text:
    The City of Park City, Plaintiff-Appellee, v. Hy Brosten, d/b/a Hy-Way Sales, Defendant-Contemnor-Appellant.
    (No. 73-352;
    Second District
    December 12, 1974.

      Rehearing denied January 8, 1975.

      Bellows & Bellows, of Chicago, and Wilham A. Holmquist, of Snyder, Clarke, Dalziel, Holmquist, & Johnson, of Waukegan, for appellant.
    Conzelman, Schultz, O’Meara & Snarski, of Waukegan (Eugene Snarski, of counsel), for appeHee.
   Mr. PRESIDING JUSTICE THOMAS J. MORAN

delivered the opinion of the court:

Defendant was held in contempt of court and sentenced to a term of 3 months “or such lesser period when said defendant * * * might purge himself by complying with the Writ (mandatory injunction) heretofore issued.” On appeal, defendant claims: (1) that he was found guilty of criminal contempt; (2) that he was denied due process; and (3) that the trial court was without jurisdiction to enter the injunction upon which the contempt order is founded.

On May 27, 1969, the plaintiff filed its complaint alleging that the defendant was violating its junkyard ordinance. Dining trial, on May 13, 1971, a decree was entered in which the court found it had jurisdiction both of the parties and the subject matter and that the parties had entered into an agreed order. The court entered a permanent injunction against the defendant ordering him to cease operating a junkyard and to “clean up the premises” before November 1, 1972. A few days later, the defendant petitioned the court to rescind its decree. The court denied the petition. This court stayed the injunction pending appeal and later affirmed the decree (6 Ill.App.3d 474, appeal denied, 52 Ill.2d 597). Upon remand, the trial court entered an order on January 30, 1973, directing the issuance of the writ of injunction pursuant to the May, 1971, order.

A review of the record reveals that on April 2, 1973, after a hearing on plaintiffs rule to show cause, defendant was found in contempt of court. He was sentenced to jail until he purged himself of said contempt, but the order was stayed to allow defendant time to submit to the court a plan by which he could comply with the injunction. On April 24, defendant submitted a plan which amounted to a continuation of his operation under a different arrangement. The proposed plan did not comply with the court’s order for removal of junk. At this hearing there was entered an agreed order continuing the cause until May 30, at which time defendant was to submit a report showing a weekly removal of 100 tons of scrap and, additionally, show that no new scrap was being allowed into the yard. On May 30 it was determined that 120 tons, not 500 tons, of scrap had been removed. Defendant claimed that he was unable to remove the required amount because his property was under water; he invited the trial judge to inspect the premises. Court and counsel visited the premises on ,the following day. At the next hearing, June 12, the court reported on its visit, finding that while the south end of the property was under water, the north end, which contained several hundred dismantled cars, was not and that those cars could have been removed. Thereupon the court committed defendant to jail until he purged himself of contempt. The next day, defendant appeared before the court and stated that he had entered a contract with Diamond Scrap Yards for removal of the scrap. After hearing Diamond’s representative testify that removal would take 120 days, the court vacated the commitment order and continued tire case for 120 days. On August 2, defendant appeared and advised the court that, because of a disagreement, Diamond was no longer removing the scrap. At this hearing, Diamond’s representative testified that defendant was hauling in new junk. The court then ordered weekly reports and continued the matter until September 4. At the next hearing, September 10, the court, unsatisfied with defendant’s progress, ordered removal of all junk (as required under the injunction of May 13, 1971) by October 10, 1973, and further ordered that it would meet defendant and the attorneys at the premises on that morning. On October 10, after the judge and the attorneys visited the premises, the judge found that the north end of the property looked "just as loaded with, automobiles” as it was 4 months previous. At this hearing, defendant called the attorney for the Lake County Forest Preserve who testified that a condemnation suit was filed against a portion of defendant’s property located in the City of Waukegan and adjacent to the premises in question and that the District might work out an arrangement by which defendant could temporarily store the junk from the Park City property on the Waukegan parcel. He further testified, however, that defendant “has not ceased bringing in new junked cars to the yard, and until such time as he does that we don’t see how he’s ever going to get to the point where he can remove the ones he’s got.” It was at the conclusion of this hearing that the order appealed was entered.

Defendant contends that he was held in criminal contempt of court in violation of due process requirements accorded a criminal proceeding. Specifically, he maintains that he was denied the right to know the nature of the charge against him, the right to a hearing, the right to confront witnesses, the right to present evidence in his own behalf, and possibly the right to have his case heard by a jmy.

Clearly, defendant was held in civil, not criminal contempt of court. The Illinois Supreme Court distinguished the two as follows:

"Criminal contempt is conduct which is directed against the dignity and authority of the court or a judge acting judicially, while civil contempt ordinarily consists of failing to do something ordered to be done by a court in a civil action for the benefit of the opposing litigant therein.” People ex rel. Kazubowski v. Ray, 48 Ill.2d 413, 416 (1971).

In Board of Junior College District No. 508 v. Cook County College Teachers Union, 126 Ill.App.2d 418, 427-28 (1970), the court stated:

“[A] useful test by which a civil contempt can be distinguished from a criminal one is the punishment imposed. When punishment is purely punitive: imprisonment for a definite term * * * the contempt is said to be criminal. When punishment is a remedial or coercive measure: commitment of a contumacious party until he complies with the mandate of the court * * * the contempt is said to be civil.”

Here, the court found defendant in contempt, not to punish him, but to make him comply with the order of the court. The court’s intent to coerce, rather than punish, the defendant is manifested by the many opportunities allowed defendant to comply with the order and also by the fact that on a prior occasion defendant was released from jail upon presenting before the court a contract for removal of junk from his property in compliance with the court’s order. Throughout these proceedings the trial court displayed remarkable patience and extended considerable effort on behalf of defendant.

The trial court imposed a term of 3 months or such lesser period of time as it may take the defendant to purge himself of contempt. Once again, defendant can avoid a jail term by merely complying with the order. The sentence imposed is, therefore, clearly coercive, not punitive.

Defendant claims that he was denied the right to know the nature of the charge against him, that he was not afforded a hearing, that he was not allowed to confront witnesses or to present evidence in his own behalf. This argument in its entirety appears to be based on the defendant’s dissatisfaction with the trial court for not allowing him to re-litigate the issues underlying the order of May 13, 1971, which enjoined him from operating a junkyard on the subject premises. Those issues were decided against the defendant, affirmed by this court and are res judioata.

The issue at bar is whether the defendant was in contempt of court for failing to comply with the order entered on May 13, 1971. That defendant did not know the nature of the charge against him is beyond comprehension: he was in court, told to clear his property and informed that the consequence for failing to comply with this order would be a jail term. Defendant presented proposals to the court as to how he intended to comply with the order. The charge was clear. Defendant had the option of complying or being held in contempt. He chose the latter. Similarly, there is no merit to defendant’s contention that he was not afforded a hearing. He was given at least six hearings.

Defendant was allowed to confront witnesses and present evidence in his own behalf. In point of fact, however, several of his own witnesses testified that defendant was not complying with the court order in that he was continuing to bring additional scrap into the yard. Defendant ohjects, on appeal, to the trial judge’s personal inspections of the junkyard, but because such inspection was initially made at defendant’s request, this issue, too, is without merit.

Defendant further argues that the court was without jurisdiction to enter the original injunction against him. This contention is nothing more than a circuitous and futile attempt to relitigate the original case. As we have indicated, that issue was resolved by this court on a prior appeal.

Shortly after entry of the order appealed, defendant obtained a stay order from this court, which order, in part, set forth the following conditions:

“IT IS HEREBY ORDERED:
# # #
2. That pending the appeal of said Order, the Defendant be and he is hereby released on bail upon his own recognizance in the sum of $1,000.00.
3. That pending appeal the said Defendant is enjoined from moving wrecked or dismanteled [sic] automobiles, batteries, tires, rubber debris or parts of automobiles or vehicles onto the property owned by the Defendant in Park City, Illinois, the subject matter of his litigation.
4. That said Defendant continue removal of the wrecked, dismanteled [sic] automobiles and all other debris on said property on the same scale or better than he has done in the past three (3) months and furnish weekly reports of the tonnage removed to Attorney Eugene Snarski, 33 North County Street, Waukegan, Illinois, 60085, Attorney for Park City, Illinois. * * *”

During the pendency of the appeal, plaintiff filed a petition containing allegations to the effect that, subsequent to the entry of the above order, defendant has received additional junk onto his property and has failed to furnish weekly reports of removal of scrap “since February 1973 [sic].” The petition requests this court or, in the alternative, the trial court to conduct a hearing to determine the appropriate relief and to vacate the stay order. In response, defendant filed a motion to dismiss the petition on the grounds that laches has attached and, additionally, that this court lacks jurisdiction to direct the trial court to hold hearings on the petition. We have considered defendant’s motion to dismiss and find it to be without merit. Our stay of proceedings was granted “until further order of this Court.” This opinion finds against the defendant on the issues, therefore, plaintiff’s motion to vacate the stay order, entered October 17, 1973, is allowed.

