author: Mr. JUSTICE BURKE Mr. JUSTICE BURKE

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Barksdale, Defendant-Appellant.
    (No. 59150;
    First District (1st Division)
    November 27, 1974.

      Supplemental opinion upon denial of rehearing filed December 23, 1974.

      Paul Bradley and Allen L. Wiederer, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and James S. Veldman, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

James Barksdale was found guilty after a jury trial of the crimes of rape, deviate sexual assault and aggravated kidnapping. (Ill. Rev. Stat. 1971, ch. 38, pars. 10 — 2, 11 — 1 and 11 — 3.) He was sentenced to concurrent prison terms of 50 to 100 years for rape, 50 to 100 years for aggravated kidnapping and 10 to 14 years for deviate sexual assault. Defendant appeals, arguing: (1) that the trial court improperly refused to rule upon his motion to exclude evidence of a prior conviction until he had testified; (2) that the evidence was insufficient to prove venue beyond a reasonable doubt; (3) that the trial court erred in permitting the introduction of rebuttal evidence which showed the commission of another crime; (4) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; (5) that his motion to suppress evidence obtained as the result of an illegal arrest was improperly denied; and (6) that the closing argument of the prosecutor was improper and prejudicial.

The complainant testified that on June 23, 1971, at approximately 4 A.M., she was walking down Sheridan Road in Chicago approximately one block from her house when a car passed and a man, whom she later identified as the defendant, shouted to her. She continued to walk and the car pulled up alongside. The defendant jumped out of the passenger side of the vehicle, hit her over the head and dragged her into the car. Defendant pushed her onto the floor of the back seat, put what appeared to be a gun to her head and told her to keep quiet or he would kill her. The defendant then got into the car and started driving. While he drove, defendant kept his hand on the complainant’s upper thigh, telling her not to move or he would kill her. At approximately 6:10 A.M., the defendant stopped the car in an open area which the complainant could not identify. Defendant went to the trunk of the vehicle and removed a cord which he used to tie the complainant’s hands behind her back. Defendant then dragged the complainant from the car and threw her down on a sleeping bag which he had stretched out. While the complainant was sitting on the sleeping bag, the defendant was directly in front of her. Defendant ripped open the complainant’s blouse, removed her bra and tore it in half. Defendant then removed her pants. Defendant ordered her to perform an act of oral copulation upon him and she complied. Defendant then struck her above the right breast and on the side of the head, and threatened to beat her more severely. Defendant then performed an act of oral copulation upon her. Thereafter, defendant untied her hands and allowed her to put on her clothing.

Defendant took the complainant back to the car and placed her in the rear seat. A short time later, he ordered her to remove her clothing. She complied and the defendant forced her to have intercourse with him. Defendant ordered her to get down on her forearms and knees and had anal intercourse with her. Defendant then ordered the complainant to get dressed and to lie down on the floor of the car. Defendant started driving and told the complainant not to report the incident to the police. The complainant testified that defendant dropped her off in an alley and told her not to move for 10 minutes. After the defendant left, the complainant went to a nearby garage where she told two men what had occurred. The police were called and they took her to Holy Cross Hospital.

The complainant described her attacker as a male Negro, 5 feet 10 inches tall, medium brown complexion, short-cropped black hair, brown eyes, 150 to 175 pounds, 25 to 26 years of age, ear-length sideburns, wearing wire-rimmed glasses, a short-sleeved knit shirt, corduroy slacks, brown sandals, black socks and red underwear. Her attacker had little pockmarks on his face below the sideburns. He did not have a moustache. The complainant described the defendants car as a black, two-door Chevrolet Impala hardtop with black interior.

The complainant testified that on August 3, 1971, she attended a lineup at the Evanston Police Station with Chicago Police Investigator Bauer. She viewed a lineup of five men and identified the defendant as the man who had attacked her.

Stanley Szezesny, a Chicago police officer, testified that on June 23, 1971, at 8:20 A.M., pursuant to a radio message, he proceeded to the Western Auto Rebuilt Company, 3343 South Columbus, Chicago, Illinois. There he interviewed the complainant. Officer Szezesny testified that the complainant had a bruise on the upper portion of her forehead, her hair was disarranged, her eyes were red as if she had been crying, and her clothing was soiled. He transported the complainant to Holy Cross Hospital where she was examined.

