsh received a radio communication directing them to proceed to 89th and May Street where other officers had located a 1963 blue Buick Wildcat, license PT221, in the alley behind 8840 South May Street. Walsh recalled that the vehicle was the same one he had seen several weeks earlier when Sergeant James Gorman had called for assistance in a street stop. On that occasion they had questioned the driver, whom Walsh recalled as giving the name, Freddie Martin. He had been stopped for failure to have a city vehicle license. Sergeant Gorman had also summoned a Lieutenant Collins in an effort to see if Freddie Martin fit the description of a man involved in a recent homicide. After the officers decided not to arrest Martin at that time, the lieutenant ordered Walsh to get a picture of Freddie Martin and note on the back his name and address for their file. Walsh obtained this picture 2 or 3 days later from Records and Identification at Police Headquarters and kept it in the files at the 6th District. Walsh then proceeded to the 6th District Station and obtained the address, 8840 South May Street, from the back of Freddie Martin’s picture. A description of Freddie Martin and a notation “1963 Buick” was also on the back of the picture. Walsh then returned to. the location of the car behind 8840 South May Street The defendant was arrested in his bedroom, and the police recovered, 10 feet- from the defendant, a brown portable phonograph, which was later identified by Mrs. Howland.

The defendant contends that the phonograph should have been suppressed for a number of reasons: (IJ- The police did not have probable cause to make the arrest; (2.) they should have obtained a warrant; and (3) the search was too broad.

The evidence establishes that a robbery had in fact been committed; the police had a description of the offender which included the fact that he was wearing red pants and they had been informed that a brown phonograph had been taken; they had a description of a car and a license number that they could reasonably believe was used in the robbery; later investigation established that the car had been driven on a previous occasion by Freddie Martin and the car was parked behind Freddie Martins home; they went to Freddie Martins room and saw that he fit the description given by Mrs. Prendergast, including the color of his pants; and, finally, they saw a brown phonograph 10 feet from the defendant. This was a strong case of probable cause, and we agree with the trial court’s conclusion that “it would have been a violation of the oath of the officers if they had not so arrested him at that time.”

In People v. Johnson, 45 Ill.2d 283, 287-88, 259 N.E.2d 57, two robbery victims gave descriptions including approximations of height, weight, age and a speech impediment. When a second robbery occurred 3 months later, the police were given the name and address of a suspect and placed the building under surveillance. The police saw the defendant enter the apartment. When he came to the door in response to their knock, they noticed that he fit the description given and placed him under arrest. A subsequent search of the apartment disclosed stolen property. To the defendant’s claim that the evidence was “tainted by an unlawful invasion of his apartment” since they did not have a warrant, the court said in upholding the search:

“Defendant argues, incorrectly, .that a warrantless entry is permissible only in hot pursuit, or in any emergency when it is impractical to obtain a warrant. We agree that it is desirable for an arrest to be based upon a warrant when the circumstances permit, and such action here would have eliminated some of the problems now before us. At the same time, however, we recognize that an arrest may be lawful when based upon probable cause, notwithstanding the absence of a warrant. [Citation.]” (45 Ill.2d 283, 287-88.)

We believe the facts in this case are even stronger than Johnson, and the police could not “have been expected to bow out and return to headquarters to procure a warrant.” United States v. Harris (D.C.C. 1970), 435 F.2d 74, 80.

In his contention that the search was. too broad in scope, the defendant relies primarily on Chimel v. California, 395 U.S. 752, 23 L.Ed.2d 685, 89 S.Ct. 2034. The rule of Chimel has been paraphrased in People v. Williams, 57 Ill.2d 239, 243, 311 N.E.2d 681: “[A] warrantless search incident to an arrest may be made of the defendant’s person plus the area within his immediate control from which he might obtain either a weapon or an evidentiary item. [Citation.]” In Williams, the defendant was arrested in the kitchen area of his apartment. When the police made the arrest they had their guns drawn. After arresting and searching the defendant, one of the officers reached into a bag on an open kitchen shelf and found the defendant’s gun. The bag was estimated to be between 7 and 10 feet away from where the defendant was standing. The court, in upholding the search and discussing the application of Chimel to other cases, concluded that results had not been entirely consistent and added (at page 246):

“These cases make it clear, we think, that there can be no hard and fast rule defining the permissible scope of a warrantless search incident to an arrest. Certainly an arbitrary limitation to a certain number of feet would be unsatisfactory. Whether the search is reasonable must depend on the particular facts of the case. Among the factors to be considered in this case are the knowledge that the suspect was armed, the presence of another person who might attempt to assist the suspect, the accessibility of the searched area, and the physical control of the situation exercised by the police.”

In People v. Perry, 47 Ill.2d 402, 263 N.E.2d 330, the officers broke down a door and entered a room 10' by 12' in dimensions. The defendant was standing near the door about 8 feet from the window and had put something in or taken something out of the top dresser drawer. The officer searched the defendant and took him into the corridor. They continued the search of the room and found a gun in the partially opened dresser drawer and some shells and a purse belonging to a woman who was also in the room. The court held that the search did not violate the rule of Chimel “since it was within the area from which defendant could have obtained a weapon or something that could have been used as evidence against him.” Judging from the standards of Williams and Perry, we deem that the search was within an area from which the defendant could have obtained something that could have been used as evidence against him and the trial court did not err in denying the motion to suppress the phonograph.

The defendant, in his contention that the court erred in denying his motion to suppress the in-court identification, advances the argument that it was based on an improperly suggestive lineup because: (1) The defendant was the only man in the lineup wearing red clothes similar to those worn by the robber and noted by Mrs. Prendergast; and (2) Mrs. Prendergast was told that the police had a “suspect” in custody before viewing the lineup. The defendant’s motion to suppress evidence was based solely on an allegedly improper arrest. He never argued that the lineup procedures were improper. Although we believe he has waived the argument here (People v. Brown, 15 Ill.App.3d 606, 304 N.E.2d 662 (abstract opinion).) Nonetheless, we will address ourselves to the question.

Immediately after his arrest the defendant was taken to the police station wearing only the reddish colored pants that he had on at the time of his arrest. His sister testified that his wife brought a shirt and some underclothes to the defendant in the station around 2 P.M. The defendant was identified by Mrs. Prendergast in a lineup conducted at approximately 3 P.M. The lineup was held with five male Negoes between the ages of 18 and 22.