The remainder of plaintiff’s petition presents a novel issue from a procedural aspect. The substantive law is clear. “All courts are vested with an inherent power to punish for contempt as an essential incident to the maintenance of their authority and the proper administration and execution of their judicial powers.” (People v. Javaras, 51 Ill.2d 296, 299 (1972). Also see this court’s opinion in Stevens v. County of Lake, (24 Ill.App.3d 51 (1974).) Unclear is the method to be used to obtain evidence from which a determination of the issue may be made. This court, like most reviewing courts, is not physically equipped to receive and record evidence on the matters here presented. While this may create a certain frustration, it does not mean that we are necessarily estopped from invoking our power to punish for contempt. Contrary to defendant’s claim, we are of the opinion that Supreme Court Rule 366(a)(5) (Ill. Rev. Stat. 1973, ch. 110A, § 366(a)(5),) empowers this court to remand plaintiffs petition to the trial court for an evidentiary hearing. See also In re Koome, 82 Wash.2d 816, 514 P.2d 520 (1973).

It is therefore ordered that:

1. The motion to dismiss plaintiffs petition is denied;

2. The motion to vacate defendant’s stay order is allowed;

3. The order appealed is affirmed and that portion of the decision is final.

4. A rule is hereby entered upon the defendant, Hy Brosten, d/b/a, Hy-way Sales, to show cause, if any he has, why he should not be held in civil contempt of this court for failure to comply with its order of October 17, 1973. Said rule is returnable on December 27, 1974, at 9:30 A.M., before the Honorable Fred H. Geiger, or any other circuit judge of the Nineteenth Judicial Circuit, for the taking of evidence upon matters contained in plaintiffs petition (which is hereby transferred to said court) and responsive pleadings, if any.

5. Upon completion of such hearing, the pleadings and all evidence ■ introduced shall be promptly transcribed and certified by the sitting judge and submitted to this court for further proceedings for which purpose this court retains jurisdiction.

6. A copy of this order shall be served upon the parties by certified mail and plaintiffs petition is continued pending execution of paragraphs 4 and 5 of this order.

GUILD and RECHENMACHER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM: PER CURIAM:

license: Public Domain

text:
    The People of the State of Illinois, Respondent-Appellee, v. Louis Ruiz, Petitioner-Appellant.
    (No. 59097;
    First District (2nd Division)
    October 22, 1974.

      Supplemental opinion upon denial of rehearing filed December 31,1974.

      Paul Bradley, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.
   PER CURIAM:

This is an appeal from the dismissal, without an evidentiary hearing, of an amended post-conviction petition. On February 24, 1965, petitioner pleaded guilty to the offense of aggravated battery, and, following a bench trial, was convicted of rape, indecent liberties, and attempt murder. On appeal to this court, the convictions for indecent liberties and attempt murder were reversed, which left standing the convictions for rape and aggravated battery, for which petitioner had been sentenced to consecutive terms of 10 to 25 years and 5 to 10 years, respectively. (People v. Ruiz (1967), 82 Ill.App.2d 184, 226 N.E.2d 438, cert. denied (1968), 392 U.S. 916.) Petitioner contends that the court should have granted an evidentiary hearing. The State contends that the amended petition failed to allege any violations of substantial constitutional rights and, therefore, was properly dismissed without an evidentiary hearing.

The petitioner alleged that his constitutional rights had been violated (1) when he pleaded guilty to aggravated battery, because the trial court failed to advise him (a) of his right to a jury trial, and (b) of the possible sentences that might be imposed; and (2) because tire trial court did not obtain a knowing and voluntary waiver of the right to a jury trial on the remaining charges. Petitioner further claimed that his rape conviction deprived him of his constitutional right to trial by jury because he first came to the United States in 1963 and did not have either a sufficient command of the English language or an adequate understanding of the United States judicial system to waive his right to trial by jury. He alleged that the interpreter “did not speak good Spanish” and that in explaining trial by jury to him, she merely told him that “a jury was 12 people.”

The report of proceedings on February 24, 1965, shows the following:

“THE CLERK: Louis Ruiz
MR. ORAMENOS (assistant public defender):
Your Honor, in the case of Louis Ruiz, Indictments 64-3717 and 3718, I have discussed these matters with Mr. Ruiz with the benefit of an interpreter and Mr. Ruiz wishes to enter a plea of guilty to the indictment charging aggravated battery; with respect to the charge of attempt with — intent to commit murder, not guilty. Mr. Ruiz further advises with Indictment 64-3717 charging rape and indecent liberties with a child, he enters a plea of not guilty.
The defendant further advises that he waives a jury trial and wishes to have a bench trial in this case.
MR. FLEISCHMAN (assistant States attorney): The State would move to consolidate, consolidating the indictments and have them tried together.
MR. DI VITO (assistant State’s attorney): The State answers ready for trial.
THE COURT: Motion to consolidate is allowed. Are you the interpreter?
MR. CHAMENOS (assistant public defender): Mrs. Abby Toribio who is associated with the Cardinal Committee for the Spanish Speaking People in Chicago.
THE COURT: Obligate the interpreter.
(Thereupon, Mrs. Abby Toribio was sworn to interpret from the English language into the Spanish language, and thence from the Spanish language into the English language.)
THE COURT: All right. Will you inform Mr. Ruiz that under the law he is entitled to a jury trial if he so desires?
THE INTERPRETER: Your Honor, I didn’t hear that.
THE COURT: You inform him that under the law he is entitled to a trial by jury if he so desires.
THE INTERPRETER: He wishes you to hear it.
THE COURT: Does he understand that?
THE INTERPRETER: Yes. He says — I explained to him and he would rather by you, he says.
THE COURT: In other words, he wants the Judge to hear the case without a jury?
THE INTERPRETER: Yes.
THE COURT: Tell him that he will be asked to sign a paper here which is his written authorization to proceed without a jury. Have him sign it then.
THE INTERPRETER: He says he can’t sign it. I guess he is nervous.
THE COURT: Tell him to do the best he can.
MR. CHAMENOS: I will present the jury waiver to the court.
THE COURT: All right. For the record, the defendant waives trial by jury, as explained by the interpreter. Both sides ready?
MR. GRAMENOS: Ready.
MR. DI VITO: Ready, your Honor. At this time, we will ask permission to go out of order in the presentation of our witnesses.
Dr. Wygant has an appointment at noon.
THE COURT: Miss, you can sit with him and can explain anything to him as they come up.
MR. DI VITO: We will call Dr. Wygant to the stand.
THE COURT: Let the record show that this witness is being called out of turn .for the sole purpose of expediting his departure from court on other business.”

The State first argues that the petitioner’s allegations, because not raised in his direct appeal, should be deemed waived. However, the waiver rule may be relaxed when fundamental fairness so dictates, and there is authority for the proposition that when a petitioner is represented both at trial and on the original appeal by attorneys from the same office (here, the office of the public defender of Cook County), it is “not inappropriate” to consider allegations not raised on direct appeal. People v. Holmes (1974), 17 Ill.App.3d 102, 104, 307 N.E.2d 776, following People v. McNeil (1972), 53 Ill.2d 187, 290 N.E.2d 602.

Insofar as the petition claimed that the trial court did not sufficiently admonish him with regal'd to his right to trial by jury when he pleaded guilty to aggravated battery, the petition did not allege a substantial violation of a constitutional right, since the court upon a plea of guilty was not required as a matter of constitutional right to advise the defendant of his right to jury trial until the decision of the United States Supreme Court in Boykin v. Alabama, 395 U.S. 238, on June 2, 1969. Boykin v. Alabama was held not to have a retroactive effect in People v. Williams (1970), 44 Ill.2d 334, 343, 255 N.E.2d 385, cert. denied (1970), 399 U.S. 914.

However, petitioner’s contention that he was not advised concerning the possible sentences he might receive if his plea to aggravated battery were accepted does raise a substantial constitutional issue. (People v. Mackey (1965), 33 Ill.2d 436, 437, 211 N.E.2d 706; People v. Weakley (1970), 45 Ill.2d 549, 259,N.E.2d 802.) Therefore, as to that allegation, the amended petition should not have been dismissed.

Defendant also claims that he did not waive his right to jury trial on the charge of rape because the interpreter did not speak good Spanish and inadequately explained to him what a jury is. In general, an accused is presumed to speak through his counsel and when, without objection, counsel expressly advises the court that a jury is waived, this is sufficient. (People v. Sailor (1969), 43 Ill.2d 256, 260-261, 253 N.E.2d 397.) However, whether a jury waiver has been understandingly made rests on the peculiar facts of each case, so that when a defendant does not manifest an understanding of the nature of a jury trial, further inquiry should be made, as the court held in People v. Bell (1968), 104 Ill.App.2d 479, 481, 244 N.E.2d 321, where defendant’s only response when questioned about waiving a jury was “A what?” When the record reflects that the responses of the accused are “unhesitating, direct and unequivocal,” a waiver will be upheld although the accused is an alien. (People v. Sadeghzaden (1970), 124 Ill.App.2d 375, 381-382, 260 N.E. 2d 447.) However, whether there had been a knowing and intelligent jury waiver is a question of fact to be decided in the light of the peculiar facts of each case. People v. Ponjavich (1973), 10 Ill.App.3d 649, 295 N.E.2d 16.

The record of the proceedings, set out above, does not show that the defendant made any statements on his own. The record shows no colloquy between defendant and the interpreter. The court indicated that the defendant waived trial by jury “as explained by the interpreter.” The defendant could not sign the jury waiver and was “nervous.” The record, therefore, is equivocal on the factual issues raised by the petitioner. Despite the absence of an affidavit from the interpreter and the defense attorney to support petitioner’s allegations as to the interpreter’s inadequacies, the petitioner’s allegations, as supported by the attached transcript of proceedings, did raise a substantial constitutional question. Accordingly, the order dismissing the post-conviction petition without an evidentiary hearing is reversed and the case is remanded for an evidentiary hearing concerning petitioner’s allegations.

