text:
      In re Interest of Bobby Bryant—(The People of the State of Illinois, Petitioner-Appellee, v. Bobby Bryant, Respondent-Appellant.)
    (No. 58768;
    First District (4th Division)
    March 27, 1974.

      Paul Bradley, Deputy Defender, of Chicago (Steven Clark and Peter R. Meyers, Assistant Appellate Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Thomas A. Mauet, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE ADESKO

delivered the opinion of the court:

A petition for adjudication of a minor as a delinquent was filed on August 26, 1972, against Bobby Bryant, respondent in this appeal, charging that he had committed the offenses of battery upon Officer Robert Brennan and aggravated assault upon Officer Michael Duffin. After a hearing on November 21, 1972, the court made a finding of delinquency on both counts and a social investigation was called for by the court. Respondent appeals this finding and contends that:

(1) The petition for the adjudication of a minor as a delinquent failed to allege that the officer was engaged in the execution of his official duties and was, therefore, insufficient to charge aggravated battery;
(2) The uncorroborated statement of the complaining witness was not sufficient to prove the respondent guilty of aggravated battery beyond a reasonable doubt;
(3) Respondent had acted in self-defense and was not, therefore, guilty of aggravated assault; and
(4) Respondent had been pled guilty by his defense counsel at the hearing and such plea was not accompanied, on the record, by the necessary admonishments.

The facts, as they were presented at the hearing on November 21, 1972, were as follows:

Officer Brennan, Chicago Police Department, testified that he had entered the Bryant home with his partner, Officer Duffin, in response to a call from Mrs. Bryant. She had called for police assistance since she had been having problems with her oldest son, Curtis. Brennan stated that a struggle began when he saw a knife in Curtis’ belt and Curtis began to pull it out. Bobby Bryant, Danny Bryant, and Charles Williams were present and attempted to prevent Curtis’ arrest. About a minute after the struggle began, respondent threatened both officers with a broomstick. Officer Duffin became involved in a fight with Danny Bryant, and the two of them fell down the stairs into the basement. At this time, Officer Brennan testified that respondent hit him in the mouth with the broomstick. Officer Brennan fired his gun into the air and respondent left the house.

Officer Duffin testified next and presented basically the same story as to the events that occurred. He saw respondent threaten him and his partner with' the broomstick but he did not see Officer Brennan struck as he was in the basement struggling with Danny Bryant at the time.

Respondent testified that he was struck first by Officer Duffin in the chest or stomach. He asked the officer why he had hit him and when he received no reply, he picked up the broom and threatened the officer. His mother told him not to hit Officer Duffin and to go outside, which he did. He denied ever striking Officer Brennan. Mrs. Bryant testified next, generally supporting respondent’s testimony.

The petition asking that Bobby Bryant be adjudicated a delinquent charges him as follows regarding the aggravated battery:

“In that Bobby A. Bryant has on 25 August 1972 at Cook County, Illinois, committed the offense of Aggravated Battery in that he knowing Robert Brennan to be a Chicago Policeman Peace Officer did intentionally, without legal justification caused bodily harm by striking Officer Brennan in the mouth with a broom handle knocking out three teeth of Officer Brennan without legal justification, in violation of Chapter 38, Section 12—4(b)(6) Illinois Revised Statutes.”

Respondent submits that this charge fails to include an essential element of the offense of aggravated battery in that it is not stated that the officer was “engaged in the execution of any of his official duties * * (Ill. Rev. Stat. 1971, ch. 38, par. 12—4(b)(6).) In support of this position, respondent submits the case of People v. Bailey, 10 Ill.App.3d 191, 293 N.E.2d 186. In Bailey a conviction for aggravated battery brought under an indictment similar to the aggravated battery charge in the instant case was reversed due to the insufficiency of the indictment. The court there stated:

“On appeal, defendant’s sole contention is that the indictment is void. In pertinent part the indictment charged:
* * that Johnny Bailey * * * committed the offense of AGGRAVATED BATTERY in violation of Paragraph 12—4, Chapter 38, Illinois Revised Statutes, 1969, in that he, the defendant, knowing one Paul Nusbaum to then and there be a police officer of the City of Dixon, Illinois, did intentionally and knowingly without legal justification, cause bodily harm to the said Paul Nusbaum by kicking him * * *.’
Although no subsection of Section 12—4 is set forth in the indictment, we presume from the verbiage used that defendant was charged under Section 12—4(b) (6), which provides that a person is guilty of aggravated battery who:
‘* * * in committing a battery * * * knows the individual harmed to be a peace officer * * * engaged in the execution of any of his official duties * * *.’
According to this statute, a simple battery inflicted upon a police officer constitutes an aggravated battery only if the officer is ‘engaged in the execution of any of his official duties.’ See People v. Spears, 106 Ill.App.2d 430, 435-436 (1969).
The instant indictment does not set forth an essential element of the offense in that there is no allegation that the police officer was engaged in the execution of his official duties. This element cannot be inferred, as the State alleges, from the wording “knowing one Paul Nusbaum, to then and there be a police officer.’ ” (10 Ill.App.3d 192.)

If we were dealing with an adult criminal proceeding, the above case would quite clearly be dispositive of this issue. The State does not dispute this, but rather argues that since the instant case involved a juvenile proceeding, that the petition in regards to the aggravated battery was sufficient.

The Juvenile Court Act provides that a minor may be adjudicated a delinquent for the violation or attempted violation of any federal or state law or municipal ordinance. (Ill. Rev. Stat. 1971, ch. 37, par. 702—2.) The State, based on this provision, argues that a delinquency petition is sufficient if it charges a minor with, any act which, if proven, would allow the court to adjudicate the minor a delinquent. In the instant case, it is argued that the petition is sufficient to properly charge respondent with “lesser included offense of battery.” The State further submits that these petitions are “quasi-criminal” in nature and should not be “construed with the same narrow scope as applied to the sufficiency of a criminal information, complaint, or indictment.” We disagree.

This question is controlled by the opinion of the United States Supreme Court, In re Gault, 387 U.S. 1, 18 L.Ed.2d 527, 87 S.Ct. 1428. Mr. Justice Portas, delivering the opinion of the court in that case, discussed the type of notice that due process requires be given in a juvenile petition:

“* * * Notice, to comply with due process requirements, must be given sufficiently in advance of scheduled court proceedings so that reasonable opportunity to prepare will be afforded, and it must ‘set forth the alleged misconduct with particularity.’ * * Notice at that time is not timely; and even if there were a conceivable purpose served by the deferral proposed by the court below, it would have to yield to the requirements that the child and his parents or guardian be notified, in writing, of the specific charge or factual allegations to be considered at the hearing, and that such written notice be given at the hearing, and that such written notice be given at the earliest practicable time, and in any event sufficiently in advance- of the hearing to permit preparation. Due process of law requires notice of the sort we have described—that is, notice which would be deemed constitutionally adequate in a civil or criminal proceeding. It does not allow a hearing to be held in which a youth’s freedom and his parents’ right to his custody are at stake without giving them timely notice, in advance of the hearing, of the specific issues that they must meet.” (387 U.S. 33—34.) (Emphasis added.)

The Illinois Supreme Court, in the case In re Urbasek, 38 Ill.2d 535, 232 N.E.2d 716, adopted the reasoning of the Gault decision. Based on Gault the court held, inter alia, that due process in a juvenile court delinquency proceeding required “adequate advance notice of the charges, the right to counsel, the privilege against self-incrimination and the right to confrontation and cross-examination of witnesses.” (38 Ill.2d 540.) The State’s argument that notice and other aspects of a juvenile proceeding need not be construed in the same “narrow” manner as an adult criminal proceeding cannot stand in light of the decision in Gault. (Though cited and thoroughly discussed by respondent in Iris brief as the principal support for his argument, the Gault decision is not distinguished or discussed by the State in its answering brief.) The “quasi-criminal” concept and the related justification for procedural shortcomings, that the proceedings were “for the protection of the child”, were rejected by the court in Gaidt. As was stated in Urbasek:

“We note that this interpretation of the Gault decision is in direct conflict with tire ruling of the District of Columbia Court of Appeals in In re Wylie, (D.C. App. Ct.) 231 A.2d 81, which refused to depart from its earlier decision in In re Bigesby, 202 A.2d 785, where it held that fire injection of the criminal law concept of guilty beyond a reasonable doubt into ‘civil’ delinquency proceedings would be 11015 unnecessary and improper.’ (202 A.2d at 786.) We believe, however, that the reasoning of that court does not comport with the recurrent theme of the majority in Gault which equated many aspects of a delinquency adjudication with a criminal conviction.” (38 Ill.2d 540.)

Due process of law requires that a juvenile, in the same manner as an adult, be notified of the charges against him. The charges must “set forth with particularity the misconduct upon whmh the delinquency petition was based”, so that the juvenile will be able to prepare a proper defense and conduct “such investigation [of the charges] as may be necessary.” (In re Carson, 10 Ill.App.3d 387, 389, 294 N.E.2d 75.) In the instant case, the part of the petition relating to the alleged aggravated battery is clearly inadequate in this regard and the finding that respondent committed the offense is hereby reversed. It is not necessary, therefore, for us to consider respondent’s other contention, that the State failed to prove the offense of aggravated battery beyond a reasonable doubt.