Dr. Nathan Paparo testified that on June 23, 1971, he examined the complainant in the emergency room of Holy Cross Hospital. A vaginal smear was taken and tests proved that it was positive for the presence of spermatozoa. The complainant had a contusion about her forehead and there were multiple contusions on her breast, buttocks and lower extremities. She was extremely emotional, apprehensive and distraught.

Gerald Kirkham, a detective with the Evanston Police Department, testified that on August 2,1971, at approximately 10:45 P.M. he observed the defendant driving a 1968 Chevrolet Impala two-door, black with a black vinyl top, in the 1800 block of Sheridan Road in Evanston, Illinois. He followed the vehicle until the defendant parked in the Northwestern University parking lot and proceeded onto the campus. Detective Kirk-ham- testified that he walked up to defendant’s vehicle and observed an AM-FM cassette radio in the back seat. He then returned to his car and called for his supervisor, Sergeant Schockweiler, who arrived at the scene within 5 minutes. A short time later defendant returned to his vehicle. Detective Kirkham and Sergeant Schockweiler approached the defendant and identified themselves as police officers. Defendant produced a driver’s license and at the officers’ request, opened the trunk of his vehicle. Defendant was placed under arrest and Sergeant Schockweiler searched the interior of defendant’s car where he found a chrome-plated, .32-caliber, automatic handgun underneath the driver’s side of the front seat; the weapon was loaded with four live .32-caliber cartridges.

Thomas Hennegan, a detective for the Evanston Police Department, testified that after defendant’s arrest, he recovered a pair of wire-rimmed glasses in a brief case in the rear seat of defendant’s vehicle.

Kathy Nelson and Maynard Moore testified for the defense that during June and July of 1971 they knew the defendant, and he always wore a moustache. Kathy Nelson testified that the defendant had always had a medium-length natural haircut.

The State then presented a rebuttal witness who testified that 2 weeks after the complaining witness was raped, on July 8, 1971, at approximately 11 P.M., she was hitchhiking in the area of Fargo and Sheridan Road, Chicago, Illinois. She received a ride from the defendant who was driving a two-door, black Impala. She remained in defendant’s car for 30 to 40 minutes until the car came to rest on a dirt road with trees on both sides. She remained at that location for approximately 4 hours. During that time, it was dark outside for 3 hours and light outside for 1 hour. She described the man she later identified as the defendant as a male Negro, 5 feet 10 inches, 170 pounds, short Afro, small sideburns, pockmarks on his face and wearing gold-framed glasses. At that time, defendant was not wearing a moustache. The witness testified that the next time she saw defendant was on August 3, 1971, at the Evanston Police Station. At that time defendant was wearing a moustache.

On cross-examination, the State’s rebuttal witness testified that prior to entering defendant’s car, she had consumed half a bottle of wine. She testified that after the incident, she told her father what had occurred and the police were then called. When she first talked to the police, she guessed that the car was a dark green Skylark. She stated that she had several conversations with police officers during which she described the defendant and the car he was driving. In response to questioning by defense counsel, she stated that she had previously testified in court as to what had occurred on July 8, 1971. The witness stated that she originally told the police that the defendant’s car was a four-door hardtop, dark color, possibly green, with a squeaky passenger door.

On re-direct examination, the State’s rebuttal witness testified that during the incident defendant had a chrome-plated revolver in his hand.

In surrebuttal, the defense called Chicago Police Investigator Joseph Bauer who testified that he was assigned the investigation of the incident involving the State’s rebuttal witness. At that time she told him that on July 8, 1971, she was hitchhiking when she was picked up by a driver in a motor vehicle. She described the car the offender was driving as a later model, two-door hardtop, green interior and exterior, floor console, bucket seats, electric clock and stereo. On cross-examination Investigator Bauer testified that to get a description of the vehicle, he took the witness to a parking lot and showed her a number of vehicles of different makes and models. At that time she indicated that one car was similar to the car the offender was driving. The car she identified was dark green in color.