Reversed and remanded.

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

PER CURIAM:

The State has petitioned for rehearing, contending that neither of petitioner’s allegations raised a substantial constitutional issue sufficient to require an evidentiary hearing. First, concerning petitioner’s contention that the court failed to advise him concerning the possible sentences he might receive if his plea of guilty to aggravated battery were accepted, we now agree that this allegation did not raise a substantial constitutional issue. As in the recent case of People v. Krantz (1974), 58 Ill.2d 187, 194, 317 N.E.2d 559, the petitioner here has made no claim that he was unaware of the possible punishment to which his conduct had exposed him or that he was otherwise prejudiced; any error would therefore be harmless.

The petition for rehearing also contends that the petitioner’s allegation that he did not knowingly and intelligently waive his right to trial by jury likewise did not raise a substantial constitutional issue sufficient to require an evidentiary hearing. The State argues, citing People v. Arbuckle (1969), 42 Ill.2d 177, 246 N.E.2d 240, that the petitioner has not met his burden of providing or explaining the absence of supporting affidavits and, consequently, that the post-conviction petition was properly dismissed without an evidentiary hearing. Concerning the facts, the State contends that the appellate court opinion (82 Ill.App.2d 184, 189) indicates Ruiz was “quite able to take the stand in his own behalf at trial and present his side of the case,” and that the interpreter was a person brought to court by the defendant himself and “represented to be qualified by defendant and his counsel.” We disagree with the State’s reading of the original appellate court opinion, and we find that the record before us, which does not contain the original trial transcript, does not contain any support for these factual assertions. In People v. Arbuckle, supra, the petition not only lacked supporting affidavits, but the record itself contradicted the allegations of the petition. Such is not the case here. These factual questions are best resolved at an evidentiary hearing. In light of the serious constitutional question raised by petitioner’s allegations, we adhere to our original opinion that fundamental fairness requires remandment of this cause for an evidentiary hearing. We do this even though petitioner’s appellate counsel, who was also counsel at the trial, failed to raise the issue on the direct appeal.

The requested rehearing is denied.

Denied.


author: Mr. JUSTICE DOWNING

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Leonard J. Mack, Defendant-Appellant.
    (No. 55966;
    First District (2nd Division)
    November 26, 1974.
    James J. Doherty, Public Defender, of Chicago (Ronald P. Alwin and Robert Thompson, Assistant Public Defenders, of counsel), 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. JUSTICE DOWNING

delivered the opinion of the court:

Leonard J; Mack (hereinafter defendant), after a jury trial in the court below; was found guilty of the offense of attempted rape. In addition, defendant was found not guilty of the charge of burglary. The defendant presented no evidence in the trial court. He was sentenced to a term of 5 to 10 years.

The issues presented for review in defendant’s initial brief are:

(1) whether the court below erred in admitting into evidence certain statements made by defendant to the complaining witness;
(2) whether the procedure used by the prosecutor to corroborate the complaining witness’s testimony led to the admission of prejudicial evidence;
(3) whether certain testimony relating to the details of the attempted rape was outside the scope of the exception to the hearsay rule in rape cases;
(4) whether the trial court’s refusal to instruct the jury on the issue of force constituted prejudicial error; and
(5) whether the evidence presented below showed that defendant took a substantial step toward the commission of the offense of rape.

In addition to the issues just recounted, this court, in reviewing the record presented on appeal in its entirety, after oral argument, raised the question of the legal sufficiency of the information filed by the State against the defendant in the court below, as well as the effect of defendant’s waiver of indictment; those questions were nowhere raised by either the defendant or the State in the trial court, in the briefs filed by the respective parties, or upon oral argument of the cause before this court.

However, notwithstanding, the question whether the charge in a criminal case is legally sufficient is one which brings into scrutiny thé jurisdiction of this court to entertain an appeal (People v. Edge (1950), 406 Ill. 490, 494, 94 N.E.2d 359). Moreover, the question will be noticed although it has not been raised by the parties (People v. Nickols (1945), 391 Ill. 565, 570-571, 63 N.E.2d 759). Consequently, subject to the order of this court, the parties to this appeal briefed and argued the legal sufficiency of the information filed by the State and defendant’s waiver of indictment, and, in this opinion, we will consider those questions.

In brief, the pertinent facts can be summarized as follows. On September 22, 1968, the complaining witness resided in an apartment in Chicago. She testified that, on the day in question, she retired to bed, without clothing, at approximately 1 A.M. and that, at approximately 6 A.M., she was awakened by a man, later identified as the defendant, who was bending over her, holding a knife at her neck and fondling her breasts; that she asked defendant what he wanted and that defendant responded that he wanted to suck her “titties”; that she told him to get rid of the knife and they would talk about it; that defendant eventually got rid of the knife and that she let him do what he had asked, as he laid down beside her in the bed; that after about five minutes, she asked defendant if she could get out of the bed to make some coffee, which she was permitted to do; that she returned and defendant asked her to lie down in the bed with him; and that thereafter defendant was quiet for a time. According to the complainant $10, which was on a bedside table, was missing upon her retmn.

Subsequent to these events, the complainant, who was separated from her husband at the time, conversed with the defendant for approximately an hour, during which time defendant said his name was “Earl Lee.” Defendant then left the apartment.

After defendant had gone, the complainant phoned her husband to tell him what had happened. She then called the police, and when a police officer arrived, she told him what had happened, in addition to providing him with a description of her attacker.

On October 1, 1968, a man who identified himself as “Earl Lee” came to the complaining witness’s front door, at which time she told the man —whom she could not be sure was the same man who had accosted her on September 22 — that he had better leave before her husband came home and shot him. She told the man that he could return the following afternoon, but he did not return.

On October 9, 1968, defendant returned to the complainant’s apartment. She had the opportunity to phone the police prior to admitting defendant into the apartment. A brief conversation ensued between the two. The police arrived, defendant fled the apartment, and he was apprehended a short distance away and was taken into custody. As was noted above, after a jury trial, during which defendant presented no evidence, he was found guilty of attempted rape and sentenced to a term in the penitentiary.

In light of our disposition of this appeal, we find it necessary to consider only these questions: (1) whether the information purporting to charge defendant with the crime of attempted rape was invalid, owing to the State’s failure to allege that defendant had the specific intent to commit the offense of rape and that he did any act which constituted a substantial step toward the commission of that offense; and (2) whether, if that be the case, the trial court was without jurisdiction to enter judgment against the defendant.

On the day defendant went to trial, tire State filed a handwritten information which charged him with the offense of attempt to commit rape. It was upon this information that defendant was convicted. The information alleged:

“[T]hat Leonard J. Mack has, on Sept. 22, 1968 at 5502 South Everette, Chi. 111. committed the offense of Attempt-rape in that on September 22, 1968 the defendant gained entrance to the victim’s apartment. The defendant then awakened the victim * * * who was asleep in her bed. He held a knife in his hand and told the victim that he wanted to suck her titties. He then got into the bed with the victim, holding the knife to her throat. He then fondled the victim. During this period of time the victim was able to dissuade the offender from having relations with her. Before leaving the apt. the defendant took from the victim $10.00 U.S.C. On Oct. 9, 1968 the defendant returned. The complainant called the police and the offender was arrested while fleeing from her apartment. In violation of Chapter 38 Section 8 — 4 Illinois Revised Statute and Against the Peace and Dignity of The People of the State of Illinois.”

After the above-quoted handwritten information had been filed, counsel for the State submitted a “form” to the trial court for “attempt rape”; the form was to be “the substance of the charge” which the trial court would “read to the jmy on the Information.” The form is not a part of the record on this appeal. However, counsel for the State verbally set forth its contents in tire transcript of the proceedings in the court below, the trial court stating, in referring to the form, that “* * * the only thing that will be a part of the record is what [is] read into the record.” Counsel for the State then stated:

“In essence, it says, “Leonard J. Mack, a male person of the age of 14 years and upwards committed the offense of attempt in that he, with the intent to commit the offense of rape, attempted to compel one - [see footnote below], not the wife of said Leonard J. Mack, to submit to an act of sexual intercourse by force and against her will, in violation of Chapter 38, Section 8 — 4, of the Illinois Revised Statutes in 1967, contrary to the Statute, and against the peace and dignity of the same People of the State of Illinois.’ ”

Defense counsel agreed to have this “substance of the charge” read to the jury “on the Information,” and this last-quoted material was then read to the jury and heard by the defendant before any witnesses were called and before any jurors were sworn.

I.

The State argues, in the brief ordered to be filed with this court, that because the “total information” enabled defendant to prepare a vigorous defense to a fully comprehended charge of attempt rape, the information is sufficient under modern legal principles. Defendant contends, on the contrary, that where the essential element of intent is lacking from an information charging attempt rape, the information does not charge an offense. Therefore, defendant ruges, the trial court was without jurisdiction, and any conviction resulting from said information is a nullity.

The statute pursuant to which defendant was charged provides, in part, that “[a] person commits an attempt when, with intent to commit a specific offense, he does any act which constitutes a substantial step toward the commission of that offense.” (Ill. Rev. Stat. 1967, ch. 38, par. 8 — 4(a).) The general rale in Illinois is that all elements essential to the proof of a crime must be charged in an indictment or information, and “* # * where the statutory definition of a crime includes the intent with which the act was committed as an element of the offense, the intent must be alleged.” People v. Woodward (5th Dist. 1972), 7 Ill.App.3d 607, 609, 288 N.E.2d 72; see also People v. Martin (4th Dist. 1973), 15 Ill.App.3d 465, 305 N.E.2d 12.