In determining whether an identification procedure was so unnecessarily suggestive as to warrant suppression, that procedure must be considered in light of the totality of the facts and circumstances surrounding the particular confrontation between the witness and defendant. (People v. Blumenshine, 42 Ill.2d 508, 250 N.E.2d 152.) Mrs. Prendergast had been in the man’s presence for approximately one-half hour. She had a better than adequate opportunity to observe his appearance. She gave a description that included his approximate age, height, weight, build, complexion, hair style, and clothing. The description apparently fit the defendant. The identification took place approximately 3Vz hours after the robbery. And there is nothing in this record to indicate that the defendant’s identification by Mrs. Prendergast was suggested by his clothing. Moreover, lineup identifications have been upheld where the defendant was the only person wearing an article of clothing similar to one worn by the person who had committed the crime. People v. Bates, 9 Ill.App.3d 882, 293 N.E.2d 358; People v. Jones, 7 Ill.App.3d 820, 288 N.E.2d 918; People v. Shaw, 6 Ill.App.3d 366, 286 N.E.2d 3.

We must also reject the defendant’s argument that the lineup procedure had been indelibly tainted by the fact that Mrs. Prendergast had been told the police had a “suspect.” What person called to view a lineup would not conclude that the police had some idea an individual in the lineup might be the offender? Surely no one could reasonably imagine that the police were going to the trouble of bringing the witness down to view a group of people that they had gathered together indiscriminately and with no idea whatsoever of the possible involvement of any individual in the line. The same argument was raised and rejected in People v. McMorris, 17 Ill.App.3d 364, 367, 308 N.E.2d 291, and People v. Del Genio, 10 Ill.App.3d 437, 294 N.E.2d 78.

In addition to the positive identification of Mrs. Prendergast, the court had the benefit of a lineup photograph which substantially assisted “judicial appraisal of the integrity of the identification process.” (People v. Pierce, 53 Ill.2d 130, 136, 290 N.E.2d 256.) For these reasons we conclude that the court did not err in permitting evidence of tire lineup identification and the in-court identification of Mrs; Prendergast.

During the cross-examination of Officer Walsh, the following occurred:

“A. We took him right out. Officer Schwartz and I took him out.
Q. Put him in the car?
A. Yes, sir.
Q. Took him to the station?
A. Yes, sir.
Q. Did you wait for his clothes?
A. No, sir.
Q. Do you know who brought the clothes? ’
The Court: Well, Mr. Karlin [defense attorney], what difference does it make? You went over that once. Miss Martin said that the clothes were taken there by his wife. And what difference does it make who took him his clothes. He was taken out without clothes.
Mr. Karlin: There is one difference in the fact that the clothes were taken out by the police officers for identification. They picked those clothes that would fit the description.
The Court: Well, you can ask him if he did that.
Mr. Karlin: Did you pick out the clothes from the closet?
A. No, sir.
Q. Do you know who did?
A. No, sir.”

The defendant now contends that the trial court’s intervention consti-" tuted “fatal error.” A trial judge is not a mere moderator or referee (People v. Santucci, 24 Ill.2d 93, 98, 180 N.E.2d 491); he has a wide discretion in controlling the proceedings before him. He may, of his own motion, exclude irrelevant matter and confine the trial to the issues.' (Peyton v. Village of Morgan Park, 172 Ill. 102, 104-105, 49 N.E. 1003.) He is, of course, always subject to 'the requirements that he afford both sides the right reasonably to present their cases and that he refrain from adopting a partisan role. Wé judge that the trial court did not abuse its discretion by interjecting the questions as he did. The defendant did establish by his own witness that his clothes were brought to the police station'by his wife. And it is clear from the officer’s testimony before the court interrupted his cross-examination, that the officer did not himself take the clothes and was not in a position to know who did. The defendant testified that police officers went into his closet and removed .'a burgundy knit shut, a blue jacket and a páir of boots'. He contends that if the police took the burgundy shirt, which was like the one worn by the robber, it would show a deliberate act on the part of the police that made the lineup suggestive. The answer to that contention is that the trial judge apparently did not believe that aspect of his testimony. The defendant now contends that the testimony that his wife brought the clothes to the station was hearsay. He did not take that position at the trial, as his own examination of his own witness discloses when his attorney examined his sister:

“Q. Do you know what they took?
A. They had this record playér.
Q. Anything else?
A. That is all that I saw them take.
Q. I see. When did you next see Freddie?
A. Later on that evening when we went to the police station to take him a coat.
Q. Was Freddie furnished any clothing?
A. Well, Gwen [defendants wife] took him a shirt and some underclothes when my mother got there.”

The defendant’s final contention is that he was not proved guilty beyond a reasonable doubt. The only question in the evidence was the model of the car. Johnson testified that he wrote the make and model with the license number on a piece of paper. The police testified that the piece of paper had “1963 blue Buick Wildcat” on it. Johnson testified, not to what he put on the paper, but to his recoUection of the make and model. His recollection was a light blue or green 1961 or 1962 Pontiac. However, he did identify a picture of the defendant’s car, which was a ■ 1963 Buick Wildcat, as the car he saw. The court found that the police version was correct. The only plausible explanation is that Johnson’s trial recoUection was incorrect. The positive identification of Mrs. Prendergast might be enough, standing alone; but, when added to her testimony are the identification of his car at the scene, and, most important, the stolen property in his room, we deem the proof overwhelming. For these reasons the judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE and GOLDBERG, JJ., concur.


author: Mr. JUSTICE STAMOS

text:
    Greyhound Lines, Inc., et al., Plaintiffs-Appellants, Cross-Appellees, v. The City of Chicago, Defendant-Appellee, Cross-Appellant.
    (No. 59298;
    First District (2nd Division)
    November 26, 1974.

      Edward G. Finnegan, of Chicago, for appellant Greyhound Lines, Inc.
    George P. Doyle of Indianapolis, Indiana, and Wilson & Mcllvaine, of Chicago, for appellants Nik-O-Lok Co. and Universal Sanitation, Inc.
    Richard L. Curry, Corporation Counsel, of Chicago (Daniel Pascale and Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellees.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

. Plaintiffs Greyhound Lines, Inc., the Nik-O-Loc Company and Universal Sanitation, Inc., filed a complaint in the circuit court of Cook County seeking a declaratory judgment that a municipal ordinance of the city of Chicago be declared unconstitutional and requesting a preliminary injunction enjoining the enforcement of the ordinance. The preliminary injunction was denied and a full hearing on the merits was conducted. In a written opinion, the trial court declared the ordinance constitutional in all respects but found that compensation was due plaintiffs Nik-O-Loc and Universal and reserved jurisdiction to determine the amount. Plaintiffs appeal, challenging that part of the order finding the ordinance constitutional. Defendant, in its cross-appeal, challenges the finding that compensation is due.