Defendant’s first contention is that it was error for the trial court to refuse to rule on his motion to exclude evidence of his prior convictions for rape, made pursuant to People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, until after he had testified. At the close of the State’s case and again after two defense witnesses had testified, defendant moved to exclude evidence of his prior convictions for the crime of rape if he were to testify. The trial court, on each occasion, refused to rule on defendant’s motions, stating that it was premature and that the trial court would rule only after the defendant had testified. Defendant now urges that the trial court’s refusal to rule prohibited him from testifying and thereby prejudiced him.

Section 6 of the Illinois Criminal Code of 1874 provides that evidence of prior convictions may be admitted in criminal cases for the purpose of impeaching a witness’ credibility. (Ill. Rev. Stat. 1971, ch. 38, par. 155 — 1.) The Montgomery court adopted the then proposed Federal Rule 609 concerning the admissibility of prior convictions in construing section 6. Montgomery held that evidence of prior convictions may be admitted to impeach a witness only after three conditions are met: (1) the prior convictions are either felonies or crimes involving dishonesty or false statements; (2) the date of conviction or the date of release of the witness from confinement, whichever is later, is not more than 10 years prior to the trial; and (3) the trial judge must determine in his own discretion that the probative value of the prior convictions outweighs any unfair prejudice that their admission may cause the defendant. The court has emphasized that even though the first two conditions are met, the trial judge has the discretionary power to admit or not to admit the prior convictions. People v. Ray, 54 Ill.2d 377, 297 N.E.2d 168.

In the instant case the first two conditions for the admission of the defendant’s prior convictions were met. The defendant, in August 1958, was found guilty of one count of armed robbery, two counts of rape and one count of aggravated assault with intent to commit rape. He was sentenced to 25 years on each count of rape and received lesser sentences on the other charges. He was released on parole in April 1965 but was shortly thereafter returned to the penitentiary for a parole violation. He was ultimately released from custody in February 1970. The instant trial was held in October and November of 1972. The prosecution desired to have only the rape convictions admitted if the defendant testified. Those charges were felonies and the defendant had been released from custody within 10 years of the instant trial. Therefore, the first two requirements of admissibility under the Montgomery rule were met.

What remained to be done under the Montgomery rule was for the trial judge to use his discretion to determine whether the probativeness of the prior convictions outweighed any unfair prejudicial effect they might have upon the defendant. The defendant contends that this does not give the court the discretion to wait until the defendant has testified before deciding on the admissibility of the prior convictions. The question of when a trial court should rule on a motion to exclude prior convictions was considered in the appellate court decision of Ray. The court said, “The trial court in its discretion may desire to grant such a motion, deny the same, or withhold its ruling until further evidence is heard * * (People v. Ray, 3 Ill.App.3d 517, 523, 278 N.E.2d 170, 174, reversed on other grounds, 54 Ill.2d 377, 297 N.E.2d 168.) The court may be in a better position to ascertain the probativeness and prejudicial effect of such evidence after it has heard the defendant’s testimony. We are of the opinion that a trial court should have the discretion to withhold its ruling on a motion to suppress the admission of prior convictions until the defendant has testified.

Defendant’s second contention is that the evidence failed to prove venue beyond a reasonable doubt. Defendant argues that from the complainant’s trial testimony, it is unclear that the offense occurred within the boundaries of Cook County, since complainant testified that the defendant drove for several hours and she could not positively identify the place where the incident occurred.

• In People v. Taylor, 121 Ill.App.2d 403, 257 N.E.2d 524 (reversed on other grounds, 48 Ill.2d 91, 268 N.E.2d 865), this court considered a similar contention. There the complainant testified that the defendant had picked her up in the city of Chicago, forced her into a car and then drove to a secluded area. Thereafter, defendant drove her back and dropped her off in the city of Chicago. On appeal, defendant argued that the evidence was insufficient to establish beyond a reasonable doubt that venue could he in Cook County since within the time that defendant drove, he could have reached four other counties. This court rejected that contention holding that venue was sufficiently proven to he in Cook County, Illinois.