With regard to tire original information filed by the State, it is our opinion that the information clearly failed to aHege either that defendant had the specific intent to commit the offense of rape or that he did any act which constituted a substantial step toward the commission of that offense (Ill. Rev. Stat. 1967, ch. 38, par. 8 — 4(a)). In addition, regarding the “form” read into the record by counsel for the State — which purportedly was to serve as an amendment to the original information — we feel that said form faffed to aHege that defendant did any act which constituted a substantial step toward the commission of the offene of rape; the form did, however, aHege that defendant had the specific intent to commit the offense of rape.

Furthermore, the requirement that an information or indictment charge a crime is jurisdictional (People v. Harris (1946), 394 Ill. 325, 327, 68 N.E.2d 728). If in an appeal it is determined that the charge was fatally defective, the judgment must be reversed (People v. Fore (1943), 384 Ill. 455, 51 N.E.2d 548). As our supreme court stated at page 458 in People v. Fore, “[wjhere an indictment is insufficient * * * to charge a public offense we must reverse the judgment of conviction notwithstanding the point was not raised in the trial court, as no waiver or consent by the defendant to a criminal prosecution can confer jurisdiction or authorize his conviction in the absence of an accusation charging him with a violation of the criminal law. (People v. Minto, 318 Ill. 293; People v. Wallace, 316 Ill. 120.)”

Applying these general principles to the matter at hand, we hold that the charge stated in the information filed against defendant was insufficient to sustain the judgment rendered in the court below. It follows, therefore, that the judgment, necessarily, was without a legal basis.

Accordingly, the judgment of the circuit court of Cook County is reversed.

Judgment reversed.

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

       The record suggests some evidence of the attempt rape was presented to the grand jury. However, no indictment was returned on the rape charge.

       The name of the complainant was stated but is omitted from this opinion.


author: Mr. JUSTICE STAMOS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mattie Louise Beathea, Defendant-Appellant.
    (No. 58098;
    First District (2nd Division)
    November 26, 1974.

      James J. Doherty, Public Defender, of Chicago (Shelvin Singer, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Jerald A. Kessler, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE STAMOS

delivered the opinion of the court:

Mattie Louise Beathea, defendant, was found guilty after a bench trial of the crime of voluntary manslaughter in violation of section 9 — 2 (a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(a)). She was sentenced to a term of 1 to 3 years. Defendant appeals, arguing (1) that the evidence was insufficient to establish her guilt beyond a reasonable doubt; (2) that the preliminary hearing testimony of Emily Turner, who had died prior to trial, was improperly admitted at trial; (3) that she did not knowingly and understandingly waive her right to a trial by jury; and (4) that she was denied equal protection of the law when the trial judge refused her request to be placed on the work release program on the basis that such programs are available only to men.

At trial, Theresa Martin, the sister of Emily Turner, testified that on June 19, 1971, at approximately 8:45 P.M., she left her apartment at 218 E. 43rd Street, Chicago, Illinois, and went to the front of the building to get her children who were outside playing. Present were Emily Turner, Robert Fleming and Charles Thompson. Emily Turner went to the corner drug store. Thereafter, defendant came out of the building and asked where the short lady was who had been arguing with her daughter. Charles Thompson asked defendant what she wanted, and several words were exchanged. Theresa Martin and Charles Thompson walked down the street to meet Emily Turner as she came out of the store. As the three of them returned to 218 E. 43rd Street, defendant was standing in front of the building. Emily Turner and defendant began talking. Defendant said, “Do you want to whip my two daughters?” Emily Turner replied that she did not want to argue with her but that she wanted to tell her what her daughter had said. Defendant slapped Emily Turner and a fight ensued. Defendant took out a knife and attempted to stab Emily Turner, cutting her dress. Charles Thompson intervened and said, “Why don’t you try to talle it over?” Defendant then shoved Thompson back onto a car and stabbed him in the chest. Thompson did not have a weapon.

Over defense objections, the preliminary hearing testimony of Emily Turner was admitted into evidence. Emily Turner had died on January 11, 1972, and was therefore unavailable to testify. At the preliminary hearing, Emily Turner had testified that on June 19, 1971, she came out of a drug store at 43rd near Indiana and met Charles Thompson and Theresa Martin. The three of them proceeded to 218 E. 43rd Street where they met the defendant. Defendant struck her and attempted to stab her. Charles Thompson stepped in between them and attempted to stop the fight. Defendant pushed Thompson down on a car and stabbed him in the chest. Charles Thompson did not have a weapon in his possession.

Robert Fleming testified in substantial accord to Theresa Martin and Emily Turner.

Albert Fitzpatrick, a Chicago Police officer, testified that in the evening hours of June 19, 1971, he responded to a cafi and proceeded to 218 E. 43rd Street, Chicago, Illinois. There he observed a group of people in the street and a man lying on the sidewalk, bleeding from his chest. He interviewed Emily Turner, Robert Fleming and Theresa Martin. Emily Turner appeared to have been drinking. Pursuant to information received from these people, he proceeded to defendant’s apartment where he informed her that there had been a stabbing in front of the building. Defendant admitted that she had done the stabbing. Defendant was transported to the poHce station where she was advised of her constitutional Miranda warnings. Thereafter, defendant stated that she and Emily Turner had an argument in front of the budding because Emily Turner had been calling her children vicious names. As they were arguing, the deceased, Charles Thompson, interceded and was stabbed. Defendant stated that she had taken the weapon back to her apartment, washed it and put it on the kitchen shelf. Defendant did not state that she received any physical injury as a result of the altercation. Police officers went back to defendant’s apartment where the knife was recovered.

William Jannotta, a Chicago pohce investigator, testified that on June 19, 1971, he was assigned to the stabbing of Charles Thompson. Pursuant to his investigation, he interviewed Emily Turner, Robert Fleming and Theresa Martin. Emily Turner appeared to have been drinking. He also interviewed the defendant. After defendant was given her constitutional Miranda warnings, defendant stated that she had been arguing with Emily Turner in front of the building and as she started to return to her apartment, the deceased stopped her and attempted to grab the knife that she had in her hand. During the struggle, the deceased was cut.

It was stipulated that if Dr. Jerry Kearns, the coroner’s pathologist, were called to testify, he would state that on June 20, 1971, he performed an autopsy on the body of Charles Thompson. In his opinion, Charles Thompson died of a stab wound to the chest and heart.

It was also stipulated that if George N. Christopoulos, the coroner’s toxicologist were called to testify, he would testify that an analysis of the blood of Charles Thompson showed the presence of .229 milligrams of ethanol.

Defendant testified that on June 19, 1971, between 8:30 and 9 P.M., her daughter, Rita Griggs, came to her apartment and told her that Emily Turner had been swearing at defendant’s children. She testified that she then went to the front of her building with Mrs. Lamb and her two daughters, Rita Griggs and Mary Louise. Shortly thereafter, Emily Turner returned to the building and defendant asked her why she had slapped and cursed her children. Emily Turner laughed and said, “Those damn bitches.” Defendant testified that, as she turned to go back into the building, Charles Thompson grabbed her arm, struck her and knocked her to the ground. He hit her in the face twice and kicked her on the leg. Defendant stated that she had a knife in her pocket which she had brought from her apartment. During the fight someone said that Charles Thompson had a knife, though she herself at no time saw a knife in the hands of Charles Thompson. She took her knife out of her pocket and stabbed the deceased once in the chest. She then returned to her apartment and called the police.

Rita Griggs and Mary Louise Beathea, the defendant’s daughters, testified in substantial accord with the defendant’s testimony. They stated that they observed a knife in the hand of Charles Thompson.

Defendant’s first contention is that she was not proven guilty of voluntary manslaughter under section 9 — 2(a) beyond a reasonable doubt. Defendant reasons that the evidence presented at trial gives rise to only two possible findings; either defendant was guilty of murder or the killing was justifiable by reason of self-defense. Defendant argues that the evidence adduced by the State was totally insufficient to establish that she was acting under sudden and intense passion resulting from serious provocation. Voluntary manslaughter is defined by section 9 — 2 (a) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9 — 2(a)), which states:

“A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation * #

The sufficiency of the provocation to cause a sudden and intense passion is a matter to be determined by the trier of fact. (People v. Stowers, 133 Ill.App.2d 627, 273 N.E.2d 493; People v. Binion, 132 Ill.App.2d 257, 267 N.E.2d 715.) One of the categories of serious provocation which has been well recognized is substantial physical injury or assault. People v. Clark, 15 Ill.App.3d 756, 305 N.E.2d 218.

In the case at bar, the evidence established that the defendant and Emily Turner were arguing in front of a building at 218 E. 43rd Street when Charles Thompson intervened. There was evidence that both Thompson and Turner had been drinking on the evening in question. By defendant’s own testimony, Charles Thompson struck her in the face several times, knocked her to the ground and kicked her leg. Defendant testified that, as she was pushed up against the car, she took a knife and stabbed Thompson once in the chest. Several witnesses testified that Thompson did not have a weapon. Under these circumstances, the trial court, acting as trier of fact, had ample evidence from which to conclude that the defendant was provoked by physical attack and was under a sudden and intense passion resulting from serious provocation by the deceased. (See People v. Jenkins, 10 Ill.App.3d 995, 295 N.E.2d 587; People v. Rodriguez, 129 Ill.App.2d 1, 262 N.E.2d 815.) A reviewing court wiH not reverse a finding of guilt of voluntary manslaughter unless the evidence is so unsatisfactory or improbable as to justify a reasonable doubt as to the defendant’s gufit. People v. Love, 10 Ill.App.3d 554, 294 N.E.2d 737.