Respondent also contends that he was not proven guilty of the aggravated assault upon Officer Duffin since he was acting in self-defense. Respondent admitted raising the broomstick and threatening Officer Duffin, but claims that he only did so after Officer Duffin struck him first. However, respondent further testified as follows:

“Q. You stated that Officer Duffin hit you in the stomach; is that right?
A. (Respondent) Up in the chest.
Q. Just before that happened, what had you been doing?
A. You know I was seeing—
Q. Speak to the Judge, please.
A. I was seeing what the other officer was doing to Curtis down there. Then I guess I was trying to hit him. So, he turned around and started hitting me in my chest, and I asked him why he had hit me.
Q. He was on the outside. You stated you picked up a broomstick and you were going to hit Officer Duffin; is that correct?
A. Yes.
Q. Was he in uniform?
A. Yes.
Q. You knew he was a policeman?
A. Yes.
Q. Did Officer Duffin do anything when he saw you coming at him udth a broomstick, if you can recall? Did he say anything or do anything?
A. No, because I was really paying attention to my mother, you know.” (Emphasis added.)

From this testimony it appears just as likely that respondent, if he was indeed shuck by Officer Duffin, was struck only after he threatened the policeman with the broom. Respondent’s testimony as to the incident is conflicting. At best then, there is a conflict in the two versions of the incident and as such this would have been a question of the credibility to be attached to the testimony of each witness. “Issues of credibility are to be resolved by the trier of fact and the court’s evaluation of the testimony will not be disturbed merely due to the existence of possibly conflicting evidence.” (People v. James, 4 Ill.App.3d 1042, 1050, 282 N.E.2d 760, citing People v. Hanna, 42 Ill.2d 323, 328-329, 247 N.E.2d 610, and People v. Peak, 29 Ill.2d 343, 349, 194 N.E.2d 322.) We find no merit in respondent’s contention that the aggravated assault was not proven beyond a reasonable doubt.

Respondent’s final contention is that defense counsel, at the close of the hearing, entered a “guilty plea” on behalf of respondent to the charge of aggravated assault. Since the record does not contain any of the admonishments required by Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) respondent submits that the “guilty plea” must be reversed. We are of the opinion that no such “guilty plea” was ever entered. Respondent alludes to the following statement of defense counsel in his closing argument at the hearing:

“In the first place, I will ask leave to withdraw our denial with respect to the aggravated assault charge and we are going to make an admission on the aggravated assault charge, because the boy’s testimony stands on its face.”

Respondent submits that this statement is, in effect, a guilty plea entered by counsel as to the charge and as a result, this foreclosed any consideration by the court of the self-defense testimony that had been presented. A reading of the record shows that this quote was taken out of context. Defense counsel’s statement above ended as follows:

“* * * He says be raised a stick against Officer Duffin and so be it. I let the boy’s testimony stand for the Court’s intrinsic value, which I think is quite high.” (Emphasis added.)

Defense counsel appears to simply have been commenting on respondent’s admission that he had threatened Officer Duffin with the broom, but he does not ask the court to ignore respondent’s testimony as to his motive in doing so. On the contrary, the above statement asks the court to pay close attention to the testimony regarding self-defense when considering the fact that respondent admitted threatening Officer Duffin. There is no indication in the record that this was meant as a “guilty plea” or that the trial court took it to be such. We are of the opinion that the evidence was fairly and completely considered at the close of the hearing and respondent was found guilty of the offense, rather than having his "plea” accepted by the court.

The finding of the court that respondent committed the offense of aggravated battery upon Officer Brennan is reversed. The finding that he had committed an aggravated assault upon Office Duffin is affirmed, as in the finding of delinquency.

Affirmed in part; reversed in part.

DIERINGER and JOHNSON, JJ., concur.


source: Caselaw Access Project

author: Mr. JUSTICE DIERINGER

license: Public Domain

text:
    Austin Liquor Mart, Inc., Plaintiff-Appellee, v. The Department of Revenue, Defendant-Appellant.
    (No. 58789;
    First District (4th Division)
    March 27, 1974.

      William J. Scott, Attorney General, of Chicago (Bonny Sutker Barezky, Assistant Attorney General, of counsel), for appellants.
    William J. Harte, Ltd., of Chicago, for appellee.
   Mr. JUSTICE DIERINGER

delivered tire opinion of the court:

The defendant, Department of Revenue of the State of Illinois, brought this appeal from a decree of the Circuit Court of Cook County, heard on remand from the Supreme Court of Illinois (Austin Liquor Mart, Inc. v. Department of Revenue (1972), 51 Ill.2d 1), quashing subpoenas and enjoining the Department of Revenue from examining certain books and records. Upon remand the court held that he first was required to determine whether the taxpayer was being harassed:

“THE COURT: In the event that I find they are being harassed, you are not entitled to subpoena.
MR. BROMBERG (Assistant Attorney General): That is correct.”

Accordingly, the court ordered evidence presented on that issue.

The issues for review are whether the supreme court, in remanding the cause for further proceedings, intended the circuit court to determine whether there was evidence of abuse of the court’s process, and whether there is evidence to support the determination by the trial court that there was an abuse of the court’s process resulting from the harassment of the plaintiff.

At the end of July, 1969, the plaintiff submitted its books and records to the Department for the 3-year period, August 1, 1966, to July 31, 1969, seeking a release from liability under the Retailers’ Occupation Tax Act in order to sell one of a chain of retail liquor stores which it owned and operated in Cook County.

The Department kept the books and records until August 19, 1969, when it issued a notice of tax liability in the amount of $15,194.28, which the plaintiff paid on the following day.

The Supreme Court of Illinois reviewed that part of this case wherein the trial court had enjoined the Department of Revenue of the State of Illinois from examining the plaintiff taxpayer’s books and records a second time, after the plaintiff had paid the assessment, as levied by the Department, in full. The case at that point did not contain any evidence or testimony regarding harassment or threats to the taxpayer because the trial court had not heard that question. In a four-to-three opinion, the supreme court remanded the cause to the circuit court, citing the case of United States v. Powell, 379 U.S. 48, 58, 13 L.Ed.2d 112, 120, 85 S.Ct. 248, 255, which case discusses harassment of a taxpayer and the abuse of judicial process.

In the instant case, the circuit court, after remand, heard testimony as to the arrest and treatment of the plaintiff corporation and its officers by the Revenue Department agents and made the following findings: (1) that the issuance of the first and second subpoenas duces tecum was an abuse of judicial process, violated the law of the State of Illinois, and did harass and discriminate against the plaintiff; (2) that the Department was not authorized by law to arrest any taxpayer without issuance of an arrest warrant upon proper affidavit by a court of competent jurisdiction; that the Department did so make an illegal arrest in this case and did undertake to assume power not delegated to it by the legislature; (3) that the legislature has delegated to the Department the right to file a complaint under oath in a court of competent jurisdiction and ask that a warrant for the arrest of a disobedient taxpayer be issued; that the Department did not follow this procedure and singled out the plaintiff herein and with 12 to 14 agents of the Department went to the taxpayer’s place of business with an unverified complaint; that the Department did not properly and legally file an affidavit and complaint with the clerk of the Circuit Court of Cook County and did not appear with said complaint and affidavit before a judge of the Circuit Court of Cook County and ask that a warrant issue, and that the failure to conform to this basic rule is an abuse of judicial process; and (4) that the arrest, taking into custody, jailing and fingerprinting of the officers of the taxpayer corporation was an abuse of judicial process in that the Department has singled out, discriminated and harassed this plaintiff. Wherefore, the court ordered, adjudged and decreed:

“The plaintiff’s motion to quash the subpoena duces tecum issued by the Department of Revenue on November 24, 1969 and a second subpoena duces tecum issued by the Department on December 2, 1969, directed to the plaintiff to produce all its books and records for the period January 1, 1967 to November 24, 1969, is sustained and the subpoenas duces tecum are hereby quashed, dismissed and held for naught and that the defendant Department of Revenue, the Director, and their agents, representatives and or successors are permanently enjoined and restrained from conducting any investigations or holding any hearings pertaining to the Retailers’ Occupation Tax Act in any manner whatsoever including sales records and reports, journals, ledgers, invoices, bills of sale, Federal Income Tax * * * and all other business operations of plaintiff pertaining to said operation for the period August, 1966 to July 31, 1969 and the Department’s motion filed December 1, 1972 to produce plaintiff’s books and records for said period is denied in its entirety.”

The record shows that on November 24, 1969, the Department issued a subpoena duces tecum directing the plaintiff to produce all of its books and records for the period January 1, 1967, to November 24, 1969. The plaintiff's attorney appeared and filed a motion to quash, alleging no prior notice, harassment and an improper subpoena. The motion was taken under advisement by the hearing officer, but prior to a decision, another subpoena duces tecum was issued seeking the production of the books and records for the same period. The plaintiff’s attorney again made a motion to quash and it was again taken under advisement by the hearing officer.

Both motions to quash were denied on December 8, in a letter to the plaintiff’s attorney, who then appeared before the hearing officer complaining about the implied threat of arrest contained in the letter by reference to section 452 of the Retailers’ Occupation Tax Act (Ill. Rev. Stat. 1969, ch. 120, § 452), which is penal in character, and also complaining that the Department considered the subpoenas as first and second demands for the books and records.

In reply to his argument the hearing officer stated, “The last thing this Department is interested in is arresting these clients of yours.”

Two days later, without any further communication with the taxpayer, its lawyer, or the officers of the corporation, Anthony and Benedict Fillichio were arrested by agents of the Department. Six agents led by John Johnson appeared at the store where the arrest was made and other agents appeared at various of the other stores in the chain. Only two witnesses testified in the instant trial, both agents of the defendant Department of Revenue, called by the plaintiff.