Similarly, in the case at bar, the complainant testified that defendant abducted her as she walked down the street on North Sheridan Road, Chicago, Illinois. The defendant then drove to a secluded spot, which she did not recognize. Although the exact time the return trip took is not a matter of record, the prosecutrix testified that while returning her assailant stated that they were several minutes from the city. Thereafter, the defendant dropped her off on the southwest side of Chicago, Illinois. This evidence was sufficient to establish venue beyond a reasonable doubt.

Defendant’s third contention is that he was denied a fair trial by the admission into evidence of the State’s rebuttal witness’ testimony that he was involved in a separate and distinct crime. The rebuttal witness was the complaining witness in an indictment of the defendant for another rape. During the State’s presentation of its case, the prosecutrix in the instant case testified that during the incident, the defendant did not have a moustache. The defendant presented two witnesses who testified that during June and July, 1971, he did have a moustache. In rebuttal, the State called its rebuttal witness for the limited purpose of testifying that in July, 1971, defendant was not wearing a moustache. During her direct testimony, she stated that she was hitchhiking when she received a ride from the defendant. She remained in defendant’s car for 30 to 40 minutes until the car stopped on a dirt road. She stayed at that location for approximately 4 hours. She stated that at that time she was able to get a clear look at the defendant and he was not wearing a moustache. The next time she saw the defendant was at the Evanston Police Station at which time he was wearing a moustache.

The only testimony brought out by the prosecution on direct examination of its rebuttal witness which might have -implied the defendant’s participation in another crime was the witness’ reference to having seen the defendant at the police station. However, prior to that testimony the defendant objected to the witness’ description of him. The defendant demanded that the police report be shown to the jury to determine what the witness had told the police “on these particular dates in question.” The defendant’s statements were made in open court before the jury. The witness’ testimony concerning seeing the defendant at the police station would have had little, if any, impact upon the jury after the defendant had already announced to the jury that the witness had made reports to the police concerning the defendant.

It is doubtful that the mere fact the defendant was seen by a witness in the police station after having been with the defendant some weeks earlier constitutes evidence of another crime. (See People v. Jackson, 103 Ill.App.2d 209, 243 N.E.2d 551.) However, evidence of other crimes is admissible for a number of purposes including that of identifying the defendant. (People v. Walker, 34 Ill.2d 23, 213 N.E.2d 552; People v. Harris, 46 Ill.2d 395, 263 N.E.2d 35; People v. Palmer, 47 Ill.2d 289, 265 N.E.2d 627.) The State’s purpose in presenting the rebuttal witness’ testimony was to refute the defendant’s witnesses who had put into dispute the prosecutrix’s description of her assailant. We are of the opinion that the prosecution stayed within this purpose on direct examination, and, therefore, any inferences that the defendant had participated in another crime were not improper.

The defendant also objected to testimony elicited by the prosecution on redirect examination of its rebuttal witness that the defendant had a chrome-plated handgun on the day she was with the defendant. The testimony, although clearly harmful to the defendant, must be weighed in relation to the statements made by the defense and the testimony elicited by the defense on cross-examination.

Immediately after the State’s rebuttal witness stated on direct examination that she saw the defendant at the police station some time after her initial encounter with him, the defense announced to the court in front of the jury;

“No, if the Court please, I think it is pretty evidence [sic] that what the State has done is introduced evidence of another crime. Why would she be in a police station?”

From this point on in the trial, it became evident that the defense had elected to forego any effort at keeping evidence of this other crime from the jury and rather chose to make a total attack on the credibility of the State’s rebuttal witness’ identification and description of the defendant. The defense, on cross-examination, questioned the witness in great detail as to how she described the defendant and his car to the police. Many questions were posed by the defense as to whether the witness had appeared in court concerning the matter. At one point defense counsel inquired whether the witness had appeared in court to “testify with respect to what happened that night.”

At the close of the defense’s cross-examination of this witness, it was quite clear to the jury that the defendant had been charged with a crime involving the State’s rebuttal witness. A defendant may not object to the interjection of evidence of another crime when he himself has introduced evidence of that other crime. People v. Sisson, 116 Ill.App.2d 66, 253 N.E.2d 486.