Defendant next contends that the use of the preliminary hearing testimony of Emily Turner as evidence at the trial was improper. Defendant argues that, since the prior testimony was at a preliminary hearing and not at a trial, it did not qualify as an exception to the hearsay rule, and that the use of the prefiminary hearing testimony at trial denied her the right to cross-examine witnesses as guaranteed by the Sixth Amendment to the United States Constitution. The law is clear that the testimony of a witness at a preliminary hearing is admissible into evidence at trial when the witness is unavailable without fault on the part of the State and when ample opportunity to cross-examine had existed at the preliminary hearing. The rule is stated in 3 Wharton’s Criminal Evidence §650 (13th ed. 1973):

“As an exception to the hearsay evidence rule, the testimony of a witness at a preliminary hearing or former trial may be allowed in evidence at a subsequent trial if a proper foundation has been laid, including a showing that the witness is no longer ‘available.’” (Emphasis added.)

In California v. Green, 399 U.S. 149, 166, the United States Supreme Court, in discussing this issue, said:

“In the present case respondent’s counsel does not appear to have been significantly limited in any way in the scope or nature of his cross-examination of the witness Porter at the preliminary hearing. If Porter had died or was otherwise unavailable, the Confrontation Clause would not have been violated by admitting his testimony given at the preliminary hearing the right of cross-examination then afforded provides substantial compliance with the purposes behind the confrontation requirement, as long as the declarant's inability to give live testimony is in no way the fault of the State.”

The law as stated in Green had been applied in this State. People v. Coburn, 20 Ill.App.3d 60, 313 N.E.2d 270; see also Bergen v. People, 17 Ill. 426; People v. Holman, 313 Ill. 33, 144 N.E. 313; People v. Jackson, 41 Ill.2d 102, 242 N.E.2d 160; People v. Burton, 6 Ill.App.3d 879, 286 N.E.2d 792.

In the case at bar, Emily Turner had testified at the preliminary hearing. At that time, defendant was represented by the same counsel who represented her at trial. Counsel cross-examined Emily Turner in a comprehensive fashion and was not limited in any way. Prior to trial, Emily Turner had died and was therefore unavailable to testify. Under these circumstances, the admission into evidence at trial of Emily Turner’s preliminary hearing testimony was proper.

Defendant’s next contention is that she did not knowingly and understandingly waive her right to a trial by jury. The transcript demonstrates that defendant was represented by privately retained counsel, who informed the trial judge that it would be a bench trial. Thereafter, the following occurred:

“THE COURT: Miss Beathea, in the State of Illinois you have a right to a trial,by jury. Do you understand that?
MR. STARKE [defense counsel]: We are waiving a jury.
THE COURT: Do you understand that you have a right?
MRS. BEATHEA: Yes.
THE COURT: Do you wish to waive that right and be tried by me, counsel says, is that right?
MRS. BEATHEA: Yes.
THE COURT: Will you so indicate by signing what we call a jury waiver?
MR. STARKE: Sign here, please.
THE COURT: Of course I imagine Mr. Starke the plea is not guilty?
MR. STARKE: That’s right. Jury waived.”

This court has often stated the rule that there is no specific formula for determining whether a defendant’s waiver of the right to a jury trial is knowingly and understandingly made. Each case depends upon the particular facts and circumstances of that case. (People v. Richardson, 32 Ill.2d 497, 207 N.E.2d 453; People v. Diesel, 128 Ill.App.2d 388, 262 N.E.2d 15.) A lengthy explanation of the consequences of a jury waiver is not a prerequisite to the validity of that waiver. People v. Geary, 8 Ill.App.3d 633, 291 N.E.2d 13.

Here, privately retained counsel informed the trial judge that there would be a bench trial. Thereafter, defendant herself was specifically admonished that she had a right to a trial by a jury. Defendant stated that she understood her rights and wished to waive her right to a trial by jury. Defendant thereafter voluntarily signed a jury waiver. Under these circumstances, we conclude that defendant knowingly and intelligently waived her right to a trial by jury. People v. Sanders, 14 Ill.App.3d 826, 303 N.E.2d 552; People v. Hill, 102 Ill.App.2d 77, 243 N.E.2d 491.

Defendant’s final contention is that she was denied equal protection of the laws when her request that she be placed in a work-release program was denied on the basis that such programs are not avaüable to women, but are avaüable only to men. The State, in a supplemental record, has pointed out that defendant was paroled from the penitentiary on April 17, 1973, with her parole to expire on November 17, 1974.

Here, defendant does not seek a reversal of her conviction, but requests only that her case be remanded for resentencing or, in the alternative, remanded for a hearing for placement on the work-release program. Even if we were to grant defendant’s prayer for relief, it would in no way benefit her. Defendant has already been paroled and being admitted to the work-release program would require her to again be incarcerated. A remandment for resentencing at this time would not serve any useful function to the defendant. Under these circumstances, defendant’s argument is moot and need not be considered.

For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

HAYES, P. J„ and DOWNING, J., concur.


author: Mr. JUSTICE LEIGHTON.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Milford G. Maynard, Defendant-Appellant.
    (No. 58869;
    First District (2nd Division)
    December 3, 1974.

      James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Linda West Conley, Assistant State’s Attorneys, of counsel), for the People.
   Opinion by

Mr. JUSTICE LEIGHTON.


author: Mr. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. Mack A. Tompkins, Defendant-Appellee.
    (No. 59056;
    First District (4th Division)
    November 27, 1974.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. GiHis, Mariann Twist, and Nicholas P. Iavarone, Assistant State’s Attorneys, of counsel), for the People.
    James J. Doherty, Public Defender, of Chicago (James N. Gramenos, Assistant Public Defender, and Jerry M. Aufox, Senior Law Student, of counsel), for appellee.
   Mr. JUSTICE BURMAN

dehvered the opinion of the court:

Defendant, Mack A. Tompkins, was indicted for the murder of Cornelia Reese. On May 9, 1972, he filed a pretrial motion to suppress physical evidence consisting of clothing and shoes allegedly taken from him without a warrant in violation of the Constitution of the State of Illinois. At trial defense counsel moved to orally amend this petition on its face to include an assertion that the introduction of this evidence would be in violation of section 108 — 2 of the Illinois Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 108 — 2). The trial court sustained the motion to suppress solely on the statutory ground of section 108 — 2. Pursuant to Supreme Court Rule 604, the State appeals.

The facts are not generally in dispute. On May 14, 1971, defendant was arrested in connection with the murder. At the time of his arrest; articles of clothing were taken from his persoii over his objections. That same day defendant was released from custody without charges being preferred. The police retained possession of the clothing, and a chemical analysis was performed on the items. On May 21, 1971, a warrant was issued for defendant’s arrest. He was arrested in Cleveland, Ohio on February 5, 1972, and returned to Chicago for trial.

Section 108 — 2 of the Illinois Code of Criminal Procedure provides:

“Custody and Disposition of Things Seized.) An inventory of all instruments, articles or things seized on a search without warrant shall be given to the person arrested and a copy thereof delivered to the judge before whom the person arrested is taken, and thereafter, such instruments, articles or things shall be handled and disposed of in accordance with Sections 108 — 11 and 108 — 12 of this Code. If the person arrested is released without a charge being preferred against him all instruments, articles or things seized, other than contraband shall be returned to him upon release.” (Emphasis ours.)

The State contends that the failure to comply with section 108 — 2 constitutes a mere technical error which does not compel a suppression of the evidence. We agree. This is not to say that the evidence could be used if it were seized in violation of the defendant’s constitutional rights. But the record shows that the trial court specifically did not rule on this issue, and unfortunately, it is not before us.

Section 108 — 2 must be read in conjunction with section 108 — 14 of the same statute which states:

“No warrant shall be quashed nor evidence suppressed because of technical irregularities not affecting the substantial rights of the accused.”

The aforementioned statute was applied in People v. Smith, 50 Ill.2d 229, wherein the defendant unsuccessfully urged the suppression of evidence based on a violation of section 108 — 2. The court held that a failure to comply with a statutory direction to furnish an inventory of seized materials pursuant to a warrantless search will not, in the absence of prejudice, invalidate an otherwise proper search and seizure.

Similarly, in People v. Pruitt, 16 Ill.App.3d 930, 307 N.E.2d 142, the defendant contended that certain clothing should have been suppressed from evidence when, in violation of section 108 — 2, the police failed to return these items upon his release. The Second District court held that since the retention was only a violation of a statutory right, and not a constitutional one, the clothing was not subject to the exclusionary rule and did not require suppression (citing People v. Smith).

We note that the defendant has interjected the issue of whether the arrest, itself, was constitutional. As we stated above, the constitutionality of the defendant’s arrest was never considered nor ruled upon by the court below. Since the issue is not before us, the cases cited by the defendant on this matter are inapplicable.

In searching case law we find a wide spectrum of decisions wherein the courts have found that a mere technical violation of statutory search and seizure procedure did not affect the defendant’s substantial rights. (See People v. Canaday, 49 Ill.2d 416; People v. Hawthorne, 45 Ill.2d 176; People v. Williams, 36 Ill.2d 505; People v. La Valley, 7 Ill.App.3d 1051, 289 N.E.2d 45; People v. Laws, 7 Ill.App.3d 826, 288 N.E.2d 890; People v. Foster, 72 Ill.App.2d 337, 219 N.E.2d 683; People v. Aiuppa, 48 Ill.App.2d 95, 198 N.E.2d 738.) We are compelled by the record to characterize the instant statutory violation as a mere technical error. Accordingly, we hold that no substantial rights of the defendant were infringed.