On March 14, 1973, the Chicago City Council adopted an ordinance banning pay toilets in all municipal buildings, and buildings open to. serve the public. That ordinance is now section 5.11 of chapter 66 of the Chicago Municipal Code. The relevant parts of that ordinance provide as follows:

“It is prohibited to charge any sum of money for the use of any toilet facility in any municipally owned building or any building that is open to accommodate or serve the public.
As used herein “building that is open to accommodate or serve the public’ shall include the following:
Hotel, motel, inn, department store, restaurant, cafeteria, lunchroom, lunch counter, soda fountain, tavern, motion picture house, theatre, concert hall, sports arena, stadium or other place of exhibition or entertainment, airport, railroad station or terminal, bus station or terminal, clothing store, food store, gas station, garage, bank or office building.”

Plaintiff Greyhound owned a bus terminal which contained a number of toilets most of which had coin locks on the stall doors prior to passage of the instant ordinance. Plaintiff Nik-O-Loc was a corporation manufacturing and leasing coin locks for use by its customers. Plaintiff Universal was a corporation which provided both coin locks and a sanitation service to its customers. On the day before the ordinance was to become effective, all plaintiffs brought the instant suit.

At trial, plaintiffs presented testimony to establish that toilets with coin locks were cleaner and more sanitary, better equipped, less prone to vandalism, a deterrent to crime, and safer. The city’s evidence established that other Chicago ordinances required a certain minimum number of toilets in all buildings depending on the type and size of the building. Other city officials testified that they were required to inspect restrooms in certain public and private buildings.

The lower court declared the ordinance constitutional but found that Nik-O-Loc and Universal would suffer the loss of their investment in their locks and impairment of their contractual rights and thus were entitled to compensation.

Although both plaintiffs and defendant have briefed and argued numerous separate issues, it can fairly be said, that the plaintiffs’ appeal presents two related questions for review. Can the city properly legislate in this area, and, if so, is the instant ordinance a reasonable exercise of that power? The city’s cross-appeal presents a single issue for review. Does the ordinance result in a taking of property without due process of law so as to require an award of compensation?

It must first be determined whether the challenged ordinance is a permissible exercise of authority by the city. By virtue of the 1970 Illinois Constitution, Chicago is a home rule unit. As such, Chicago has been granted the power “to regulate for the protection of the public health, safety, morals and welfare.” (Ill. Const, art. VII, § 6(a).) Since a system for waste disposal and the regulation of lavatories are obviously related to the public health (see Chicago Allis Manufacturing Corp. v. Metropolitan Sanitary District, 52 Ill.2d 320, 288 N.E.2d 436), the power to enact the instant ordinance is constitutionally authorized. However, even assuming arguendo the absence of the constitutional grant of power, the legislature has specifically delegated such authority in the Illinois Municipal Code. (Ill. Rev. Stat. 1973, ch. 24, par. 1 — 1—1 et seq.) Section 11 — 20—5 of the Code permits every municipality to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of diseases, including the regulation of plumbing and plumbing systems. Clearly, such a broad grant of authority would encompass the instant ordinance.

Moreover, the Illinois Plumbing Code (Ill. Rev. Stat. 1973, ch. 111%, pars. 116.68 et seq.) empowers the State Department of Public Health to promulgate a minimum code of standards for plumbing systems. Section 5 of the Code (Ill. Rev. Stat. 1973, ch. 111%, par. 116.72) authorizes municipalities to adopt the minimum code thus promulgated. As all parties concede, regulation 7.21 of the State Department of Public Health states:

“[A]t least one-half (%) of the required fixtures installed in a building intended for public use shall be free from any device or arrangement requiring a fee to gain access.”

Although the city admits that the regulation is advisory, not mandatory, and that the city has not adopted that specific regulation, the mere existence of such a regulation further indicates that the instant ordinance was within the city’s permissible power.

Finally, it must be noted that the city could successfully rely on the authority granted by the police power to legislate for the public health, safety, comfort and welfare. (City of Chicago v. Wonder Heating & Ventilating Systems, Inc., 345 Ill. 498, 178 N.E. 192.) For although a municipality has no inherent police power, the State may and has, delegated to its municipalities the police power to protect the public health. (Ill. Rev. Stat. 1973, ch. 24, par. 11 — 1—1.) The police power may properly be used to effectively promote the interests protected in the Illinois Municipal Code and the Illinois Plumbing Code discussed above. (Father Basil’s Lodge, Inc. v. City of Chicago, 393 Ill. 246, 65 N.E.2d 805.) In this regard, the courts of this state have long recognized that plumbing and related waste-disposal systems and regulation have been a proper subject for the exercise of the police power. (See People ex rel. McKeown v. Hurley, 343 Ill.App. 413, 99 N.E.2d 355; People v. Solomon, 265 Ill. 28, 106 N.E. 458.) Accordingly, we now hold that the instant ordinance is intimately connected with the public health and therefore, was a proper exercise of both the express authority discussed above and the city’s police power.

However, merely deciding that the instant ordinance was a permissible exercise of the city’s authority does not resolve the question of its validity. For a municipal ordinance passed pursuant to valid legislative authority must also bear a reasonable and substantial relation to the public health, safety or general welfare. (Petterson v. City of Naperville, 9 Ill.2d 233, 137 N.E.2d 371.) Similarly, where an ordinance is based on the inherent police power of the state, the means chosen must be reasonably necessary for the accomplishment of the intended purpose and not unduly oppressive upon individuals. (Chicago Allis Manufacturing Corp. v. Metropolitan Sanitary District, supra.) In either event, in determining whether the ordinance is reasonable or not, the court must take into consideration the object to be accomplished, the means for its accomplishment, and all existing conditions and circumstances. Troy v. Village of Forest Park, 318 Ill. 340, 149 N.E. 281.