In response to the defendant’s strong attack on the State’s rebuttal witness’ identification and description of the defendant and the car he was driving, the prosecution on redirect sought to bolster the credibility of that description. This effort led to the witness testifying on redirect that she had seen the defendant in possession of a chrome-plated revolver similiar to the one later seized when the defendant was arrested. The witness then identified that gun, already admitted into evidence, as the one she had seen in the defendant’s hand that day. Although this testimony may have gone beyond what was necessary to establish the credibility of the witness’ testimony, there was no error. As we have already noted, the defense had already brought out evidence of this other crime and was in no position to object. Furthermore, even if the defense had a right to object, the admission of this testimony was harmless at this point because the defendant had already brought out the fact that the defendant was charged with a crime concerning what happened with the State’s rebuttal witness on that day. A defendant can neither complain of the admission of testimony which was invited by the defendant’s own tactics at trial (People v. Bell, 53 Ill.2d 122, 290 N.E.2d 214), nor object to evidence of another crime where he himself has introduced evidence of that other crime. People v. Sisson, 116 Ill.App.2d 66, 253 N.E.2d 486.

Defendant’s fourth contention is that the evidence was insufficient to establish his guilt beyond a reasonable doubt because his identification by the complainant was doubtful, vague and uncertain. Defendant argues that the time lapse of 6 weeks between the occurrence and the identification of the defendant, coupled with discrepancies in the complainant’s description of the defendant to the police as to age, moustache, length of hair and facial features, combined to create a reasonable doubt as to his guilt.

It has often been held that the identification of an accused is a question for the trier of fact. The testimony of the prosecutrix alone, if clear and convincing, is sufficient to sustain a conviction, even if denied by the defendant and not corroborated. (People v. Halteman, 10 Ill.2d 74, 139 N.E.2d 286; People v. Wright, 3 Ill.App.3d 829, 279 N.E.2d 398.) The amount of time intervening between the incident and the identification is a factor to be considered, but identifications have been upheld where more than 1 month has elapsed. (People v. Bennett, 9 Ill.App.3d 1021, 293 N.E.2d 687.) Similarly, the question of an identifying witness’ failure to notice or describe facial hair or scars is not a prerequisite to identification but affects only the weight to be attached to the identification testimony. (People v. Robinson, 3 Ill.App.3d 843, 279 N.E.2d 526.) Precise accuracy in describing a defendant’s characteristics is unnecessary where the identification is positive. People v. Miller, 30 Ill.2d 110, 195 N.E.2d 694.

In the case at bar, the complainant testified that she was abducted by the defendant as she walked down the street near her home on Chicago’s north side. The defendant drove her to a secluded area where he forced her to perform several acts of oral copulation and raped her. Defendant then drove her back to the city of Chicago and dropped her off in an alley on the southwest side of the city. The complainant testified that during the incident, which lasted several hours, she was able to clearly look at the defendant for substantial periods of time under adequate lighting conditions. Approximately 6 weeks after the incident, she attended a lineup at the Evanston police station which consisted of five men. After viewing the lineup, she positively identified the defendant as the man who had abducted and attacked her. After a careful review of the record, we find that the complainant’s testimony was clear, convincing and sufficient to support defendant’s conviction beyond a reasonable doubt. In addition, the complainant’s testimony was corroborated by other evidence at trial, including many specifics about the car the offender was driving, the gun he had in his possession and the wire-rimmed glasses he wore that night.

Defendant’s fifth contention is that the trial court erred in denying his motion to suppress evidence obtained as a result of an illegal arrest. On appeal the defendant’s only contention is that the officers arrested the defendant without having reasonable grounds to believe the defendant had committed an offense. Therefore, we will only address ourselves to the legality of the defendant’s arrest.