' The order suppressing physical evidence is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Robert Klytta, Defendant-Appellant.
    (No. 59041, 59396 cons.;
    First District (4th Division)
    November 27, 1974.

      Elliott M. Samuels, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and John B. Adams, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

At a jury trial in the Circuit Court of Cook County the defendant, Robert Klytta, was charged with the offenses of burglary, theft and criminal trespass to a vehicle. The jury found him not guilty of theft and burglary, but guilty of criminal trespass to a vehicle. As a result of this conviction the defendant’s probation, granted in a prior case, was revoked. He now appeals from both the conviction and the revocation of his probation.

The issues for review are whether the defendant was deprived of a fair trial because the prosecutor’s remarks during closing arguments were inflammatory and prejudicial; whether he was proved guilty of performing the acts alleged in the indictment knowingly and intentionally; whether the sentence imposed was excessive; and whether he should be given credit on his prison sentence for time served on probation.

Police officer Harvey Hirsch testified he received a call on his radio in the early morning hours of October 28, 1970, and proceeded to 5650 North Western Avenue, Chicago, Illinois. In the alley at the rear of the building he saw a man he identified as the defendant peering around the side of the building. Several moments later a vehicle sped out of the alley and a 4-mile high-speed chase followed. Eventually, the car which the defendant was driving hit a tree, and he was placed under arrest.

Mr. Rakic Miloje testified through an interpreter that the car was his, and he had not given the defendant permission to use it.

Mr. Jerome Hoffman testified that he was president of H.P.C. Incorporated, located at 5650 North Western Avenue, Chicago, and that he received a call at about 5 A.M. on the day in question from the ADT security service. He went to his factory where he observed that both the front and rear doors had been tampered with. He made a check of his inventory but was unable to find anything missing.

The defendant testified that at the time of the incident he was taking approximately 600 milligrams of methamphetamines (speed) a day. He stated he remembered driving the car and being involved in the chase as well as things after he wrecked the car, but to the best of his knowledge he never was inside the building at 5650 North Western Avenue. He did not remember how he got into the car.

Dr. Richard Rappaport, a psychiatrist, testified in response to a hypothetical question that a person who took the quantity of drugs testified to by the defendant would be irritable, aggressive, impulsive, talkative, suspicious and suffering from some forms of physical exhaustion, and that the person’s family, social, ethical and moral values would be altered.

The State’s first rebuttal witness, Carl Shamett, director of programs for Gateway Housing Foundation and an ex-drug user, testified that a typical speed user would consume approximately 100 milligrams a day. He stated that while using amphetamines he never lost his sense of right and wrong, and that while he was using 150 milligrams a day he would not have been able to control an automobile.

Ernest Ursitti, an investigator with the Chicago Police Department, testified he was present at the scene where the defendant had his accident and had a chance to observe him in the hospital and in the police station. In his opinion the defendant was not intoxicated in any way.

Officer Hirsch also testified as a rebuttal witness for the State. He had a. conversation with the defendant after the arrest and saw the defendant walk into the police station. He stated the defendant appeared to be normal.

The jury found him guilty of' criminal trespass to a vehicle,' and after a hearing in aggravation and mitigation the defendant was" sentenced to a term of one year in the County Jail.

On October 15, 1970, the defendant had pleaded guilty to the offense of burglary and - was placed on probation for a period of 5 years.' As a result on May 1, 1973, a hearing was held on a rule to show cause why the defendant’s probation should not be revoked. After the hearing his probation was revoked, and he was sentenced to the Illinois State Penitentiary for a term of 2 to 6 years, the sentence to run concurrently with the 1-year term.

The defendant first argués the prosecutor’s remarks during his closing argument were prejudicial and were a material factor in the jury finding him guilty of criminal trespass to a vehicle. The record reflects the following remarks by the prosecutor:

“MR. MONTEMURRO: * * * And then he let the People of the State of Illinois support his family, people like you, Mr. Davis.
MR. SAMUELS: Objection, your Honor.
THE COURT: I will sustain the objection.
MR. MONTEMURRO: People like everyone else in this county, County of Cook, State of Illinois, and people who work, people who work seven days a week, five days a week, seventy, eighty hours a week to support a family. He wants sympathy. Ladies and Gentlemen, while you were out working, and the other people, he was in your house robbing it.
MR. SAMUELS: Objection.
THE COURT: Overruled.
MR. MONTEMURRO: That’s how he supported his habit, hitting drugstores and everything and everybody else that he could get to give him a lot of sympathy.
# # *
Let him go, let him walk out on the sheet, go head, —
MR. SAMUELS: Objection.
THE COURT: Overruled.
MR. MONTEMURRO: You have that right. But when you do, Ladies and Gentlemen, take him home with you because I don’t want him walking around my neighborhood at night.
* # e
He didn’t want to get caught, and he didn’t want to be here today. All he wanted to do was pillage and plunder the homes, the sanctuaries of people like you and me to support.
MR. SAMUELS: Objection to this, your Honor.
MR. MONTEMURRO: He elicits—
THE COURT: Overruled.
MR. MONTEMURRO: —self-gratifying habits of narcotics. Thank you very much.”

The defendant states that these remarks are in clear violation of the well established rules that it is improper for the prosecutor to address the jurors individually or play upon their personal circumstances or fears. People v. Garreau (1963), 27 Ill.2d 388; People v. Provo (1951), 409 Ill. 63; People v. Payton (1966), 72 Ill.App.2d 240.

The defendant also argues the prosecutor prejudicially made personal slurs against him and commented adversely on his morality and sexual life, although these matters were not related to any issue at trial. People v. Wilson (1948), 400 Ill. 461.

The defendant maintains this was a close case as evidenced by the fact that the jury acquitted him of two of the three charges and that the prejudicial effect of the remarks contributed to his conviction on the third charge.

This court cannot condone the remarks of the prosecutor, but we find they could not have been a material factor in the defendants conviction in light of the overwhelming evidence of guilt. In the case of People v. Berry (1960), 18 Ill.2d 453, the court stated:

“Where it appears that improper remarks do not constitute a material factor in the conviction, or that they are of such a minor character that prejudice to defendant is not their probable result, the verdict will not be disturbed.”

Furthermore, the fact the jury acquitted the defendant on two counts convinces us the jury was not swayed in any way by the improper remarks of the prosecutor.

The defendant in this case does not contest the fact that he performed the acts alleged in the indictments with respect to criminal trespass to a vehicle. The defendant only contests that he performed the acts knowingly and intentionally. The jury heard evidence of how the defendant had led an automobile chase which resulted in an accident only after 4 miles of high-speed driving. It heard testimony of how the defendant acted normally after the accident at the crash sight and at the police station. It also heard from an ex-drug-user who stated he would not have been able to control an automobile after using one-fourth of the amount of speed testified to by the defendant.

We find there was ample evidence to support an inference by the jury that the defendant failed to tell the truth when he stated he was unable to remember how he got into the stolen car.

The defendant also raises two issues with regard to his sentencing. He asserts that the sentences are excessive and that he should be given credit for time served on probation.

The State does not contest the first issue, and the law is clear that time served on probation shall be credited against a sentence of imprisonment. (Ill. Rev. Stat., 1972 Supp., ch. 38, § 1005 — 6—4(h); Peo ple v. Schreiber (1973), 18 Ill.App.3d 410.) However, it is well established in Illinois that the imposition of sentence is a matter of judicial discretion, and the sentence imposed by the trial court will not be disturbed on review unless the trial judge abused his discretion. (People v. Burbank (1972), 53 Ill.2d 261.) In this case the sentence was within the statutory limits, and the trial judge had the benefit of a presentence report. We hold this cause should be remanded to the trial court to credit the defendant with time served while on probation. The concurrent terms of 1 year and 2 to 6 years will stand.

Affirmed and remanded with directions.

ADESKO, P. J., and BURMAN, J., concur.


author: PER CURIAM.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Jeffery Love, Defendant-Appellant.
    (No. 59547;
    First District (3rd Division)
    December 5, 1974.
    James J. Doherty, Public Defender, of Chicago (Saul H. Brauner and Richard D. Kharas, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago'(Patrick T. Driscoll, Jr., Jerome Charles Randolph, and John T. Theis, Assistant State’s Attorneys, of counsel), for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE ADESKO

text:
    The People of the State of Illinois, Plaintiff-Appellant, v. S & F Corporation et al., Defendants-Appellees.
    (Nos. 59086-7 cons.;
    First District (4th Division)
    November 27, 1974.

      Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Lee T. Hettinger, and Jerome Charles Randolph, Assistant State’s Attorneys, of counsel), for the People.
    Patrick A. Tuite, of Chicago, for appellees.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

This appeal arises from an order of the trial court granting a motion made by the defendants to suppress evidence. The subject matter of the motion was a movie entitled “The Director’s Dilemma.” The State brings this appeal pursuant to Illinois Supreme Court Rule 604(a)(1). Ill. Rev. Stat. 1971, ch. 110A, par. 604(a)(1).