The reasonableness of an ordinance is a question of law to be decided by the court. (City of Chicago v. Clark, 359 Ill. 374, 194 N.E. 537.) However enactments of a municipal corporation are clothed with presumptive validity and one who challenges the validity of an ordinance must prove by clear and affirmative evidence that the ordinance constitutes arbitrary, capricious and unreasonable municipal action; that there is no permissible interpretation which justifies its adoption; or that it will not promote the safety and general welfare of the people. (First National Bank v. County of Lake, 7 Ill.2d 213, 130 N.E.2d 267.) With these legal principles in mind and a proper regard for the heavy burden plaintiffs must meet, we now turn to plaintiffs’ arguments.

' Plaintiffs attack the reasonableness of the ordinance in a variety of ways. They argue that pay toilets are cleaner and more sanitary; that the city has not shown that pay toilets are harmful or that the instant ordinance will remedy any evil; that the classification of buildings in the ordinance is unreasonable; that to prohibit coin locks but not key locks is unreasonable; and that the total prohibition rather than regulation of coin locks is unreasonable. Since this is a case of first impression in Illinois and evidently has not been considered in any jurisdiction, each of plaintiffs’ arguments will be considered separately.

At trial, plaintiffs presented voluminous testimony to establish that coin lock toilets were cleaner and more sanitary* better equipped, less prone to vandalism, a deterrent to crime, and safer. Apparently, plaintiffs assumed that more sanitary toilets was the object of. the ordinance and therefore by a showing that coin locks were cleaner and more sanitary, the unreasonableness of the instant ordinance would be evident. However, neither at trial nor in this court, has the city suggested that more sanitary toilets was the object of the ordinance. Moreover, the ordinance itself does not state that that was the object of the legislation. To sustain their contention that better sanitation was the object of the ordinance, plaintiffs can only point to the fact that the instant ordinance is now part of a chapter in the municipal code entitled “Light, Ventilation and Sanitation.” Plaintiffs overlook the fact that the cited chapter is just one part of a larger section devoted to “Buildings” in general. In any event, we reject plaintiffs’ formalistic approach to legislative interpretation and instead look to the language of the ordinance itself.

As stated earlier, the reasonableness of an ordinance is a question of law, not of fact. The function of a court, in a case such as this, is to ascertain from the words of the law itself whether constitutional restraints . have been exceeded. (Pacesetter Homes, Inc. v. Village of South Holland, 18 Ill.2d 247, 163 N.E.2d 464.) Examining the language of the ordinance, it is evident that the city’s objective was to provide increased access to toilets in buildings open to the public. The ordinance is clear and unambiguous. The effect and purpose of the ordinance is to eliminate a common obstacle to the prompt and efficient disposal of the waste products of human metabolism. There is not one word in the. ordinance that can be construed as directed towards better sanitation. Rather, the entire thrust of the ordinance is directed at increased access to toilet facilities. Viewed in this light, with a proper regard for the language of the ordinance, the object of the ordinance is not to provide more sanitary toilets, but to provide increased access to those toilets.

Consequently, plaintiffs’ evidence as to the sanitary condition of toilet facilities with coin locks becomes irrelevant. Such evidence does not in any way aid the court in resolving questions concerning the reasonableness of the actual object of the ordinance, providing access. Apparently anticipating this result, plaintiffs argue that this court is limited to sustaining the ordinance on the grounds presented at trial. They argue that since the city did not present any evidence at trial as to access, this court is precluded from deciding that increased access was the intended object. First, it must be noted that the city did present evidence that other Chicago ordinances require a certain minimum number of toilets in all buildings depending on the type and size of the building (Chicago, Ill., Code (1974), chs. 48, 66.) It can be inferred that since toilets are required, access to those toilets is required, and consequently, there was sufficient evidence on which to decide that access was the intended object of the ordinance. Notwithstanding that evidence, the validity of an ordinance such as the one in question cannot be made to depend wholly upon facts found in the particular case. Since testimony and other evidence vary from case to case, such a rule would result in the absurdity of declaring a law constitutional one day and unconstitutional the next. (Pacesetter Homes, Inc. v. Village of South Holland, supra.) Otherwise, a valid ordinance may be stricken because proper evidence, though available, was not presented at trial. The right and authority of a municipality to enact proper legislation cannot depend on such a mutable base. This is especially true when the question involves ascertaining the purpose of an ordinance which is often a matter of discerning legislative intent. In such cases, the only reliable evidence is frequently the language of the ordinance. This court cannot ignore the obvious language of the instant ordinance. That language requires the inexorable conclusion that increased access was the intended object of the ordinance.

Having decided that access was the object of the ordinance, we must now decide whether that object was reasonable in light of existing circumstances and conditions. (City of Chicago v. Clark, supra.) The lower court found:

“The City Council in enacting the ordinance had the right to consider the present day complexities of urban structural and business development — the growth of population, the increase in construction and operation of office buildings of unprecedented heights and multitudinous and variety of tenants seeking public patronage, the increase in the number and size of retail establishments, the vast increase of automobile traffic and the number and variety of automobile service stations.”

It need only be added that the regulation of toilet facilities, in all its aspects, is obviously related to the public health and therefore, a proper subject for the city council. This being so, the council could have reasonably concluded that toilet facilities, no matter how sanitary, do not promote the public health if they are not readily accessible to the public. The rapid growth of the city, as outlined above, could reasonably convince the council that the public could no longer tolerate the requirement of a coin to perform that function of the average citizen so necessary and unpredictable. Special provisions are necessary for the health, safety, and convenience of populous communities crowded within a narrow space. Large concentrations of people occupying a limited area have needs peculiar to themselves. (Biffer v. City of Chicago, 278 Ill. 562, 116 N.E. 182.) We cannot say that, as a matter of law, the city council unreasonably concluded that improved access to toilet facilities in buildings open to serve the public was needed.

It must be remembered that there was a heavy burden on plaintiffs to show that the ordinance constituted arbitrary, capricious, and unreasonable municipal action; that there was no permissible interpretation which justified its adoption, or that it will not promote the general welfare of the public. (City of Decatur v. Chasteen, 19 Ill.2d 204, 166 N.E. 2d 29.) The most important of the police powers is that of caring for the safety and health of the community. It is the policy of the law to favor such legislation. (Biffer v. City of Chicago, supra.) The plaintiffs have failed to show that improving access to toilet facilities is in any way an arbitrary, capricious and unreasonable municipal action. The city council could reasonably have believed that improving access to toilet facilities was required for the public health. We will not interfere with that determination. See Schuringa v. City of Chicago, 30 Ill.2d 504, 198 N.E.2d 326.