A police officer may arrest a person without a warrant when he has reasonable grounds to believe that the person is committing or has committed an offense. (Ill. Rev. Stat. 1971, ch. 38, par. 107 — 2(c).) The quantum of proof needed to establish probable cause is less than that required to sustain a conviction at trial. (People v. Harper, 16 Ill.App.3d 252, 305 N.E.2d 680.) The test of probable cause is whether a reasonable and prudent man in possession of the knowledge of the arresting officer would believe that the person to be arrested is guilty of a crime. People v. Macias, 39 Ill.2d 208, 234 N.E.2d 783.

At the pretrial motion to suppress, Evanston Police Sergeant Charles Schockweiler and Detective Gerald Kirkham testified that prior to the arrest of the defendant, they had information concerning six kidnappings and rapes which had occurred in the general area. The offender was described as a male Negro, approximately 19 to 25 years of age, 5 feet 9 to 5 feet 11 inches tall, slender build, slight Afro, moustache, sideburns and wearing tinted glasses. The vehicle used by the offender was described as a 1968 black Chevrolet with a black vinyl top, damaged to the left rear and right front of the vehicle. The inside of the vehicle was described as having non-factory air-conditioning, bench-type seats dark in color, a small portable combination radio and tape player, and a small hole the size of a quarter in the carpet on the front passenger side of the vehicle. One victim had also described the trunk as containing a loose spare tire, umbrella and red or blue headband.

On August 2, 1971, Detective Kirkham was travelling down Sheridan Road when he observed a black over black, 1968 Chevrolet with damage to the left rear, driven by a male Negro wearing glasses. He followed the vehicle until the driver parked in the Northwestern University parking lot. After the driver left the vehicle, Detective Kirkham examined the car from the outside and observed that it contained a non-factory air-conditioning unit installed in the middle of the console, a bench-type front seat black in color, a portable tape deck and AM-FM radio in the rear seat of the vehicle, and a small hole in the carpet below the right heater vent on the passenger side of the vehicle.

Detective Kirkham radioed for assistance and a short time later Sergeant Schockweiler arrived at the scene. After again inspecting the vehicle, they waited for the driver to return. As defendant was entering the car, the officers approached and identified themselves. The defendant fit the general description of the offender. He produced a driver’s license and stated that the vehicle belonged to his wife. At this point, the defense contends, the defendant had been effectively placed under arrest. In discussing this issue we will assume that the defendant’s contention as to the time of arrest is correct. Shortly thereafter, the seized articles were found underneath the front seat and in the trunk of the car the defendant was driving. Among the articles seized was the chrome-plated handgun later placed in evidence at the trial.

It is clear from the above testimony that prior to placing the defendant under arrest, the officers possessed sufficient information to believe that the defendant had committed a crime. The description the officers had of the offender’s vehicle matched exactly that of the vehicle driven by the defendant. Defendant, himself, fit the general description of the offender. We conclude that, based upon the knowledge which the arresting officers had, it was reasonable for them to believe that the defendant had committed an offense and they were therefore justified in placing him under arrest. People v. Drayton, 7 Ill.App.3d 812, 288 N.E.2d 922.

The defendant’s final contention is that he was denied a fair trial by the improper argument of the prosecutor. Defendant first challenges portions of the prosecution’s opening statement in which the prosecutor allegedly stated his personal opinion of the prosecutrix’s veracity. First, the prosecutor stated that he believed the prosecutrix was “an intelligent woman.” As the argument proceeded, the prosecutor stated several times that he believed that the evidence would convince the jury that the prosecutrix was an intelligent woman. Defendant objected to all these statements, and the court sustained several, but not all of these objections.

Where a defendant claims that a prejudicial argument was used in his prosecution he must establish that there was a reasonable possibility that the questionable language, in light of all of the evidence, was a material factor in his conviction. (People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771; People v. Berry, 18 Ill.2d 453, 165 N.E.2d 257.) We are of the opinion that the prosecutor’s statements that he believed the prosecutrix was an intelligent woman and that the evidence would so show, did not substantially prejudice the defendant’s rights. In light of the clear and convincing testimony of the prosecutrix, taken with the corroborating evidence, we hold that the prosecutor’s statements, if improper, were not a material factor in the defendant’s conviction.