Mr. Johnson testified that for 14 years prior to his employment with the Department, he was warden of the Cook County Jail. His formal educational background included 2 years at Northwestern University in police administration and criminology. He has had some 32 years’ experience working in the area of criminology, dealing with arrests and people who commit crimes. On December 12, 1969, he was employed by the Department as an investigator. On that date there were approximately 14 or 15 investigators in the Department’s Chicago office. He further testified that on December 12, he arose at 5:30 A.M. for an early morning meeting at Dempster and Waukegan Avenues with three other investigators (Maloney, Kelleher and Beason) so as to get together to proceed to the taxpayer’s premises in Glenview. They had received their orders on December 11 from John Gallagher in the Department’s Chicago office. Other officers of the Department were assigned to the investigation of the taxpayer that day; Johnson estimated about 10 or 12, but he did not know how or where they were assigned.

They proceeded in two cars to the taxpayer’s Glenview store and arrived about 7:30 A.M. The three other investigators waited in the car while Johnson entered the store next door to the taxpayer’s offices and spoke to a clerk. He identified himself and asked if either the president or vice president of the taxpayer was there. Neither was in the store. He left the store and with another agent ten minutes later went next door to the taxpayer’s offices where he had identified himself to Benedict Fillichio, taxpayer’s vice president. Johnson testified he showed his credentials, stated he was there as an agent of the Department, and that if Benedict failed to produce the books and records, he was authorized to make an arrest. Benedict stated he had no such authority and would have to get Mr. Anthony Fillichio. Benedict then asked to make a telephone call.

Johnson further testified that he then had a telephone conversation with Anthony Fillichio, taxpayer’s president, who wanted to know what it was all about. Johnson stated he was there to see the books and records. (Johnson later admitted that at the criminal proceeding he told Anthony Fillichio on the telephone that they were there to make- an arrest if the books were not shown.) Anthony then stated he would come to the premises and arrived 10 to 15 minutes later, or about 11 A.M.

When he arrived, Johnson stated they were there to see the books and records. Anthony said that the books and records Johnson was after were not on the premises. Johnson then told him he would have to place both Anthony and Benedict under arrest, which he did. Johnson later stated that before making the arrests he called one Edward Meeci at the Department’s office, who confirmed his prior directions to make the arrests. Anthony asked to make a telephone call, which he did, and they then left the premises.

During these proceedings, another car from the Department had arrived, making three cars in all, with six agents. The Fillichios were then taken to the Department’s Chicago office and later to 11th and State Streets for booking. Johnson identified plaintiffs exhibits 3 and 5, the arrest records of both men; he was listed as the arresting officer.

Upon further interrogation Johnson admitted that the day before he went on the premises, the complaints had been given to him by John Gallagher. They had a meeting the afternoon before in which instructions were given to the teams going out. They were to go in and ask for the books and records, and if the taxpayer agreed they were to call the office. If the taxpayer refused they were to place the officers under arrest, advise them of their rights, and bring them into the office. Although the complaints read that John Gallagher had appeared before the circuit court, Johnson didn’t know if he appeared before a judge. Johnson did not know who prepared the so-called misdemeanor complaints.

Johnson further stated that to his knowledge it was not customary to get the complaints from Gallagher and make arrests before they are presented to a judge. In this one case he was given the papers and told to go out there. In other cases, if there is a question of refusal and there is an arrest to be made, they take the documents before a judge, inform him of the refusal, the judge orders them produced, and if they are not, the taxpayer is in contempt of court. In counties other than Cook, they go through the State’s Attorney and go before a judge, who signs them. Johnson admitted he knew how to do it the right way.

In response to the court’s direct question as to the reason it was done differently in this case, Johnson stated he could not answer that because he did not know. He did not know there were proceedings to quash the subpoenas which had previously been served.

Johnson admitted he was not an auditor and was not qualified to make an audit of the taxpayer. At the trial, Johnson denied he was on the premises to make an audit of the taxpayer’s books and records. He was there to determine whether the books were on the premises to “check them out,” to determine whether there were irregularities in the entries in the books. This was not to be an audit. Johnson was impeached from a prior inconsistent statement under oath where he stated his purpose in demanding the books that morning was “to produce them in the office of the Revenue Department for the purposes of audit.”

Mr. John Gallagher testified that he was a supervisor in the Investigation Division of the Department of Revenue. He stated that on December 11, 1969, he and six other investigators were told by Roswell Spencer, the chief investigator, they were going to request the books and records of the taxpayer on the following morning and if they were not produced, they would arrest the officers of the corporation.

Gallagher admitted he was instructed to and filled out the complaints on December 11 in the office. He swore to the facts stated in the complaints, but did not recall if the date December 12 was on the complaints at the time, although he knew they were going to the taxpayer’s premises the next day. He did not appear before Mr. Danaher, Clerk of the Circuit Court, and swear to the document. He first appeared before a judge on January 23, 1970. He was familiar with the statutory procedure of the issuance of a subpoena, and if it was disobeyed, he would appear before a Circuit Court judge for an order of production and then a contempt holding in die event they were not produced. They did not follow that procedure in this case because they were instructed to do it this way. He did not know he was violating the law and no one told him he was.

Gallagher further testified that usually an auditor would accompany him on a visit to a taxpayer’s premises and he would conduct an audit of the books and records. Gallagher had never had occasion to have a retailer refuse the books. None of the men at the taxpayer’s premises was an auditor. On that morning he was assigned to the taxpayer’s store in Northbrook. Somebody was also assigned to the Skokie store and the Dempster Street store. Two men were assigned to each store; 10 or 12 agents in all were assigned. At the Northbrook store he asked for Anthony or Benedict Fillichio but not the books and records. When he was told neither man was there, he left the store and telephoned the office. He was told that Mr. Johnson was in touch with both the Fillichios.

Gallagher then went to the Glenview store, arriving at about 10 A.M. After Johnson effected the arrest of Anthony and Benedict, they all proceeded to the Department’s office in downtown Chicago. The arrest slips were filled out and they then went to the police station at 11th and State Streets. The two men were delivered to the lockup keeper while their attorney was making bond. He did not know how long the men were there before they were released.

On examination by his counsel, Gallagher stated that Spencer had an auditor available to send out to the premises to audit the books and records in the event they were produced. He further stated the procedure of swearing to the complaints prior to the arrest was for the convenience of the taxpayers who were to be arrested so they can be processed quicker.

The charges against Anthony and Benedict Fillichio were subsequently summarily dismissed by Judge Arthur Dunne.

The instant case is replete with instances of harassment which reflect on the good faith of the investigation. When the Department wanted to re-audit the plaintiff corporation, they did not give written notice as required by statute, but issued two subpoenas. Next, the letter written to plaintiffs attorney denying the motions to quash implied that arrests would be made if the books and records were not made available and further stated that the subpoenas would be treated as first and second demands for the books and records.

As a result, the plaintiffs attorney appeared before the hearing officer in the Department’s offices to protest the procedures being employed, and his outrage, while self-serving in character, nonetheless summarizes the methods used by the Department, when he said:

“Where the statute calls for a notice in writing, your notice is a subpoena, or an arrest warrant, and you are impliedly threatening you are going to arrest and incarcerate the citizens of the Staté of Illinois. Your conduct makes it very clear you are not interested in tax collection at all, but only in persecuting and prosecuting and threatening citizens and taxpayers of Illinois by unauthorized prosecution purely for interests of personal aggrandizement and publicity.
I wish to apprise you that the Courts have held that you are an administrative agency and are not a prosecutor and the taxpayer not an accused, but these are intended to be impartial hearings designed to elicit the facts.
Your conduct and threatened conduct compels me to address your summary preemptory treatment of this taxpayer to the Courts of the state, and the Department fails to recognize—or chooses to ignore the fact—that its denial of the taxpayer’s motion to quash the subpoenas is a final appealable order from which the taxpayer has thirty-five days to file his administrative action, and despite the fact that this matter is still pending and not a legally resolved issue, the Department of Revenue is prosecuting and threatening to proceed criminally.
MR. FIORITE: The only thing I would add is, of course, the Department is only interested in the collection of tax money. There is no interest whatsoever in making an arrest. The last thing this Department is interested in is arresting these clients of yours.”

Two days later the plaintiff’s corporate officers were arrested by a task-force type operation of a dozen or more agents, none of whom was an auditor, even though it was standard procedure to have one present.

On the same day as the arrests, and without any knowledge they had taken place, the plaintiff’s attorney filed a petition in the Circuit Court of Cook County charging that the Department was threatening criminal action and denying statutory remedies. It prayed that the court enjoin the Department from re-examining the books which had been audited and from proceeding in the investigation in a manner “other than as it does all other taxpayers.”

The defendant filed its answer and counterclaim on January 14, 1970, alleging on information and belief that the plaintiff had not delivered all of its books and records for audit and had failed to report the total amount of gross receipts for the period in question. The defendant requested the court to compel the production of plaintiff*s books and records for reassessment and to enjoin the plaintiff from operating its business because of its failure to file annual information returns.

The.only evidence adduced at the March 24, 1970, trial was a copy of the notice of tax liability and proof of payment. The Department elected to stand on its counterclaim and not to present any proof. The court held that the defendant was estopped from further investigation of plaintiff’s books and records for the period in question when it issued the assessment of tax liability and accepted payment. The court also found the defendant’s .counterclaim to be insufficient, holding that a request for injunctive relief cannot be supported by allegations on information and belief.

The Supreme Court of Illinois reversed the judgment and remanded the cause back to the trial court which then held that it was required by the supreme court opinion to determine whether the plaintiff was being harassed, and accordingly ordered evidence presented on that issue.

In urging this court to hold that the trial court misinterpreted the mandate of the supreme court, defendant basically advances two arguments: (1) that there was no basis in the opinion of the supreme court for an inquiry into whether there was harassment, coercion or abuse of the court’s process; (2) that in any event, these issues were decided by the supreme court. Plaintiff argues that neither argument is supported by a careful reading of the opinion of the supreme court. Furthermore, Mr. Bromberg, Assistant Attorney General, agreed with the court that if the court found the plaintiff was being harassed, the defendant was not entitled to subpoenas.