Plaintiffs have also argued that the city has not shown that pay toilets are harmful or that the ordinance will remedy any evil. The short answer to that argument is that the burden of proving the unreasonableness of an ordinance is on the party challenging it. (Keig Stevens Baking Co. v. City of Savanna, 380 Ill. 303, 44 N.E.2d 23.) In the instant case, there was never any reason for the city to present any evidence. All the evidence presented by plaintiffs related to the sanitary conditions of pay toilets. As is now clear, this in no way questioned the reasonableness of an ordinance directed at access. However, even without the presumption of validity it is obvious that the instant ordinance did in fact remedy an evil which was, by definition, coin locks. Toilet facilities, no matter how sanitary or safe, are useless if they are not readily available to the public generally. Coin locks were one of the obstacles to improved access to these facilities. The city council could therefore have justifiably concluded that coin locks were an evil to be abolished and that this ordinance would accomplish that objective.

Plaintiffs next argue that the classification of the buildings in the ordinance is unreasonable. By its terms, the ordinance applies to “any building that is open to accommodate or serve the public.” However, the ordinance goes on to state: “As used herein ‘building that is open to accommodate or serve the public shall include the following.” A list of some 27 buildings then follows. Plaintiffs note the familiar legal maxims that the enumeration of certain things implies the exclusion of all others unless such a construction is contrary to the clearly expressed legislative intent (Patterson v. City of Peoria, 386 Ill. 460, 54 N.E.2d 445), and that a penal statute must be strictly construed. (People v. Eagle Food, Center, Inc., 31 Ill.2d 535, 202 N.E.2d 473.) From these principles, plaintiffs suggest that the list of buildings must be considered exhaustive and that in this sense, “include” is a word of limitation. Consequently, plaintiffs contend that the ordinance applies to some buildings open to the public but not others. Plaintiffs conclude that this is an unreasonable classification and therefore, the ordinance is invalid.

However, the rule that the expression of one thing is the exclusion of another is not a rule of law, but only of construction, and should only be applied when it appears to point to the legislative intent, and never to defeat the plainly indicated purpose of the lawmaking body. (Swick v. Coleman, 218 Ill. 33, 75 N.E. 807.) When a statute contains an enumeration of certain things to which an act applies and also a general term or expression concerning the application of the act, the general term may be given full effect if the context shows the enumeration was not intended to be exclusive. (People ex rel. County of DuPage v. Smith, 21 Ill.2d 572, 173 N.E.2d 485.) Similarly, penal statutes are not to be construed so strictly as to defeat the obvious intention of the legislature. (City of Chicago v. Bethlehem Healing Temple Church, 93 Ill.App.2d 303, 236 N.E.2d 357.) Strict construction of penal statutes is far from a rigid and unbending rule, rather it has become so modified and explained away as to mean little more than that penal statutes, like all others, are to be fairly construed according to the legislative intent as expressed in the enactment. Zellers v. White, 208 Ill. 518, 70 N.E. 669.

With these later principles in mind, we turn to the language of the ordinance itself. The first paragraph of the ordinance uses broad, general language. It refers to any building open to accommodate or serve the public. The second paragraph includes a list of buildings certainly within that general language. However, that second paragraph does not express any indication to limit the general language. The word “include” by itself does not connote exclusivity. And while the few Illinois cases seem rather evenly split (compare Bunge v. Kirchhoff, 251 Ill.App. 119, and Patteson v. City of Peoria, supra, with Illinois Central RR. Co. v. Franklin County, 387 Ill. 301, 56 N.E.2d 775), the weight of authority ordinarily interprets “include” as a term of enlargement. (Fraser v. Robin Dee Day Camp (1965), 44 N.J. 480, 210 A.2d 208; Skillman v. Abruzzo (1958), 352 Mich. 29, 88 N.W.2d 420; Sims v. Moore (1972), 288 Ala. 630, 264 So.2d 484; Koenig v. Johnson (1945), 71 Cal.App.2d 739, 163 P.2d 746; St. Louis County v. State Highway Com. (Mo. 1966), 409 S.W.2d 149; North Carolina Turnpike Authority v. Pine Island, Inc. (1965), 265 N.C. 109, 143 S.E.2d 319.) In this case, the city council obviously intended to increase access to toilet facilities in all buildings open to serve the public. The general language used indicates an intent to provide this access to as broad a section of the public as possible. As has been seen, the word “include” does not by itself necessarily limit the general language.

There would be no logical reason to extend access to the buildings listed and not to other buildings such as churches, hospitals and professional service buildings. In fact, a strictly “exclusive” reading of the ordinance would exclude buildings such as the Chicago Civic Center. No legal principle requires such a narrow interpretation of the ordinance. Moreover, a classification that resulted in excluding some buildings that are open to serve the public would cast doubt on the ordinance’s validity. However, courts have a duty to interpret a statute so as to promote its essential purpose and to avoid, if possiblé, any contraction that would raise doubts as to its validity. (People ex rel. City of Salem v. McMackin, 53 Ill.2d 347, 291 N.E.2d 807; Baro v. Murphy, 32 Ill.2d 453, 207 N.E.2d 593.) A statute enacted to meet a need of the people should be liberally construed in order that the true intent and meaning of the legislative body may be carried out. (City of Chicago v. Bethlehem Healing Temple Church, supra.) Considering the reason and necessity for the law, the evil to be remedied, and the object and purpose to be obtained (People ex rel. Moss v. Pate, 30 Ill.2d 271, 195 N.E.2d 641), we cannot conclude that the city council intended the list of buildings to be exclusive. Rather, the listed buildings open to the public are merely illustrative of the type of building the city council intended to be within the broad scope of the ordinance.

Having concluded that the ordinance is not of limited scope but rather applies to all buildings open to accommodate or serve the public, the classification is an eminently reasonable one. The council could have reasonably concluded that such buildings attract a large number of visitors and that especially in an urban area such as Chicago, the public health required access to toilet facilities under such circumstances. Such a classification will be sustained if it is reasonably adapted to secure the purpose for which the ordinance is intended and is not purely arbitrary. (Keig Stevens Baking Co. v. City of Savanna, supra.)Tt can not be said there is no fair reason for the distinction drawn, by the ordinance. Accordingly, the classification must be upheld.