Defendant next complains of three comments made by the prosecutor in his closing argument, which he alleges charged defense counsel with trickery. A careful examination of the record demonstrates that the defendant did not object to any of these comments. The error, if any, was therefore waived. People v. Weaver, 7 Ill.App.3d 1104, 288 N.E.2d 669; People v. Donald, 29 Ill.2d 283, 194 N.E.2d 227.

Defendant also complains that the prosecutor in the rebuttal portion of his closing argument stated that the jury did not have all of the facts regarding the State’s rebuttal witness and that the jury should not prejudge her conduct. Defendant urges that this comment informed the jury of other misconduct on the part of the defendant and was therefore improper. Prior to the prosecutor’s argument, defense counsel had gone into a lengthy discussion of the testimony of the witness, where he stated that he felt as if he had just ended two trials. Defense counsel argued that the “second trial” had as a complaining witness the State’s rebuttal witness whom he felt had lied on the witness stand and had severely hurt the State’s case. Defense counsel repeatedly referred to the rebuttal witness’ trial testimony and her inability to describe accurately certain features of the defendant’s automobile. Defense counsel also stated that the witness had trouble “making up” her story and that even her father did not believe her. Thereafter the prosecutor in the rebuttal portion of his closing argument stated that their rebuttal witness was called to the witness stand for a limited purpose, only to testify as to whether or not the defendant was wearing a moustache, and that the jury did not know all of the facts about the State’s rebuttal witness and therefore should not prejudge her conduct.

It is a well established rule that defense counsel cannot invite reply in his closing argument and thereafter complain on appeal that it was prejudiced by the rebuttal which followed. (People v. Pearson, 52 Ill.2d 260, 287 N.E.2d 715; People v. Bey, 51 Ill.2d 262, 281 N.E.2d 638; People v. Burton, 6 Ill.App.3d 879, 286 N.E.2d 792.) Here, defense counsel’s characterization of the State’s rebuttal witness as a liar, his statements that even her father did not believe her story, and his constant reference to her testimony and its believability invited the subsequent comments made by the prosecutor. Under these circumstances, defendant cannot complain of the comments which he himself precipitated. Furthermore, as we previously discussed, the defendant brought out in his cross-examination of the State’s rebuttal witness a great deal of evidence concerning this matter. The defendant cannot now complain that the prosecution has made a possible reference to another crime of the defendant when the defendant already has brought out evidence of that other crime. People v. Sisson, 116 Ill.App.2d 66, 253 N.E.2d 486.

The defendant finally complains that the prosecutor incorrectly defined reasonable doubt in his final argument. After stating that the defendant must be proven guilty beyond a reasonable doubt, the prosecutor said in his closing argument, “Beyond a reasonable doubt is not beyond beyond [sic] a reasonable doubt. Beyond a reasonable doubt is not beyond all doubt.” We are of the opinion that the statement was not a factor in the defendant’s conviction.

For the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

EGAN, P. J., and HALLETT, J., concur.

SUPPLEMENTAL OPINION ON DENIAL OF PETITION FOR REHEARING

Mr. JUSTICE BURKE

delivered the opinion of the court:

On page 2 of the petition for rehearing the defendant has cited the following language of the trial court in support of his argument that the judge considered that he had no discretion to pass on the motion before the defendant testified:

“Well, it’s too early for your motion now. * * * I will entertain your motion at that time after he takes the stand if he becomes a witness. * * * When I entertain your motion. I will consider ruling on it.”

The other remarks of the trial court are highlighted on page 3 of the petition. It is significant that Judge Ryan said: “Well, it’s too early for your motion now.” The People v. Montgomery case discussed (page 518) the factors noted in United States v. Gordon that a trial court should consider in passing on the admissibility of a prior conviction. One of the factors is “the subsequent career of the person.” It is difficult to imagine how that could be brought to the attention of Judge Ryan except by testimony; and the best source of that testimony would be the defendant. Consequently, Judge Ryan’s remarks could be construed to mean that he could not intelligently exercise his discretion until he heard evidence touching on the subsequent career of the defendant and that it would come when and if the defendant took the stand.

The requested rehearing is denied; certificate of importance is denied.