As defendant correctly states, the issue posed by the majority opinion was “whether defendant may be estopped from examining plaintiff’s books and records for the period in question because of its previous assessment and acceptance of payment for that period.” The supreme court held that defendant was not estopped on that ground except in “extraordinary circumstances,” such as those present in Hickey v. Illinois Central R.R. Co. (1986), 35 Ill.2d 427. Since plaintiff had not shown such “extraordinary circumstances,” defendant was not estopped by reason of a previous assessment covering the same period. However, even though a previous assessment would be no bar except in “extraordinary circumstances,” the court held (citing United States v. Powell, 379 U.S. 48) that the Department would be barred if the taxpayer could show that the court’s process had been used for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for “any other purpose reflecting on the good faith of the particular investigation.” As the court also stated:

“Our holding that payment by a taxpayer of a prior assessment covering the same period of time is not a bar to subsequent investigation does not, however, leave the taxpayer without protection. Even in areas where the need is as compelling as is the necessity for public revenue the court may inquire as to the reasons underlying the request for examination and issuance of the subpoena.” (51 Ill.2d at 6.)

The court’s decision that defendant was not barred by the prior assessment was conditioned on the premise that the court was free to determine the good faith of the Department, that is, whether “the summons had been issued for an improper purpose, such as to harass the taxpayer or to put pressure on him to settle a collateral dispute, or for any other purpose reflecting on the good faith of the particular investigation.” United States v. Powell, 379 U.S. 48, 58.

Further, the supreme court determined that “the trial court proceeded in a mistaken belief that the burden was upon the State to establish fraud by the taxpayer as a condition precedent to examination of the books for the previously audited period * * (51 Ill.2d at 8.) The trial court proceedings then were conducted upon a mistaken theory which would preclude reassessment absent a showing of fraud by the Department. Such a theory would require no showing of harassment, intimidation or abuse of process. Accordingly, the first trial left open these issues which were later specifically raised in the court’s opinion.

Where a case has been tried on an erroneous or mistaken theory of law, it will be remanded for further proceedings consistent with the directions of the reviewing court. Gannon v. Chicago, M., St.P. and P. Ry. Co. (1961), 22 Ill.2d 305; Cihal v. Carver (1948), 334 Ill.App. 234; Keel v. Illinois Terminal R.R. Co. (1952), 346 Ill.App. 169.

We hold the trial court followed the mandate of the Supreme Court and proceeded properly, putting the burden on the plaintiff to show improper, illegal use of process, harassment and other purposes reflecting on good faith.

The evidence in this record of the Department’s harassment, coercion, intimidation and abuse of the court’s process is not only overwhelming, but it comes from the lips of its own personnel.

In cases such as this where the witnesses have physically appeared and have testified in open court, the trial court’s determination is to be accorded the same weight as the verdict of a jury and will not be set aside on appeal unless it is manifestly against the weight of the evidence (Hood v. Brinson (1961), 30 Ill.App.2d 498), or is palpably or manifestly erroneous. (Prudential Insurance Co. v. Spain (1950), 339 Ill.App. 476.) Or, as stated by tire court in Schulenburg v. Signatrol, Inc. (1967), 37 Ill.2d 352, 356:

“Although a trial court’s holding is always subject to review, this Court will not disturb a trial court’s finding and substitute its own opinion unless the holding of the trial court is manifestly against the weight of the evidence. (Brown v. Zimmerman, 18 Ill.2d 94, 102; Illinois Nat. Bank & Trust Co. of Rockford v. County of Winnebago, 19 Ill.2d 487, 495; Mortell v. Beckman, 16 Ill.2d 209.) Underlying this rule is the recognition that, especially where the testimony is contradictory, the trial judge as the trier of fact is in a position superior to a court of review to observe the conduct of the witnesses while testifying, to determine their credibility, and to weigh the evidence and determine the preponderance thereof. We may not overturn a judgment merely because we might disagree with it or might, had we been the trier of facts, have come to a different conclusion.”

In expressing the manifest weight of the evidence test as applied to a trial court sitting as a finder of fact, the Illinois Supreme Court said in Brown v. Zimmerman (1959), 18 Ill.2d 94, 102:

“[Where] the determination of this case depends largely upon the facts to be found in the record * * * the findings and judgment of the trial court, in chancery and non-jury cases, will not be disturbed by the reviewing court, if there is any evidence in the record to support such findings.”

The evidence in this case shows undisputably that following the taxpayer’s voluntary submission of its books and records, the audit of those books by the Department, and notice of tax liability emanating from that audit, and the payment of such tax liability of the taxpayer, the Department entered upon a course of action to intimidate, coerce, punish and jail the taxpayers officers through illegal procedures and vilification in the public press. The trial judge properly disregarded newspaper articles as not being evidence and stated the court would not be intimidated by newspaper articles. Mr. Bromberg, the Assistant Attorney General, characterized it as “horrible” and promised the court to ascertain who was responsible for the articles.

Totally apart from the instant proceeding on remand from the supreme court, the record made in the first trial is sufficient to support the finding of the Department’s lack of good faith. The day the “decision” of the hearing officer denying the motion to quash was received by the taxpayer, the taxpayer’s attorney appeared before the hearing officer complaining of the implied threat of arrest and incarceration in the letter articulating the decision. He complained of the procedures employed by the Department in that they demonstrated its intent to persecute, prosecute and ultimately arrest the taxpayer’s officers. This was December 10. Two days later, the taxpayer’s officers were arrested and jailed.

As to the first trial, three judges of the supreme court found that on the first record alone the trial court did “inquire as to the reasons underlying the request for examination.” The instant hearing strengthened the record to demonstrate the Department’s abuse of power. Some 10 to 12 agents planned the arrest procedures on December 11. On that day Gallagher swore to facts which were to occur the next day.

Other significant facts indicate the Department had little interest in the books and records, such as: (1) The usual procedure was to send an auditor with the agents. Of the 10 to 12 men on the raid, not one was an auditor or qualified as an auditor. (2) When Gallagher made his raid on the Northbrook store, he did not even ask for the books and records. He only wanted Anthony and/or Benedict Fillichio. (3) When Johnson asked for the books and records at the Glenview premises and was told they were not there, he made the arrests anyway. (4) Johnson was impeached by a prior sworn inconsistent statement when he said he was there to make an on-site inspection of the books and records. (5) Johnson said the procedures employed against the taxpayer had never to his knowledge been utilized against any other taxpayer. (6) Gallagher’s attempt to explain the utilization of perjured complaints as a “convenience” to the arrestees. (7) And finally the illegal procedures themselves. This department relegated to itself the power to arrest citizens and taxpayers without any statutory authority, without any executive authority, and without any judicial sanction whatsoever. It misappropriated court process and utilized it at its own whim.

Process is defined as “any means used by the court to acquire or to exercise its jurisdiction over a person or over specific property.” (Holiday Magic, Inc. v. Scott (1972), 4 Ill.App.3d 962.) Such utilization of the court’s process to harass a person has always been condemned. (Nemanich v. Long Grove Country Club Estates (1970), 119 Ill.App.2d 169.) The requirement of the actual arrest of a person is satisfied here. (See John Allan Co. v. Brandow (1965), 59 Ill.App.2d 328.) The utilization of process to “intimidate, oppress or punish a person against whom it is sued out * * * is malicious use of process.’” Lerner v. Borack (1914), 189 Ill.App. 603, 604.

In its opinion, the majority in the supreme court commented on the attempt by the Department to file an amendment to its answer and counterclaim before the first decree was entered. The basis for the amendment was aHegedly the possession of the taxpayer’s Federal income returns. The court noted that the trial court denied the requested amendments as coming too late. The majority commented that this ruling is not prejudicial error unless there has been a manifest abuse of the trial court’s broad discretion, and since the preferred amendment was not included in the record on appeal, they were unable to determine whether “a manifest abuse of discretion was here present.” The minority felt the refusal of the Department to present any evidence after the repeated requests to do so by the trial court justified the court’s decision in favor of the taxpayer on the issues, stating the amount of tax asserted by the Department was prima facie correct and, once established, “the burden shifts to the Department to prove its case by competent evidence.”

In the instant hearing before the trial court on remand, the Department attempted to introduce these same allegedly inconsistent Federal income tax returns. However, upon inquiry by the court, the Department admitted it had this evidence at the first trial before the proofs were closed and notwithstanding the repeated requests by the court to introduce evidence, it refused or elected not to do so. Accordingly, the trial court refused to admit the evidence. The offers of proof made by the Department in the hearing on remand were totally improper as to form. Instead of asking the witnesses to give testimony, the Department’s attorney summarized their testimony in a narrative unsworn statement. Consequently the offers of proof cannot be considered on appeal. Schmitt v. Chicago Transit Authority (1962), 34 Ill.App.2d 67; Hession v. Liberty Asphalt Products, Inc. (1968), 93 Ill.App.2d 65.

The fact the purported evidence was in the possession of the Department at the time proofs were closed, and its refusal even to offer the evidence after repeated requests to do so by the trial court at the first trial, demonstrate the trial court did not abuse its discretion in refusing to admit tire evidence at the subsequent hearing, to permit any amendment of the pleadings based on the evidence, or to open proofs to admit evidence which could have been offered prior to the closing of proofs.

We think the plaintiff taxpayer has established by an overwhelming weight of the evidence that this case comes within the Powell case, supra, as to the harassment of the taxpayer, the abuse of process, and other purposes reflecting on the good faith of the particular investigation. Furthermore, we also believe this case comes within the “extraordinary circumstances” set forth in the Hickey case, supra.