Plaintiffs next argue that the prohibition of coin locks, but not of key locks, was unreasonable. Their argument is that, if access was the purpose of the ordinance, the key locks prevent access as much as, if not more than, coin locks. However, the city council is not bound to extend its regulation to all cases which it might possibly reach. It may confine its restriction to those classes where the need is deemed to be the clearest. (Thillens, Inc. v. Morey, 11 Ill.2d 579, 144 N.E.2d 735.) While prohibition of key locks in addition to coin locks may have more certainly guaranteed improved access to toilet facilities, the ordinance is not invalid for failing to take this additional step. The measure of reasonableness is not what is best but what is fairly appropriate to the purpose under all circumstances. (Keig Stevens Baking Co. v. City of Savanna, supra.) The fact that the additional prohibition of key locks might have been wiser or better is of no legal consequence. The wisdom, necessity and expediency of police regulations are no concern of the courts, but are matters primarily for the legislative body of the municipality. (Schuringa v. City of Chicago, supra.) Therefore, plaintiffs’ argument that the ordinance should have been more comprehensive is not well taken.

Moreover, every legislative act is discriminatory in the sense that it is inclusive as to some class and exclusive as to the remainder. To be invalid, the classification must be arbitrary, that is, there must be no reasonable basis for the differentiation. (Village of Roxana v. Costanzo, 41 Ill.2d 423, 243 N.E.2d 242.) However, here the city council could have reasonably concluded that when key locks are . used, the key is easily and readily available; but when coin locks are used, the required coin is an absolute necessity. So viewed, the coin lock might thus pose a more severe obstacle to access. Although plaintiffs inform, us that keys for the coin locks are made available to lessees of the coin locks, the council could reasonably conclude that the general public is unaware of this fact. It is also not unreasonable to assume that the public would be less likely to ask for a key to a coin lock than for a key to a normally locked restroom. For although most people don’t hesitate to ask for a key to a locked restroom, it would not be surprising for a citizen to endure unneeded discomfort rather than admit he does not have the required coin. Either premise would provide a valid basis for the distinction between coin and key locks. Where there is an honest conflict of serious opinion as to the wisdom or unwisdom of a municipal ordinance, the courts will not interfere with the legislative judgment. (Chicago Allis Manufacturing Corp. v. Metropolitan Sanitary District, supra.) We conclude that the city council could validly distinguish betwen key and coin locks and was under no obligation to include the former within the scope of the ordinance.

Plaintiffs’ final argument is that a total prohibition of coin locks, rather than a mere regulation of coin locks was unreasonable. Plaintiffs apparently argue that the prohibition of a business is permissible only upon some special showing that the business is in fact harmful to the public. Plaintiffs rely primarily on Pacesetter Homes, Inc. v. Village of South Holland, supra. In that case, the court was faced with a Sunday closing ordinance that prohibited, with certain limited exceptions, all business activity. The court determined that the prohibition of motel or gas station operations and the showing of model homes had no reasonable relation to the legitimate purpose of Sunday laws, that is, to enable others to worship free from disturbance, and therefore the ordinance was invalid. Plaintiffs emphasize one statement by the court that “[t]he legislature can not prohibit that which is harmless in itself.” (18 Ill.2d 247, 254.) However, plaintiffs overlook the fact that the court’s statement was peculiarly appropriate to those facts. South Holland had prohibited virtually all Sunday activity) no matter how quietly or unobtrusively it could be carried on. Plaintiffs in Pacesetter were indiscriminately included in a sweeping ordinance that prohibited activity both related and unrelated to the purpose of the ordinance. Pacesetter did not turn on the fact that there was total prohibition of an activity, but rather that the ordinance was not reasonably related to its purpose. In the case at bar, it has already been determined that the instant ordinance is a reasonable exercise of the city’s power. The mere fact that it involves total prohibition does not change that result. Since the instant plaintiffs can make no showing that the present ordinance includes activity unrelated to its obvious purpose, their reliance on Pacesetter is misplaced.

In fact, Illinois cases have not held that total prohibition renders an ordinance unreasonable per se. Nor have the Illinois courts required any special showing of harm to sustain prohibitory ordinances. Once an ordinance is found to reasonably relate to the public health, safety or general welfare, the fact that it prohibits rather than regulates is of no importance. In Raymond v. Village of River Forest, 350 Ill.App. 80, 111 N.E.2d 848, an ordinance prohibiting the use of juke boxes was sustained with no extended discussion of that instrumentality’s special harm to the public. In Village of Atwood v. Otter, 296 Ill. 70, 129 N.E. 573, billiard playing was similarly totally prohibited. Automatic vending machines for the sale of cigarettes were totally prohibited in Illinois Cigarette Service Co. v. City of Chicago (7th Cir. 1937), 89 F.2d 610. In that case, the mere possibüity that minors may use the machines was deemed sufficient to sustain the ordinance. In City of West Frankfort v. Fullop, 6 Ill.2d 609, 129 N.E.2d 682, the court noted that the power to protect public health can include the power to prohibit boating, fishing, and seaplane operations. That court went on to suggest that oü well drilling might be absolutely prohibited near the public water supply even though the defendants had previously possessed valid drilling leases. Finally, in Good Humor Corp. v. Village of Mundelein, 33 Ill.2d 252, 211 N.E.2d 269, the court permitted absolute prohibition of peddling on the village streets. In view of these cases, the fact that the instant ordinance prohibits coin locks rather than regulates them is not determinative. Moreover, none of the cases suggest a requirement of any special showing of harm.

We emphasize again that a municipal ordinance is presumptively valid and that there is a heavy burden on plaintiffs to show that the ordinance constitutes arbitrary, capricious and unreasonable municipal action. We cannot say that this burden has been met nor that this ordinance will not promote the health and general welfare of the people. Accordingly, that portion of the circuit court’s order declaring the ordinance constitutional is affirmed.

We now turn to the city’s cross-appeal. The lower court found that the ordinance would result in confiscation of the property of NIK-O-Loc and Universal without due process of law. These plaintiffs would allegedly suffer the loss of their investment and the impairment of their contractual rights. Based upon a finding that these plaintiffs would suffer a loss separate and distinct from the burden imposed on the public generaHy, the court concluded that compensation would be due and reserved jurisdiction to later determine the exact amount. The city argues that a rightful exercise of the police power is not a violation of the fourteenth amendment even though private property rights may be affected and consequently, compensation is not required.