Two complaints were sworn out against the defendants on August 25, 1972, charging them with the offense of obscenity. (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 20(a)(3).) The charges of violating the Illinois obscenity statute stem from exhibition of the film “The Director’s Dilemma” at the Rush Theatre, Chicago, Illinois. In addition to the complaints two subpoenas duces tecum were also issued on August 25, 1972. One was directed to the defendant S & F Coiporation and the other to “Person in Charge, Rush Theatre.” The subpoenas commanded an appearance and testimony in an adversary hearing before Judge Lionel J. Berc to determine whether the film is obscene. The subpoenas also directed that the film be produced without any deletions or additions being made. On August 29, 1972, the defendants made a motion to quash the subpoenas duces tecum but Judge Berc denied it. Defendant Finzelber, who is the president of the corporate defendant, refused to comply with the subpoena duces tecum and Judge Berc entered an order finding Finzelber to be in wilful and direct contempt of the court. The order directed that Finzelber be held in custody without bail until he complied with the subpoena duces tecum.

An emergency motion for bail was filed by defendant Finzelber with the Illinois Supreme Court on August 29, 1972. On the same day Mr. Justice Schaeffer denied the motion. Subsequently, defendant Finzelber complied with the subpoena duces tecum and was released from custody.

An adversary hearing was held on August 30, 1972, and Judge Berc found the film to be obscene and ordered it impounded and surrendered to the police for preservation as evidence. A criminal prosecution was commenced against the defendants and a motion to suppress the film was made. The motion to suppress was premised on the assertion that production of the film, violated ■ defendant Finzelber’s fifth amendment rights. On February 28, 1973, the trial court, Judge Murphy presiding, sustained the motion to suppress and the State appeals.

The State maintains that neither the corporate defendant, S & F Corporation, nor the individual defendant, Sidney Finzelber, can validly claim the privilege against self-incrimination. In addition the State asserts that a subpoena duces tecum requiring the production of a motion picture does not violate Mr. Finzelber’s fifth amendment rights against self-incrimination. We are of the opinion that the State’s position as to the inability of the defendants’ to invoke the fifth amendment privilege against self-incrimination is correct.

It is well-settled that a corporation cannot assert the privilege against self-incrimination. (Hale v. Henkel, 201 U.S. 43, 50 L.Ed. 652, 26 S.Ct. 370 (1906); Wilson v. United States, 221 U.S. 361, 55 L.Ed. 771, 31 S.Ct. 538 (1911).) In addition it has been equally well-established that an officer of a corporation cannot refuse to produce corporate books and records on the ground that the disclosure might incriminate the corporation or the officer himself. As was stated in Wilson, supra, at pages 384 to 385:

“If the corporation were guilty of misconduct, he [the corporate officer] could not withhold its books to save it; and if he were implicated in the violations of law, he could not withhold the books to protect himself from the effect of their disclosures. The reserved power to visitation would seriously be embarassed [sic] if not wholly defeated in its effective exercise, if guilty officers could refuse inspection of the records and papers of the corporation. No personal privilege to which they are entitled requires such a conclusion. It would not be a recognition, but an unjustifiable extension, of tire personal rights they enjoy. They may decline to utter upon the witness stand a single self-criminating word. They may demand that any accusation against them individually be established without the aid of their oral testimony or the compulsory production by them of their private papers. But the visitorial power which exists with respect to the corporation of necessity reaches the corporate books, without regard to the conduct of the custodian.”

The defendants in the case at bar, therefore, had no privilege against self-incrimination that could be legitimately asserted.

Defendants, however, maintain that in this case the privilege against self-incrimination could be validly claimed by the corporation and the individual because a film is not a business record regularly kept in the course of business, nor is it a record required to be kept by law. The defendants contend that Hale v. Henkel, supra, Wilson v. United States, supra, and all the Illinois cases dealing with a corporation’s inability to invoice the privilege against self-incrimination have dealt with the books, records, and journals of the corporation and that it is only when disclosure of such materials is sought that the corporation and its officers are prevented from invoking the fifth amendment privilege. However, there is nothing in the cases to require such a narrow interpretation. There is no question that the film at issue in this case was corporate property. In the case of People v. Brown, 339 N.Y.S.2d 470, 72 Misc.2d 526 (1972), the prosecution in an obscenity case after having been ordered to return certain material which had been seized pursuant to a search warrant sought its production for use in trial by means of a subpoena duces tecum. The defendant moved to quash the subpoena on the ground inter alia that it constituted a violation of his fifth amendment rights. The court did not agree with the defendant and denied the motion. In regards to the defendant’s fifth amendment claim, the court after stating that the privilege was not available to a corporation and that a corporate officer could not claim the privilege even though disclosure would incriminate himself, stated at page 473: “That the material subpoenaed here is corporate property rather than corporate books is not significant, and the issue is the same.” We agree and the focal point of attention must be whether disclosure of the material sought, be it corporate books and records or other corporate property, would violate the protection afforded to the citizenry through the Fifth Amendment to the United States Constitution.

The parameters of the protection afforded by the fifth amendment were well-stated by the United States Supreme Court in United States v. White, 322 U.S. 694, 698, 88 L.Ed. 1542, 1546, 64 S.Ct. 1248, 1251 (1944).

“The constitutional privilege against self-incrimination is essentially a personal one, applying only to natural individuals. It grows out of the high sentiment and regard of our jurisprudence for conducting criminal trials and investigatory proceedings upon a plane of dignity, humanity and impartiality. It is designed to prevent the use of legal process to force from the lips of the accused individual the evidence necessary to convict him or to force him to produce and authenticate any personal documents or effects that might incriminate him.”

In addition, the Supreme Court in White after reiterating that the privilege against self-incrimination cannot be utilized by or on behalf of a corporation stated, “Moreover, the papers and effects which tire privilege protects must be the private property of the person claiming the privilege, or at least in his possession in a purely personal capacity. Boyd v. United States, 116 U.S. 616.” (322 U.S. at 699, 88 L.Ed. at 1546, 64 S.Ct. at 1251; accord, People v. Ryan, 410 Ill. 486, 494, 103 N.E.2d 116, 120 to 121, (1951). The property which was the subject of the subpoenas duces tecum in the case at bar did not belong to a natural individual but was owned by the corporate defendant, S & F Corporation. The film was not the private property of the person claiming the privilege, defendant Finzelber, nor was it in his possession in a purely personal capacity. As was stated in People v. Modern Amusement Co., 340 N.Y.S.2d 748, 752, 72 Misc.2d 950 (1973):

“In addition, the defendants are met by still another insurmountable obstacle: motion picture film cannot be equated with or analogous to private papers or documents. They are indeed at opposite poles since the subpoenaed film was intended for and allegedly shown to theater-goers. By its nature the film is a public item not intended for the sole use of the defendants, as would be the case for private books or papers.”

It is, therefore, apparent that the corporate and individual defendants in the case at bar had no privilege against self-incrimination that could be validly asserted and that production of the film in this case does not violate the protection afforded to the citizenry by the Fifth Amendment to the United States Constitution.

Since we are of the opinion that the fifth amendment could not be legitimately invoked by either of the defendants, we deem it unnecessary to discuss the State’s alternative theory that production of the film does not violate the fifth amendment because it does not constitute testimonial or communicative evidence of the defendants. In addition the defendants’ brief contains arguments relating to Judge Berc’s finding defendant Finzelber in direct contempt of court, but no notice of appeal was filed within 30 days of that order. Therefore, this issue and the arguments pertaining thereto are not properly before this court. Ill. Rev. Stat. 1971, ch. 110A, par. 606(a) and par. 303(a).

We are of the opinion that the trial court erred in granting the defendants’ motion to suppress evidence. Therefore, for the reasons herein stated, the order of the Circuit Court of Cook County is reversed.

Reversed.

BURMAN and DIERINGER, JJ., concur.


author: Mr. JUSTICE HALLETT

text:
    John Kokenes et al., Plaintiffs-Appellees, v. Cities Service Oil Company, Defendant and Third-Party Plaintiff-Appellant.—(Anthony Oil Company, Third-Party Defendant-Appellee.)
    (No. 59077;
    First District (1st Division)
    November 27, 1974.
    Samuel Morgan and Arnold J. Karzov, both of Chicago, for defendant-appellant.
    Tom L. Yates, of Chicago (Carl E. Abrahamson, of counsel), for plaintiffs-appellees.

      Richard J. Short, of Chicago, for defendant-appellee.
   Mr. JUSTICE HALLETT

delivered the opinion of the court:

The plaintiffs, lessors of a gasoline service station and car wash to the defendant Cites Service Oil Company, after a jury trial, recovered a judgment for $25,000 against said lessee, which, in turn, recovered a third-party judgment for $8,025 against its sublessee, the Anthony Oil Company. The defendant and the third-party defendant appeal. We conclude that the said lessee is not liable to the lessors and therefore reverse both judgments, without remandment.

On January 10, 1956, the plaintiffs, John and Sophie Kokenes (hereinafter lessors), entered into a written lease with the Cities Service Oil Company (hereinafter Cities Service) of the premises at 5036 West 26th Street, in Cicero, Illinois, consisting of a gasoline service station and a car-wash facility. The lease ran for an initial period of 10 years (June 1, 1956-May 31, 1966) with an option to renew for another 5 years. The lease recognized that subleases and assignments could be made but did not require the lessor’s approval of such subleases or assignments. Said lease also expressly provided (in paragraph 8) that,

“Lessor agrees to place and keep all improvements leased hereunder in good operating condition and to paint, replace and reconstruct any improvements which without the fault of Lessee may be destroyed or injured by fire or other casualty or become worn or otherwise no longer properly useful and efficient; * # *”
and (in paragraph 11) that,
“* * * Upon the termination hereof Lessee shall surrender the demised premises in as good condition as when received, reasonable wear and tear and loss by fire, casualty or by causes not the fault of Lessee, excepted. * * *” (Emphasis ours.)