For the aforesaid reasons, the decree of the Circuit Court is affirmed.

Affirmed.

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


author: Mr. JUSTICE JOHNSON

text:
    Ann Georges et al., Plaintiffs-Appellees, v. Vincent A. Mallare et al., Defendants-Appellants.
    (No. 58886;
    First District (4th Division)
    March 27, 1974.
    Frank L. Mallare, of Chicago, for appellants.
   Mr. JUSTICE JOHNSON

deHvered the opinion of the court:

Plaintiffs brought an action in forcible entry and detainer to recover rent and possession of the premises. Defendants, who filed an appearance, were not present at the hearing at which a default judgment was entered. Within 30 days the defendants filed a motion to vacate the judgment. While the motion was pending, but before there was a hearing, the sheriff removed defendants from the premises. The trial court thereafter denied the motion.

The issue on appeal is whether the trial court should have granted the motion to vacate the judgment and set the case for trial, when the motion was made within 30 days after the default was entered.

The appellees have not filed any briefs in accordance with Supreme Court Rule 341 (Ill. Rev. Stat. 1971, ch. 110A, par. 341). This court may determine the case on its merits or may reverse because of the failure of the appellees to comply with the Supreme Court Rule in its sound discretion. (Shinn v. County Board of School Trustees (1970), 130 Ill.App. 2d 908, 266 N.E.2d 123; People v. Spinelli (1967), 83 Ill.App.2d 391, 227 N.E.2d 779; Timmerman v. Wilson (1966), 74 Ill.App.2d 224, 219 N.E. 2d 767.) Inasmuch as the appellees have abandoned their case, we see no reason to go into the merits. We have therefore decided to reverse pro forma. People ex rel. Pullman Bank & Trust Co. v. Fitzgerald (1973), 14 Ill.App.3d 247, 302 N.E.2d 429.

The judgment of the circuit court of Cook County is reversed and the cause remanded for a new trial.

Reversed and remanded.

ADESKO, P. J., and DIERINGER, J., concur.


author: Mr. JUSTICE LORENZ

text:
    Alex Wayne, a Minor, by I. W. Wayne, His Father and Next Friend, Plaintiff-Appellant, v. Percival Thompson, Defendant-Appellee.
    (No. 56129;
    First District (5th Division)
    March 29, 1974.

      Arthur Aaron Ellis and Morris W. Ellis, both of Chicago (Ellis & Ellis, of counsel), for appellant.
    John W. Purney and Merrill C. Hoyt, both of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff appeals from the denial of his petition seeking to vacate a default judgment. Since plaintiff’s petition was filed after 30 days from the date of the default judgment, it will be reviewed as seeking relief pursuant to section 72 of the Civil Practice Act (Ill. Rev. Stat. 1971, ch. 110, par. 72).

On June 26, 1965, defendant’s automobile and plaintiff’s motorcycle collided in the vicinity of 1422 West Fargo Avenue, Chicago, Illinois. On January 6, 1966, defendant filed suit against plaintiff in the municipal division of the circuit court for the property damage to his automobile sustained in the collision. The record does not indicate whether plaintiff filed his appearance or answer. On September 28, 1966, plaintiff filed the instant suit for personal injuries received in the aforesaid accident. Defendant filed an answer and a jury demand on November 10, 1966. No motion was ever made to consolidate these actions. On March 10, 1967, defendant obtained a default judgment on his property damage action. The record discloses that the default judgment was vacated on March 23, 1967, and plaintiff’s father, as guardian ad litem, was given 20 days to appear and defend. No answer having been filed defendant again obtained a default judgment on his property damage action on May 22, 1967, in the sum of $351.37. On December 11, 1968, defendant filed a motion in the circuit court seeking to dismiss plaintiff’s personal injury suit on the basis that the default judgment obtained in the property damage action resolved the issue of liability in his favor and that therefore the principle of res judicata was applicable to the instant action. On January 17, 1969, an order was entered dismissing plaintiff’s personal injury action with prejudice. On January 14, 1971, plaintiff filed a [section 72] petition seeking to vacate the order of dismissal and he now appeals from the order denying that petition.

Plaintiff contends that the default judgment entered against him in the property damage suit is not determinative of the issues present in his personal injury action. We need not reach this question however, as we are of the opinion that plaintiff’s section 72 petition does not show the exercise of due diligence in setting aside the January 17, 1969, judgment and, therefore, was properly denied by the trial judge.

It is well established that a section 72 petition requires the petitioner to show not only a meritorious defense but also the exercise of due diligence. (Mutual National Bank of Chicago v. Kedzierski, 92 Ill. App.2d 456, 236 N.E.2d 336.) The petition is not intended to relieve a party from the consequences of his own mistake, neglect or negligence (Gordon v. Excel Wholesale Grocery Co., 1 Ill.App.3d 487, 274 N.E.2d 895) and it must be supported by affidavit or other appropriate showing as to matters not of record. Ill. Rev. Stat. 1971, ch. 110, par. 72(2).

It is argued before this court that plaintiff has at all times exercised due diligence in pursuing this cause and that the delay in presenting this petition was occasioned by his failure to receive either notice of the hearing to be held on defendants motion to dismiss the instant suit or the granting of that motion. The record, however, negates plaintiff’s claim. Affidavits filed by plaintiff indicate that on December 11, 1968, notice of defendant’s motion to dismiss the personal injury suit was sent to plaintiff, that an attorney representing plaintiff did appear at the hearing on December 18, 1968, and that the hearing on the motion was continued to January 17, 1969. Plaintiff has filed no counter-affidavits or verified allegations denying: (1) that he received notice of the December 18, 1968, hearing; (2) that he was not in fact represented there by counsel; or (3) that he did not know that the hearing on that motion was continued to January 17, 1969. Furthermore, defendant has filed an additional affidavit indicating that notice of the motion to dismiss the personal injury suit was again sent to plaintiff’s attorney on January 17, 1969; that counsel for defendant was the only one who appeared on that date to argue the motion and that the court thereupon entered an order dismissing plaintiff’s suit. Defendant’s affidavit that notice was mailed cannot be frustrated now by plaintiff’s allegation that he did not receive that notice. (Chavez v. Elgin, J. & E. Ry. Co., 32 Ill.App.2d 68, 176 N.E.2d 664.) Finally, we note nearly 2 years have elapsed from the dismissal of plaintiff’s suit to the filing of this petition. Such delay indicates a failure to keep current of the circuit court calendar which would have reflected the status of this case. It is the duty of litigants to follow their cases in the court, and section 72 does not relieve a party from the consequences of his own negligence in this regard. (Thompson v. Carson Pirie Scott & Co., 106 Ill.App.2d 463, 246 N.E.2d 131.) For these reasons, we conclude that plaintiff has failed to show the requisite due diligence necessary to obtain relief under a section 72 petition.

Accordingly, the order of the circuit court denying plaintiff’s petition is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Raymond F. Terrell, Defendant-Appellant.
    (No. 57616;
    First District (5th Division)
    March 29, 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, and Frank DeBoni, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

After a jury trial, defendant was found guilty of the murder of James Lewis in violation of section 9—1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 9—1) and was sentenced to a term of not less than 14 nor more than 18 years. On appeal he contends: (1) that the trial judge erred in failing to require the production of a material witness to defendant’s confession alleged to have been coerced; (2) that the evidence failed to prove him guilty beyond a reasonable doubt; and (3) that the prosecutor’s closing argument was so highly inflammatory and prejudicial as to deny him a fair and impartial trial.

James Lewis, Paul Knox and Lee Davis were playing basketball in the playground adjacent to the Eisenhower School at 137th Street and Crawford Avenue, Robbins, Illinois, on April 18, 1971, when at approximately 8 P.M. they were confronted by a group of youths that had encircled the playground. Lewis was shot in the right thigh causing severe hemorrhaging. Knox was struck in the head by a chain. Lewis was taken to the hospital where he was pronounced dead. Later that night Knox gave the police a statement identifying Jarvis Carter as one member of the group that had surrounded the playground. Davis also gave the police a statement identifying Sherman Brown and Lorenzo Brown as well as Carter. Davis indicated that he believed that it was Lorenzo Brown who had fired the shot that struck Lewis. Davis further stated that immediately before the shots were fired Lorenzo Brown had shouted “Halt or I will shoot.”

The following morning an informant told Robbins Police Sergeant Melvin Jessup that he had heard that defendant had shot Lewis. Jessup at this time was unaware of Davis’ implication of Lorenzo Brown. Robbins Police Sergeants Oscar Murphy, Frederick Pennix and Jessup went to defendant’s house to bring him to the Robbins police station for questioning. As defendant was taken to the police car he was advised of his constitutional rights. He indicated that he knew of the shooting incident and where the gun was hidden. He directed the officers to Stanley Howell’s house where a .38-caliber pistol was recovered from behind a heating duct in the basement. Later that same day defendant signed two written confessions. The first was taken by Jessup and Murphy at the police station and the second at the State’s Attorney’s office by assistant State’s Attorney Lawrence O’Gara in the presence of Sheriff’s police officers Robert Cadieux and Vic Maiorano. No pretrial motions were made to suppress either of the confessions.