The law is quite clear that when property is affected pursuant to valid legislation concerning the police power (here the public health), no compensation is required. (Department of Public Works and Buildings v. Bills, 66 Ill.App.2d 170, 213 N.E.2d 110.) In such cases, if there is in fact any loss, the law considers it either damnum absque injuria or sufficiently compensated for by sharing in the general benefits resulting from the exercise of the police power. (Belmar Drive-In Theatre Co. v. Illinois State Toll Highway Commission, 34 Ill.2d 544, 216 N.E.2d 788.) As the court in Sherman-Reynolds Inc. v. Mahin, 47 Ill.2d 323, 328, 265 N.E.2d 640, 643, stated:

“Regulations imposed by a State in the exercise of its police power, when reasonable and adapted to the scope and objects sought to be accomplished, are not rendered unconstitutional even though private property may be injured, interfered with, or damaged without the payment of compensation. The constitutional rights obtaining to private property are subordinate to the police , power, [citations] and if legislation is within the police power, then the rights of the individual which may be affected thereby must give way to the superior rights .of the public, and he cannot complain that his property is taken without due process of law or without compensation first paid to him. [Citations.]”

It is against these legal principles that plaintiffs’ right to compensation must be tested.

This is not a situation where plaintiffs’ property has been totally destroyed or rendered useless for all reasonable purposes. ,In those situations some courts have found a constructive taking even though the forbidden use has not been transferred to the government so as to be a taking in the traditional sense. (See Just v. Marinette County (1972), 56 Wis.2d 7, 201 N.W.2d 761, 767.) However, no such taking is presented in the instant case. Rather, this case is more closely analogous to the facts in Illinois Cigarette Service Co. v. City of Chicago, supra. There, cigarette vending machines had been totally prohibited in Chicago. In response to a claim that the ordinance was confiscatory, the court stated:

“[Plaintiffs] may remove them, transport them, lease them elsewhere, or utilize them in any manner in the City of Chicago not in conflict with the ordinance or make any such adaptation to other proper purposes as may be necessary.” 89 F.2d 610, 613.

Plaintiffs in the instant case may likewise make the same use of their coin locks.

There can be no doubt that the property of the plaintiffs is adversely affected by the ordinance. However, the fact that the ordinance imposes certain burdens, or prevents the most profitable use of the property in private hands, does not of itself render the legislation invalid or necessarily result in a taking of property without just compensation. (Petterson v. City of Naperville, supra.) The privilege of every citizen to use his property according to his own will is both a liberty and a property right, but these rights are always subordinate to the interests of the public welfare. There is no constitutional guarantee that an individual may carry on his business in a certain way when the public welfare requires regulations. City of Decatur v. Chasteen, supra.

We are not unmindful of the warning of Justice Holmes in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 416, 67 L.Ed. 322, 326, 43 S.Ct. 158:

‘We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

However the distinction between acts that are within the police power and those within just compensation requirements is largely a matter of degree and must be based on the particular facts presented. Art Neon Co. v. City & County of Denver (10th Cir. 1973), 488 F.2d 118.

We have earlier concluded that the present ordinance was a valid and reasonable exercise of the city’s police power. Since the prohibition of the coin locks is pursuant to this valid exercise of the police power, compensation is not required. There has been no showing of a taking of plaintiffs’ property to such a degree that would remove the instant facts from the general rule. Accordingly, that portion of the circuit court’s order awarding compensation is reversed.

That portion of the circuit court’s order declaring the ordinance constitutional is affirmed. That portion of the order finding plaintiffs Nik-O-Loc and Universal entitled to compensation is reversed.

Judgment affirmed in part; judgment reversed in part.

HAYES, P. J., and LEIGHTON, J., concur.

       The ordinance does not effect toilet facilities regulated by a normal key lock mechanism. The city council did not prohibit all locká, just those requiring a coin. Consequently, toilets may still be locked, however, it is unlawful to charge any sum of money to open that lock.

       Moreover, it is difficult to believe that keys are in fact made generally available to users of coin-regulated facilities. For if they were, the obvious purpose of such a lock, to produce income, would be defeated. If keys were made generally available, there would be no need for a coin lock, for a normal key lock would produce the only other possible result, control over the restroom, to an even greater degree.


author: Mr. JUSTICE McGLOON

text:
    John Truelsen, Ex’r of the Estate of Nellie Truelsen, Plaintiff-Appellant, v. Richard Levin et al., Defendants-Appellees.
    (No. 59612;
    First District (3rd Division)
    November 21, 1974.

      Rehearing denied January 9, 1975.

      William Andrew Kelly, of Chicago, for appellant.
    Francis D. Morrissey, Ernest C. Meloche, and Edward J. IZulkey, all of Baker & McKenzie, of Chicago, for appellees.
   Mr. JUSTICE McGLOON

delivered the opinion of the court:

John Truelsen, as executor of the estate of Nellie Truelsen, brought this action against the defendants to recover for personal injuries allegedly caused by the defendants’ negligence in failing to provide Mrs. Truelsen, whom the defendants had employed to care for their minor children, with a safe place to work. Specifically, the complaint charged that the defendants carelessly and negligently maintained a dishwasher in the kitchen in such a condition that it leaked water onto the floor; that as a consequence, defendants kept a small rug in the kitchen where it was likely to cause a person to trip, stumble or fall; and that as a direct and proximate result, Mrs. Truelsen fell and was injured. At the close of plaintiff’s evidence the trial court ordered a directed verdict for the defendants and it is from this order that plaintiff now appeals.

We affirm.

Plaintiff contends on appeal that the trial court improperly excluded certain evidence and that with this evidence the case should have gone to a jury. Defendants contend that (1) the evidence was properly excluded and (2) that even if such evidence were admitted the trial court was still correct in directing a verdict for defendants.

The decedent, Nellie Truelsen, was employed as a babysitter by defendants Richard and Audrey Levin at their residence in Niles, Illinois, while the Levins were away on vacation in January of 1968. During this period, specifically January 18, 1968, the Niles Fire Department responded to a call at the Levins’ house and upon arriving found Mrs. Truelsen injured and in a disabled condition. The fire department ambulance then took Mrs. Truelsen to Lutheran General Hospital where she received emergency treatment. Several days later, Mrs. Truelsen was transferred to Northwest Hospital where she was operated on. The day after the operation Mrs. Truelsen died.