The first subtenant was the lessor, John Kokenes, who operated the station and car wash for 1 year. Other subtenant operators followed, but he continued to visit the premises several times a week, purchasing gas and a car wash and was always familiar with its operation.

When the 10-year period expired the lease was extended for another 5 years and Cities Service then entered into a written sublease to the Anthony Oil Company (hereinafter Anthony), which lease ran from June 1, 1966, until May 31, 1971, and included a "yield-back” provision providing for the return of the premises to Cities Service at the expiration of the lease “in good order and condition, reasonable wear, tear and use excepted.”

From that time on, Anthony sublet the premises to various individuals who operated the station and car wash under oral leases.

In late April and early May of 1971, the premises were being operated by Ken Brown and Larry Brown, his father, under an oral arrangement with Anthony and all employees were hired by them, not by Cities Service or Anthony.

About May 1,1971, a number of young men entered the premises while they were not in operation and vandalized them by tearing up the roof, breaking windows and hauling pipes, chains and motors away in a truck and trailer. Only one of these persons was specifically identified as being “Jim,” an employee of Ken Brown, one of the operators put in possession by Anthony. The others were generally identified as boys who worked or had worked at the car wash. Neither Cities Service nor Anthony ever attempted to repair the premises, and they remained vacant to the end of the term.

The lessors then sued Cities Service for damages for failure “to surrender the premises in as good condition as when received.” Cities Service, in turn, brought in its sublessee, Anthony, on a third-party indemnity action.

The case was tried before a jury and, after motions by Cities Service and Anthony for directed verdicts had been made and denied, a verdict for $25,000 was returned in favor of the lessors against Cities Service. A verdict was also returned in favor of Cities Service against Anthony for $10,000. Judgments were entered on said verdicts and the usual post-trial motions, including motions by Cities Service and Anthony for judgments notwithstanding the verdicts or for a new trial, were filed. Cities Service’s third-party judgment against Anthony was cut from $10,000 to $8,025 but all other motions were denied and these appeals foHowed.

Many extremely complex and ingenious arguments are made by the various parties but, in our considered opinion, only one relatively simple issue is determinative, i.e.i Under the specific “yield-back” covenant here involved, is Cities Service liable to the lessors for damages done to their premises by said vandals?

We answer this in the negative and therefore reverse both judgments, without remandment.

At common law, in the absence of an express provision to the contrary in the lease, the tenant was obliged to yield back the premises at the end of his term in the same condition as when received, ordinary wear and tear excepted. As was said in Leavitt v. Kostel (1961), 32 Ill.App.2d 313, 317, 177 N.E.2d 882:

“The undertaking of the tenants to yield back the premises at the termination of the lease is a customary clause which, insofar as it excepts reasonable wear and tear, is expressive of the common law.”

See also 49 Am. Jur. 2d Landlord and Tenant § 939, at 913-914 (1970); 51C C.J.S. Landlord and Tenant § 408, at 1050 (1968); 24 I.L.P. Landlord and Tenant § 292, at 480 (1956).

Under such a relationship, a lessee might be held liable for damages to the leased premises caused by the negligence or even deliberate acts of a sublessee or even a stranger, even though the lessee was not himself at fault and may not even have known of such acts. See 49 Am. Jur. 2d Landlord and Tenant §§ 501, 970, at 483, 943 (1970); McGaff v. Scrimshire (Tex. Civ. App. 1913) 155 S.W. 976, 977; Dixie Fire & Casualty Co. v. Esso Standard Oil Co. (1965), 265 N.C. 121, 143 S.E.2d 279, 282-283, 284-285.

In the case at bar, however, the written lease between the lessors and Cities Service expressly provided (in paragraph 8) that:

“Lessor agrees to place and keep all improvements leased hereunder in good operating condition and to paint, replace and reconstruct any improvements which without the fault of Lessee may be destroyed or injured by fire or other casualty or become worn or otherwise no longer properly useful and efficient; * * *”
and (in paragraph 11) that:
“* * * Upon the termination hereof Lessee shall surrender the demised premises in as good condition as when received, reasonable wear and tear and loss by fire, casualty or by causes not the fault of Lessee, excepted. * * *” (Emphasis ours.)

It is well established that, in construing a written lease, words used are to be given their commonly accepted meaning and, in the words of our supreme court in Szulerecki v. Oppenheimer (1918), 283 Ill. 525, 532, 119 N.E. 643:

“* * * In the construction of a lease every part must be construed with reference to all other portions of the lease and so that every part may stand, if possible; and no part of it, either in words or sentences, shall be regarded as superfluous or void if it can be prevented. Morris Co. v. Southworth, 154 Ill. 118.”

This same view was expressed in Leavitt v. Kostel (1961), 32 Ill.App.2d 313, 318, 177 N.E.2d 882, as follows:

* * We must favor a construction which would regard neither paragraph as superfluous. (Lewis v. Real Estate Corp., 6 Ill.App.2d 240, 127 N.E.2d 272; Cerny-Pickas & Co. v. C. R. Jahn Co., 7 Ill.2d 393, 131 N.E.2d 100.)”

See also 49 Am. Jur. 2d Landlord and Tenant §§ 963, 969, 973, at 938, 943, 945 (1970); 51C C.J.S. Landlord and Tenant § 409, at 1051-1052 (1968); Brenzel v. Kirschner (1906), 128 Ill.App. 136, 138; Weill v. Cen tralia Service & Oil Co. (1943), 320 Ill.App. 397, 401, 51 N.E.2d 345; Bradley v. S. S. Kresge Co. (7th Cir. 1954), 214 F.2d 692, 694.

As a result, Cities Service can only be held liable for such damages as are here involved if the facts establish that they were caused by “the fault of Lessee.”

Most of the young men who vandalized the premises about the first of May, 1971, were generally identified only as boys who worked or had worked at the car wash and one of them, specifically identified only as “Jim,” was apparently an employee of Ken Brown, one of the operators put in possession by Anthony.

Even were we to take the view (which we do not quite reach) that Cities Service is responsible not only for the actions of its own employees acting within the scope of their duties but is also responsible for the actions of any of its sublessees’ employees acting within the scope of their duties, it is obvious in the case at bar that, in entering the premises when they were not in operation, and in vandalizing them by tearing up the roof, breaking windows and hauling pipes, chains and motors away in a truck and trailer, said persons had completely abandoned the business of their employer and were, on their own, committing malicious, wanton, willful acts which would in no way further the interests of their employer.

The law in such a situation is capsulized in 1 I.L.P. Agency § 183, át 790 (1953), as follows:

“Wanton, willful, and malicious acts. A principal is liable for torts which are willfully, wantonly, or maliciously committed by an agent acting under the authority or direction of the principal. Where, however, the agent abandons the business of the agency and commits an act outside the scope of his authority or employment in a wanton, willful, or malicious manner, the principal is not liable therefor.”

In the early (1849) case of Johnson v. Barber, 10 Ill. 425, our supreme court, at page 430, said:

“* * * If one of the defendants, while engaged in the prosecution of the business of the other, carelessly or negligently set fire to the prairie, or even purposely, with a view to benefit or protect the interests of the employer, the latter would be liable for the consequences; but if he set out the fire from motives of malice or wantonness, the principal would not be liable, for that would be an abandonment of the business of the agency.”

This was followed (in 1851), by Tuller v. Voght, 13 Ill. 277, where the court, at page 285, said:

“We look upon the rule of the common law as well settled, that the master is not liable for the wilful trespasses of the servant, which are not committed in furtherance of the business of the master. McMorris v. Crickett, 1 East, 106. This principle has already been adopted by this comt, in the case of Johnson v. Barber, 5 Gilman, 425. That action was against the master and servant jointly, and the court said, ‘If one of the defendants, while engaged in the prosecution of the business of the other, carelessly or negligently set fire to the prairie, or even purposely, with a view to benefit or protect the interests of the employer, the latter would be liable for the consequences; but if he set out the fire from motives of malice or wantonness, the principal would not be liable, for that would be an abandonment of the business of the agency.’ ”

To the same effect, see Sawyer v. Martins (1888), 25 Ill.App. 521, 523; Callahan v. Hyland (1895), 59 Ill.App. 347, 349; Chicago Consolidated Bottling Co. v. McGinnis (1899), 86 Ill.App. 38, 49; Mallory v. Day Carpet & Furniture Co. (1927), 245 Ill.App. 465, 470; and Bremen State Bank v. Hartford Accident & Indemnity Co. (7th Cir. 1970), 427 F.2d 425, 428.

And where, as here, it is obvious that the acts of vandalism could not reasonably be considered as being within the scope of their employment, the court should so hold as a matter of law. In Boehmer v. Norton (1946), 328 Ill.App. 17, 65 N.E.2d 212, this court, through Mr. Justice Burke, at page 24, pointed out that:

“While in many instances the scope of employment is a question for the jury, yet where reasonable men could not come to a conclusion from the evidence that a servant was acting within the the scope of his employment, it is the duty of the court to hold that as a matter of law, he was not so acting.”

We therefore conclude and hold that, under the specific “yield-back” covenant here involved and the uncontroverted evidence in this case, Cities Service is not liable to the lessors for damages done to their premises by said vandals.

We therefore reverse both judgments without remandment.

Judgments reversed.

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