At trial, Jarvis Carter testified for the State that on the night in question he, defendant, defendants’ brother Michael, Bruce Hawkins and Stanley Howell went to the school to make a peace treaty between the “Lords” and the “Stones.” Hawkins, Howell and defendant walked across the field toward the basketball court and he and Michael started walking around the school to encircle the basketball court from the other side when he heard someone say “Halt or I shoot.” He saw Paul Knox running at him with what appeared to be a gun. The witness threw a chain he was holding and hit Knox in the face. He heard two shots and then saw defendant running. He did not see anything in defendant’s hand or on his person. The State claimed surprise on the basis of Carter’s four-page statement previously given to the police. After having been examined as a court’s witness, he testified that defendant had a gun in his hand, that he saw him shoot “the dude by the basketball court” but that he didn’t know “the dude’s name” that was shot. The witness further testified that he had given defendant a loaded gun at about 10 o’clock that morning.

Jessup testified for the State that defendant’s first confession taken at the police station was made voluntarily and only after defendant had been admonished of his constitutional rights. O’Gara testified that defendant’s second confession at the State’s Attorney’s office was voluntary and was given after defendant had been advised of his constitutional rights. Cadieux and Maiorano corroborated O’Gara’s testimony. This confession was read to the jury and offered into evidence.

Defendant testified in his own behalf that Sergeant Murphy had said to him that his younger brother would go to jail unless he confessed to shooting James Lewis. Defendant denied that he had been advised of his constitutional rights prior to giving a statement to Jessup. He testified that he signed a waiver of such rights without having read the waiver. He further testified that Murphy directed his answers to Jessup’s questions. He acknowledged having made a statement at the State’s Attorney’s office, but denied its truthfulness. Defendant testified that on the night of the shooting he and his girl friend had been walking to the school adjacent to the playground to go to a dance. When they heard shots being fired, they hid close to the building for about 3 to 4 minutes and then ran for home. On cross-examination, defendant admitted that his girl friend had moved out of state and further that there had been no dance that night.

Defendant’s request to call Officer Murphy as a court witness material to the question of coercion regarding the first confession was denied.

During closing arguments the prosecutor, over objections from defense counsel, characterized defendant in an insulting manner and dwelled on the outrageous nature of the crime and spoke of each jurors duty to the people of Illinois. After deliberations, the jury returned a verdict of guilty.

OPINION

Defendant now contends that the court erred in permitting the second confession to be received into evidence. He argues that the second confession at the State’s Attorney’s office was merely a product of the coercive tactics employed by the Robbins police in extracting his first confession. Although defendant concedes that there has been only his allegation of coercion, he argues that once having made that allegation, it was incumbent on the court to hear testimony from all material witnesses to the earlier confession so that the full truth could be disclosed. He notes that Sergeant Murphy, a witness to the first confession, did not testify.

It is the duty of the trial judge in every case when he has reason to suspect that a confession has been obtained through coercive measures, to refuse to permit any evidence as to the confession until the full truth of the method of its obtainment is disclosed. (See People v. Rogers, 303 Ill. 578, 136 N.E. 470.) Nevertheless, this is not a mechanical formula that requires every witness to the confession to testify but rather a practical one to assist the court in determining whether or not the confession is voluntary. (See People v. Jennings, 11 Ill.2d 610, 144 N.E.2d 612.) Whether an absent witness to a confession could be of substantial value in resolving the question of voluntariness of a confession must be weighed by the trial judge against the credibility of testimony already elicited from other witnesses. “If, in order to satisfy himself of the competency of a confession, he requires all of the material witnesses to be called, he should do so. On the other hand, if he were satisfied to hear less than all of such witnesses, that also should be within his discretionary power, and we should reverse only where we are satisfied that there was a clear abuse of discretion.” People v. Sims, 21 Ill.2d 425, 434, 173 N.E.2d 494, 498 (specially concurring opinion).

Here the only evidence that coercive tactics were employed by the Robbins police force consisted solely of defendant’s testimony at trial. He testified that Murphy said to him that the “only way you can get your brother out [sic] if you make a statement or say you did it.” Murphy then allegedly told Jessup what to write down, and told defendant to sign it. Defendant further testified that he merely reiterated these supplied answers when questioned at the State’s Attorney’s office later that same day. Defendant’s account of the collateral circumstances surrounding his confession is controverted by Jessup’s testimony. Furthermore, defendant offers no explanation as to why he feared that his brother could be implicated in the crime. Also, defendant’s testimony directly conflicts with the testimony of his friend Carter. Under the circumstances we believe the trial judge was in a position to view the demeanor of the witnesses, and was satisfied that the confession was not coerced.

Defendant cites the recent decision of People v. Armstrong, 51 Ill. 2d 471, 282 N.E.2d 712, for the hard and fast rule that all material witnesses to a coerced confession must be called. In that case the following elements were present. First, the voluntariness of the confession was called into question by a motion to suppress; secondly, defendant’s allegation of physical coercion was corroborated by four other defense witnesses; and thirdly, the absence at the hearing of police officers who had witnessed the confession was not explained away by the prosecutor. In the instant case, the allegedly coerced confession was not called into question by a motion to suppress, but rather was raised by defendant’s testimony at trial after the trial judge had the opportunity to evaluate the evidence. Also, as has been previously noted, defendant’s testimony was uncorroborated and was contrary to other State's witnesses. Finally, there was no attempt by the State to secrete Murphy as he was available in the courtroom during much of the proceedings and was on the State’s list of witnesses. In fact, the prosecutor did call Murphy to the witness stand, but he was momentarily absent. He was never recalled because the State felt his testimony would be merely cumulative. We conclude that Armstrong is distinguishable on its facts.

Defendant’s contention that he was not proven guilty beyond a reasonable doubt is likewise without merit. It is the jury’s province to determine the guilt or innocence of an accused and its verdict will not be set aside on review unless so unsatisfactory as to leave a reasonable doubt of guilt. (People v. Hairston, 46 Ill.2d 348, 263 N.E.2d 840.) Where the evidence is merely conflicting, this court will not substitute its judgment for that of the jury or the trial court. (People v. Stringer, 52 Ill.2d 564, 289 N.E.2d 631.) Defendant’s confession admits that he walked to the playground on the night in question with Carter, Stanley Howell and Bruce Hawkins, that he saw two youths on the court, that Carter hit one youth in the face with a chain, that he then fired his pistol twice, hitting the other person. Carter’s testimony at trial corroborates these events. Defendant’s subsequent repudiation of that confession and his alibi testimony, taken together with inconsistencies in Carter’s testimony, were properly resolved by the jury in rendering their verdict. We do not find the evidence so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt.

Defendant’s final contention is that the prosecutor’s closing argument was inflammatory and prejudicial, and thereby denied defendant a fair and impartial jury. Objection is made to portions of the prosecutor’s argument wherein he commented on the Christmas season, labeled defendant a “maniac” and a “punk” and continually exhorted the jury in rather strong language to convict defendant of murder.

Improper remarks will not constitute reversible error unless substantial prejudice results. (People v. McCorry, 51 Ill.2d 343, 282 N.E.2d 425; People v. Nilsson, 44 Ill.2d 244, 255 N.E.2d 432.) While the prosecutor’s remarks exceeded the bounds of propriety, they were not of such magnitude as to constitute prejudicial error so as to deprive defendant of a fair trial. “Considering the comments made in light of the evidence of guilt presented by the prosecution it cannot be said that they represented a material factor in the conviction and that the verdict would have been different had the comments been unsaid.” People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771.

Accordingly, the judgment is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Paul Bargus, Defendant-Appellant.
    (No. 57750;
    First District (5th Division)
    March 29, 1974.

      Kenneth L. Gillis, Deputy Defender, of Chicago (Steven Clark, Assistant Appellate Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Douglas Cannon, Assistant State’s Attorneys, and Ferdinand Minelli, Senior Law Student, of counsel), for the People.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Defendant was indicted for murder, attempt murder and two counts of aggravated battery. Following a jury trial, he was found guilty on the two. counts of aggravated battery (Ill. Rev. Stat. 1971, ch. 38, pars. 12—4(a), 12—4(b)(1)) and was sentenced to 3 to 9 years. He appeals contending that the State failed to prove beyond a reasonable doubt that he was not acting in self-defense or in defense of others. He also argues that his sentence is excessive.

The following evidence was adduced.

Edward Early testified for the State:

At approximately 3:30 A.M. on February 13, 1971, James Cohen, Patrick Moore, Reggie Harper and he entered a tavern called Reefs. At the rear is a poolroom with four pool tables and to the right as one enters the poolroom is a washroom. Shortly after entering the poolroom area he recognized Tom Martinez, a person who had spoken to him in a derogatory manner the week before. They approached each other and carried on a conversation for approximately 3 to 5 minutes regarding their previous encounter. The witness said “forget it,” pushed Martinez away from him and walked toward where Cohen was playing pool with Robert West. As he was walking away, someone touched him from behind and then he was slapped in the face. He pushed the assailant away and stood near Cohen. Defendant was standing approximately 10 to 12 feet away against the wall near the washroom. A few minutes later a gun was fired and Guy Mansfield fell to the floor. The witness turned and saw defendant fire a .25 automatic pistol at him. The bullet entered his left side and lodged in his backbone. He was hospitalized for a total of 27 days as a result of the wound. Defendant and several other patrons ran out the front door. The witness denied that he owned a knife, that he threatened anyone or that he heard defendant warn him prior to the shooting.

Patrick Moore, for the State:

He is an acquaintance of Early, Cohen and Reggie Harper. On the date in question, he was shooting pool when he saw Early and another man fighting. Early had pushed the fellow against the wall, but no punches were exchanged and no one fell to the floor. A second man came behind Early and Early knocked him down. Without saying anything, defendant fired two shots; the first hit Mansfield who was leaving the washroom and the second hit Early. Neither Early nor Mansfield had a weapon and neither man threatened defendant. In a line-up at the police station, the witness identified defendant as the man who did the shooting.