There were no eyewitnesses to this accident and plaintiff relied basically on circumstantial evidence in proving his case in the trial court. The trial court admitted into evidence the report of the Niles Fire Department which states that Mrs. Truelsen fell in the kitchen and the nurse’s report at Lutheran General Hospital which states that Mrs. Truelsen slipped on a rug and fell.

Plaintiff at trial established that a dishwasher was kept in the kitchen of the Levins’ house. Plaintiff further attempted at trial to show that the dishwasher leaked on occasion, and that when it would leak it was the practice and custom to place a rug under the dishwasher to catch the suds and water. Plaintiff’s questions along these lines were objected to by defendants and such objections were sustained by the trial court.

Plaintiff then made an offer of proof outside of the presence of the jury and read into the record certain portions of the depositions of Richard Levin taken August 4, 1971, and Sandra Sedorchuk Petersen taken August 3, 1971. The offer of proof showed the following: that a rug was kept in a recession underneath the dishwasher when the dishwasher was in operation; that when the dishwasher would leak the rug was placed on the floor underneath the dishwasher to catch the excess suds that would drip over; that the dishwasher was used once a day on the average and would leak perhaps once a week or once a month. The offer of proof further indicated that the defendants wanted the rug to be placed on the floor when the dishwasher leaked and that when Sandra Sedorchuk Petersen arrived shortly after the accident the rug was gone.

It is plaintiff’s contention on appeal that such evidence should have been admitted by the trial court and that such evidence established a jury question on the issues of negligence and proximate cause. We feel, however, that even if such evidence were admitted, the trial court was still correct in directing a verdict for the defendants. It is true, as plaintiff contends, that circumstantial evidence may be used to prove a fact in issue when there are no eyewitnesses. (See Holsman v. Darling State Street Corp. (1955), 6 Ill.App.2d 517, 128 N.E.2d 581, and Golden v. Big Bear Foods, Inc. (1968), 102 Ill.App.2d 237, 243 N.E.2d 730.) However, it is also true as stated in Coulson v. Discerns (1946), 329 Ill.App. 28, 32, 66 N.E.2d 728, 730:

"A fact cannot be established by circumstantial evidence unless the circumstances are of a nature and so related to each other that it is the only conclusion that can be drawn therefrom, and mere conjecture, guess, or suspicion is insufficient.” See also Fabschitz v. King (1973) 10 Ill.App.3d 43, 45, 293 N.E.2d 916, 918.

In the case at bar the only' evidence concerning the proximate cause of the accident are the nurse’s report which indicates that Nellie Truelsen fell on a rug and the fire department report which indicates that Nellie Truelsen fell in the kitchen. The offer of proof allegedly indicated that a rug was customarily placed under the dishwasher when it leaked, which was approximately once a week or once a month. There is no evidence, however, that the floor was wet at the time of the accident or that the rug was on the floor when the fire department arrived. Under these facts, to say that defendants’ negligence in maintaining a leaky dishwasher was the proximate cause of Mrs. Truelsen’s injury would be mere conjecture. As stated in Hagerman v. National Food Stores, Inc. (1972), 5 Ill.App.3d 439, 443, 283 N.E.2d 321, 324:

“Liability cannot be predicated upon surmise or conjecture as to the cause of the injury; proximate cause can only be established when there is a reasonable certainty that defendants’ acts caused the injury. (Guttman v. Salvaggio (1969), 117 Ill.App.2d 375, 383-386, Sansone v. Atchison, T. & S.F. Ry. Co. (1967), 83 Ill.App.2d 435, 437. Also see, Tiffin v. The Great A. & P. Tea Co. (1959), 18 Ill.2d 48, 60-61.) It is patent that no liability existed unless defendants’ alleged negligence was the legal cause of plaintiff’s injury. (Pitts v. Basile (1966), 35 Ill.2d 49, 54.) Failing to establish this element of proximate cause, plaintiff had not sustained his burden of making a prima facie case of negligence, and it was proper to direct the verdict for defendants. See, Driscoll v. Rasmussen Corp. (1966), 35 Ill.2d 74, 78-79.”

Essentially the same rule of law is quoted in McInturff v. Chicago Title & Trust Co. (1968), 102 Ill.App.2d 39, 243 N.E.2d 657. In McInturff the plaintiff fell down a stairway in a building owned by the Chicago Title and Trust Company. There were no eyewitnesses to the accident. Evidence admitted at trial showed that the stairs were worn and that, in violation of a city ordinance, there was no railing on the right hand side of the stairway. In overturning the jury’s decision for the plaintiff, the Illinois Appellate Court reasoned as follows:

“The fragmentary evidence on the issue of the defendants’ negligence did not establish any relationship between the alleged negligence and the proximate cause of the decedent’s fall and injury. There was no direct evidence relative to what took place prior to and at the time of the decedent’s injury. There was no proof that the condition' of the stairway, or the alleged failure to comply with the handrail ordinances, caused by the injury or damage suffered by the plaintiff. The burden was on the plaintiff to establish by a preponderance of the .evidence the causal relation between .the alleged negligence and the injury sustained by the decedent. Absent proof of a causal relationship between the condition of the stairs and the decedent’s death, the plaintiff was not entitled to recover. Damages cannot be assessed on mere surmise or conjecture as to what probably happened to cause his injury and death. Withey v. Illinois Power Co., [32 Ill.App.2d 163, 170, 177 N.E.2d 254].” McInturff v. Chicago Title and Trust Co., 102 Ill.App.2d 39, 49, 243 N.E.2d 657, 662.

The rule concerning, directed verdicts in Illinois is clearly stated in Pedrick v. Peoria & Eastern Ry. Co. (1967) 37 Ill.2d 494, 510, 229 N.E.2d 504, 513-14:

"[V]erdicts ought to be directed * * 5 only in those cases in which all of the. evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

The record indicates that the trial court used the above standard in directing a verdict in favor of the defendants and we agree with the trial court’s decision. Accordingly, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

DEMPSEY and MEJDA, JJ., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Respondent-Appellee, v. Earl Johnson, Petitioner-Appellant.
    (No. 60550;
    First District (2nd Division)
    December 10, 1974.

      Paul Bradley and Lynn Sara Frackman, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   PER CURIAM.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Charles Miller et al., Defendants-Appellants.
    (Nos. 59846-7 cons.;
    First District (2nd Division)
    December 10, 1974.
    Julius Lucius Echeles and Carolyn Jaffe, both of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.