Reggie Harper, for the State:

He was with Early at Reefs on February 13, 1971. Early recognized one of the customers and after a brief argument a fight ensued and the man fell against the wall. Early was punching him, but he had not fallen to the ground when another person came behind Early. Early struck this second fellow and he fell to the floor. Defendant, who had been drinking, arose from his stool near the wall and approached the pool table. He fired two shots without a warning; the first struck a man leaving the washroom and the second struck Early. The witness identified defendant at a police line-up as the man who did the shooting.

James Cohen, for the State:

On the date in question, he went to Reefs with Early, Harper and Moore. While shooting pool with West, he heard a rumble and saw Early fighting with someone. Another person came behind Early and Early knocked him down. Defendant walked toward the door, and without saying anything, shot Mansfield, who had just stepped out of the washroom, and then shot Early. Early did not have a knife.

John Martinez testified for the defense:

He, William Villalone, John Bargus, Richard Rivera and defendant arrived at Reefs at approximately 4:30 A.M. on the date in question. While eating a sandwich and watching John, Willie and defendant play pool, he was approached by Early who accused him of cursing and slapping Early a few weeks ago in Reefs. Although he denied the accusations, Early began jabbing him with the knife. When Villalone sought to intervene, Early threatened him. Early then put the knife in his back pocket and began punching him all over the face and head. Early continued kicking him when he fell to the floor. Early also struck Villalone when he told him to “lay off.” The crowd of 20 or 30 people were screaming “Kill, beat him to death.” Defendant got off his stool and warned Early more than once to “lay off of him, that is enough; he has had enough.” Early turned and walked to within three feet of defendant and was reaching into his back pocket when defendant shot him. A second man jumped defendant and he shot that man also. The witness did not require medical attention although he missed a day of work.

William Villalone, for the defense:

He substantially corroborated Martinez’s testimony. He also testified that Martinez was not bleeding from the fight. Early did not strike defendant although he was advancing toward defendant when the shot was fired. Mansfield did not strike or threaten defendant.

John Bargus, for the defense:

In addition to substantially corroborating the testimony of the other defense witness, he testified that the defendant warned both Mansfield and Early before he shot them.

Defendant, on his own behalf, testified:

He was afraid when Early began poking a knife at Martinez. The remainder of his testimony was substantially similar to that of previous defense witnesses.

Robert West testified for the defense:

He is a C-.T.A. bus driver. He was playing pool with Cohen at 4 A.M. on the date in question when Early and three other “guys” entered the tavern. Early and another fellow had knives and were swinging them around. After 4:30 A.M. Early walked over to where a stocky fellow was sitting on a stool, put a knife up to his throat and said he was going to kill him. Early then placed the knife in his back pocket and began beating and kicking him until the fellow fell to the ground. Another man tried to get Early to stop, but Early knocked him down. Defendant then warned Early but he continued beating Martinez until defendant shot him. Defendant never moved toward Early nor Early toward defendant. Manfefield was shot a moment later when he grabbed defendant’s arm.

OPINION

A person is “justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, * * (Ill. Rev. Stat. 1971, ch. 38, 7—1.) It is the province of the jury to weigh conflicting evidence and determine from the facts and circumstances whether a justifiable use of force has been exercised by defendant in his self-defense or defense of others. (See People v. Carter, 3 Ill.App.3d 121, 278 N.E.2d 209.) A reviewing court will not substitute its judgment for that of the jury unless the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. (People v. Zuniga, 53 Ill.2d 550, 293 N.E.2d 595.) Here, there was sufficient evidence for the jury to find that defendant’s conduct in using the gup was not justifiable in defense of himself or Martinez. There is conflicting testimony whether the danger to defendant warranted the use of a gun. According to the one “neutral witness,” West, defendant had not been attacked or threatened. There is also conflicting evidence on whether Martinez was in danger of imminent death or great bodily harm. It is undisputed, however, that he was not bleeding from the beating and his condition was not such that he required medical care. We conclude that the evidence is not so unsatisfactory as to leave a reasonable doubt of defendant’s guilt.

The sentence imposed for this Class 3 felony is also proper under the Illinois Unified Code of Corrections (Ill. Rev. Stat., 1972 Supp., ch. 38, par. 1005—8—1(c).) The power to reduce sentences imposed by trial courts must be applied with considerable caution and circumspection because the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals. We believe that to be the case here and hold that the sentence is not excessive. People v. Taylor, 33 Ill.2d 417, 211 N.E.2d 673.

Accordingly, the judgment is affirmed.

Affirmed.

SULLIVAN, P. J., and DRUCKER, J., concur.


author: Mr. PRESIDING JUSTICE SULLIVAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Danile Salcedo Torres, Defendant-Appellant.
    (No. 57886;
    First District (5th Division)
    March 29, 1974.

      Cornelius E. Toole, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Barry Rand Elden, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court:

After a jury trial, defendant was found guilty of murder and sentenced to a term of 14-20 years. On appeal, he contends error was committed in that (1) a Spanish-speaking attorney was not appointed to defend him; (2) his trial should have been in Spanish, as well as in English; (3) a police officer was allowed to act as an interpreter for the prosecution; (4) his wife was permitted to testify to a confidential conversation; and (5) a police officer was allowed to testify to a translation to him by a third person of a spontaneous declaration in Spanish by defendant’s wife.

It appears that Thomas Penabad was offered by defense counsel to act as interpreter. After being interrogated by the court and the State concerning his qualifications, he was accepted. Jose Mercado was then offered by the State to act temporarily as its interpreter, because a Mr. Rios was unavailable. He was also interrogated by the court concerning his qualifications and was allowed to act as interpreter without objection by defense counsel. Subsequently, during the trial, Manuel Rios, a police officer, arrived and was substituted as the State’s interpreter without any questions as to his qualifications and without objection by defense counsel.

The following testimony was received: Carmen Velez, defendant’s wife, testified for the State that on October 16, 1969, she and defendant had been living apart about 1 year, although they continued to work at the same factory. On October 15, 1969, defendant approached her at work and asked her to come back to him. She replied, “No, I do not want to go back with you, because you are a very bad man.” Defendant then said, “If I don’t kill you, I will kill your brother.” A co-worker at the factory was present during this conversation.

She further testified that at about 7 A.M. on October 16, 1969, she and her daughter left their apartment and were waiting on the front steps of the building for her brother, when she heard “something that exploded”. She looked through the glass outer door and saw her brother lying up against the door with a revolver on the floor at his side and her husband kneeling over him. She saw defendant take hold of her brother’s neck. Defendant looked at her and, after breaking through the glass door, fled. She was unable to see whether there was anyone else in the hallway near her brother and defendant. She did not know Domingo Pratt, nor did she see him or anybody else there at the time of the shooting.

Thomas Blomstrand, a police officer, testified for the State that on October 16, 1969, he responded to a radio call, and upon arriving at the scene of the occurrence he saw a man “laying on his side with his head and shoulder and right arm to a broken window of a front door”, and “lying next to him on the floor in the hallway was a revolver”. He also testified that the victim’s sister was excited and speaking in Spanish. An interpreter at the scene informed him that she said her husband had shot her brother.

Defendant testified that early on October 16, 1969, he and Domingo Pratt stopped at tire residence of his wife to drive her to work. He and Pratt entered the building and met his wife, his daughter and his brother-in-law in the hallway. An argument ensued between Pratt and his brother-in-law, who was shot by Pratt. His wife had gone outside when the argument began, and after the shooting he opened the door and left, and Pratt broke the glass door as he left. He denied that he had told his wife at work the day before that he was going to kill her brother, and he denied that he shot or that he touched his brother-in-law that morning.

OPINION

I.

Defendant first contends he was denied the effective assistance of counsel, because he was not provided with a Spanish-speaking attorney at arraignment.

It is well established that arraignment is a “critical stage” in a felony case and that the right of counsel attaches automatically before any plea is made or accepted. (People v. Hessenauer, 45 Ill.2d 63, 256 N.E.2d 791.) At the arraignment, through a court approved interpreter, defendant in answer to questions by the court, stated that he had no lawyer, that he had no money to hire one, and that he would like the public defender to be appointed for him. The court then appointed the public defender and directed him to use the interpreter and discuss the charge with defendant. After a short period of time, the appointed counsel informed the court that the discussion had taken place and that defendant was entering a plea of not guilty.

We have found no evidence in the record nor is it argued by defendant that he was not fully informed at arraignment concerning the charge against him. Nor does our review of the record reveal any evidence that defendant was unable to comprehend what was taking place during the arraignment proceedings. To the contrary, it appears that defendant was fully informed of his rights by the public defender and, in the absence of any indication of incompetence in the manner his appointed counsel carried out his duties, we are of the opinion that no prejudice resulted to defendant because he did not have a Spanish-speaking attorney. We conclude that the court did not err in appointing a non-Spanish-speaking attorney to represent defendant at arraignment. See People v. Harper, 43 Ill.2d 368, 253 N.E.2d 451.

II.

Defendant next contends he was denied a fair trial because (1) he was not furnished with an indictment in the Spanish language; (2) the trial and other proceedings were not conducted in Spanish as well as in English; and (3) he could not speak or understand English with any proficiency and, as a result, could not comprehend the totality of the proceedings.

Defendant provides no authority in support of his argument that he should have been furnished with an indictment in Spanish, and we believe that the rule to be applied in the case of a foreign-speaking defendant is the same for all defendants; namely, that their constitutional rights should be protected, including the right to be fully informed concerning the charges in an indictment. We have already found that no error resulted because a Spanish-speaking attorney was not appointed on arraignment, and that defendant was fully informed by his attorney, with the assistance of the appointed interpreter, concerning the charges against him. We further note that there is no contention that the defendant was not provided with a copy of the indictment in English^ as required by section 113—4(a) of the Criminal Code (Ill. Rev. Stat. 1969, ch. 38, par. 113—4(a)), and we conclude that he was not deprived of a fair trial because the indictment was not in the Spanish language.

Neither do we accept defendant’s contention that he was deprived of a fair trial because the proceedings were not conducted in Spanish. As we view it, a defendant has a right to be fully informed of proceedings, and in order that he comprehend their nature, information should be given him by his attorney, using an interpreter where needed.

We note the following colloquy occurred during the cross-examination of defendant:

“(Answers through Interpreter Manuel Rios, unless otherwise indicated.)
Q: Mr. Torres, on the 16th day of October, 1969, how long had you resided in Chicago? He can answer himself. Do you need an interpreter?
A: Four or five years.
Q: You had lived in America for about 15 years, is that correct, at that time?
THE WITNESS: A: Yes.
Q: You understand my questions without the interpreter?
A: I need the interpreter.
THE WITNESS: A: Sometimes.
A: Sometimes.
Q: Sometimes you need the interpreter and sometimes you don’t, is that correct, Mr. Torres?
THE WITNESS: A: Yes.
Q: Mr. Torres, can you tell us in English where you lived on October 16, 1969?
A: I don’t know the exact date but I remember 4510 North Magnolia.
Q: Without the interpreter, Mr. Rios, if you will.
THE COURT: No, proceed. If he can answer it in English, he will but no dallying around. Some things he understands and some things he does not.
Mr. KAVANAUGH (Asst. State’s Attorney): Fine.
THE COURT: The jury must understand all of it.
MR. KAVANAUGH: I want to see if he can understand.
THE COURT: There is no question but that he can understand some English.”

Thus, it appears that defendant, living in this country for 15 years, had some familiarity with the English language. He understood the testimony given in Spanish and he has not argued that the court refused to allow the necessary time for his counsel to fully inform him through the interpreter of the proceedings. The record indicates that his trial counsel conducted a vigorous and able defense, which we believe could only have resulted from a full communication with his client.

See Tapia-Corona v. United States (9th Cir. 1966), 369 F.2d 366, where the court held that defendant, who spoke only Spanish and who had available for immediate consultation an official Spanish interpreter, sitting at the defense counsel table, was not entitled to have all English testimony instantly interpreted to him.

We are of the opinion that defendant has not shown he was prejudiced by die fact tiiat the proceedings were not also conducted in the Spanish language, and we believe that not only was sufficient opportunity afforded defendant to comprehend the totality of the proceedings but that he did, in fact, understand them, either through whatever familiarity he had with the English language or by communication with his attorney through the interpreter.

III.

Defendant’s next point is that the court erred in permitting Rios, a State’s Attorney’s police officer, to act as the interpreter for the prosecution. He argues that the court did not properly determine Rios’ qualifications and that, in any event, Rios should not have been permitted to interpret because of his office. In People v. Murphy, 276 Ill. 304, 114 N.E. 609, it was held that a police officer is not disqualified to act as an interpreter in a criminal case. In People v. Rardin, 255 Ill. 9, 99 N.E. 59, it was held that a degree of discretion must be vested in the trial court as to who should be used as an interpreter, and the exercise of such discretion will be reviewed only on a showing that it has been abused.

Defendant made no objection to Rios being substituted as interpreter and he has not informed us of, nor have we been able to glean from the record, any prejudice to defendant because of the use of a police officer interpreter. Neither has defendant pointed out the basis of his contention that Rios was not qualified, nor does defendant, who had his own interpreter present, claim that Rios did not honestly and impartially perform his work. In view thereof, we are of the opinion that it was not error to permit the police officer to act as an interpreter here.

Defendant also, under this legal point in his brief, argues that the entire proceedings should have been in the Spanish language as well as English. He likens his position to that of a deaf-mute, in the sense that neither understands the utterances of the court, the attorneys or the witnesses. He then argues that “Illinois chapter 51—par. 58.01” requires the entire proceedings to be interpreted as if a “deaf-mute was a party”. And because “chapter 165—11, Illinois Revised Statutes” did not require the translation of the entire proceedings as was required for deaf-mutes, that he was denied equal protection of the law.

We first note that in 1969, section 48.01 of chapter 51 (Ill. Rev. Stat. 1969, ch. 51, par. 48.01) was amended to apply only to deaf persons and that it merely requires a deaf-sign interpreter “to interpret the proceedings to and the testimony of such deaf person”. Section 165—11 of chapter 38 (Ill. Rev. Stat. 1971, ch. 38, par. 165—11) requires, in the case of a non-English-speaking defendant, the appointment of an interpreter that defendant can understand and who can understand him, and paragraph 65—12 of chapter 38 (Ill. Rev. Stat. 1971, ch. 38, par. 165—12) requires the interpreter to “interpret or translate all questions propounded or answers given as directed by the court”.

Section 48.01 of chapter 51 requires only that a deaf person’s testimony be interpreted and that he be informed of the proceedings by the interpreter, and, from our review of the record, we find that defendant was not deprived of equal protection of the law because his trial was not conducted in the Spanish language.

rv.

Defendant also argues error was committed when his wife was permitted to testify as to a privileged conversation. She testified that on the day before tire shooting, defendant approached her at work in the presence of a co-worker and asked her to come back to him. When she refused, he said, “If I don’t kill you, I will kill your brother.” Defendant maintains that this testimony by his wife violated paragraph 155—1 of the chapter 38 (Ill. Rev. Stat. 1969, ch. 38, par. 155—1), which prohibits, with certain exceptions, testimony in a criminal proceeding by a spouse concerning any communication made by the other. In People v. Palumbo, 5 Ill.2d 409, 414, 415, 125 N.E.2d 518, the court stated:

“ ‘Communications between the spouses, privately made, are generally assumed to have been intended to be confidential, and hence they are privileged; but wherever a communication, because of its nature or the circumstances under which it was made, was obviously not intended to be confidential it is not a privileged communication. [Citations.] And, when made in the presence of a third party, such communications are usually regarded as not privileged because not made in confidence.’”

The record here discloses that the conversation took place in a factory, where others were working, and in the presence of a co-worker. Under these circumstances and considering the fact that in the conversation defendant threatened to kill his wife or her brother, we believe that the statement to which his wife testified was not intended to be confidential and was properly admitted.

V.

Defendant’s final contention is that the court erred in permitting a police officer to testify to a statement made at the scene by the victim’s sister, who was also defendant’s wife. The statement was made in Spanish and was translated to the officer by a bystander, which defendant argues was hearsay so far as the officer was concerned.

The State contends that the statement qualified as an exception to the hearsay rule in that it was made while she was in a state of excitement and before she had sufficient time for reflection and fabrication. Officer Blomstrand testified that he was in a police car when he received a call at 7 A.M. concerning the shooting, and he went directly to the scene. When he arrived, defendant’s wife was speaking excitedly in Spanish, and an interpreter at the scene told him that she was saying that her husband had shot her brother. In People v. Freeman, 113 Ill.App.2d 7, 251 N.E.2d 310, the court stated that three factors were necessary to bring a statement within the spontaneous declaration exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement; (2) the absence of time to fabricate; and (3) the statement must relate to the circumstances of the existing occurrence. In Peterson v. Cochran & McCluer Co., 308 Ill.App. 348, 356, 357, 31 N.E.2d 825, the court said:

“Whether the circumstances under which a declaration was made are such as to make it reasonably probable that it was spontaneous, presents a preliminary question for the determination of the trial court. The question of admissibility is one of administration, each case being properly decided upon its own facts, and in this regard the trial court should be clothed with a reasonable degree of latitude, since the application of the principle depends on the circumstances of the particular case.”

Here, absent the fact that the statement was translated to a police officer by a bystander, the statement would have been admissible under the spontaneous declaration exception to the hearsay rule. We believe, however, that the rule to be used here is set forth in 3 Wigmore, Evidence, § 812(3) (Chadbourn Revision 1970):

“(3) A person conversing with a third person through an interpreter is not qualified to testify to the other person’s statements, because he knows them only through the hearsay of the interpreter. Ordinarily, therefore, the third person’s words cannot be proved by any one except the interpreter himself * * *"

Under this rule it would appear that the interpreter should have been called to testify concerning the statement and that it was improper for the court to have allowed the police officer to do so. This conclusion requires an examination of the record to determine whether the error was so prejudicial as to require a new trial. In this regard, we note that defendant’s wife testified that (1) she heard the gunshot; (2) she saw her brother lying on the floor as she looked through the glass door; (3) she saw defendant kneeling on the floor with his hands around her brother’s neck; (4) she saw the revolver on the floor next to her brother; (5) she did not see any other person there; and (6) defendant had threatened to kill her or her brother the day before. We note also that, after the shooting, defendant fled to New Jersey, where he used another name.

In view thereof, we believe that the translated statement of defendant’s wife was the substance of her unimpeached trial testimony and was merely cumulative thereto. Even if hearsay testimony is improperly admitted, reversal is not warranted where the same matter has been proved by properly admitted evidence. People v. Williams, 117 Ill.App.2d 34, 254 N.E.2d 81.

Here, defendant does not contend that the evidence was insufficient to prove him guilty beyond a reasonable doubt, and we do not believe that a different result in the event of a retrial would reasonably be anticipated, even if such retrial were totally free from improper evidence. See People v. Wilson, 51 Ill.2d 302, 281 N.E.2d 626.

For the reasons stated, we believe that the admission of the police officer’s testimony concerning the translated statement of defendant’s wife was, at most, harmless error beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.

Accordingly, the judgment is affirmed.

Affirmed.

DRUCKER and LORENZ, JJ., concur.