Denied.

EGAN, P. J., and HALLETT, J., concur.


source: Caselaw Access Project

author: Mr. JUSTICE EBERSPACHER

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Richard Miller, Defendant-Appellant.
    (No. 73-284;
    Fifth District
    December 2, 1974.

      Rehearing denied December 30,1974.

      Robert E. Farrell, of Mt. Venon, and James R. Streicker, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Dolores Johnson, State’s Attorney, of Golconda (Ralph J. Mendelsohn, of State’s Attorneys Task Force, of counsel), for the People.
   Mr. JUSTICE EBERSPACHER

delivered the opinion of the court:

This is an appeal by the defendant, Richard Miller, from judgment of conviction entered, on a jury verdict of guilty, by the circuit court of Pope County for the offense of theft under $150 and the imposition of a sentence of 270 days at the state farm.

The defendant raises two issues in this appeal: first, that the information charging him with theft is fatally defective because it fails to allege that defendant obtained “unauthorized” control over the property in question; and secondly, that he was not proven guilty beyond a reasonable doubt.

The relevant portion of the information charging the defendant read as follows,

“* 9 9 on the 25th day of October, A.D. 1972, at or about the hour of 7:30 P.M., the offense of Theft was committed in said County, at the property of said Randall Doty, situated in the County of Pope, State of Illinois, that said offense was then and there committed by Richard D. Miller, in that Richard D. Miller, did then and there knowingly obtain control over certain property, to-wit: Copper Cable Wire and Lightning Rod, of a value of less than $150.00, then and there being the property of Randall Doty, with the intent to deprive said Randall Doty permanently of the use and benefit of said property, contrary to the provisions of Paragraph 16 — 1, Chapter 38, Illinois Revised Statutes * *

Section 16 — 1 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 16— 1) provides in part:

“A person commits theft when he knowingly:

(a) Obtains or exerts unauthorized control over property of the owner; or
(b) Obtains by deception control over property of the owner; or
(c) Obtains by threat control over property of the owner; or '■ (d) * * *, and
(1) intends to deprive the owner permanently of the use or benefit of the property; * * s”

The defendant, relying principally upon People v. Stewart, 3 Ill.App.3d 699, 279 N.E.2d 53, contends that the failure to allege that the control, acquired by the defendant over the property in question, was “unauthorized,” or obtained by “deception” or “threat” renders the information invalid. In People v. Stewart, this court, under a similar set of circumstances, held that an indictment was fatally defective, stating:

“It is held to be elementary law that a criminal indictment must aUege that the defendant committed a crime, just as valid pleadings in civil cases must state a cause of action; and that an indictment for a criminal offense must be framed upon the statute and this fact must definitely appear on the face of the indictment itself. * * * Defendant’s indictment * * * merely charges that the defendant obtained control over the property of another intending to deprive him permanently of its use or benefit. This in itself is not a crime, for the language used permits the possibility that the owner could have voluntarily parted with control by gift, by purchase or by some other legal means. ” * , *.
* *■ 5 Under such circumstances, i.e., in the absence of an accusation charging defendant with a violation of the criminal law, the indictment is void on its face, the trial court has no jurisdiction or authority to convict, and the defendant cannot by waiver or consent confer such jurisdiction or authority.” (3 Ill.App.3d 699, 701-02, 279 N.E.2d 53, 54.)

A contrary conclusion was reached by the First District Appellate Court in People v. Wade, 131 Ill.App.2d 415, 264 N.E.2d 898. Therein the court stated:

“The State asserts that the trend today is to be concerned more with the substantive rights of the accused and less with rigid technicalities, especially those dealing with pleading, and that the complaints here adequately informed the defendants of the nature and elements of the offense charged * * *
# # *
We conclude that the complaint herein did state the offense of theft in compliance with Chapter 38, section 16 — 1(a)(1), sufficiently for defendants to know the nature and elements of the offense and to be able to prepare their defense. Here, the failure to include the word “unauthorized,” while not desirable, was not a substantial defect and was not a necessary element so as to render the complaint fatally defective.” (131 Ill.App.2d 415, 418, 264 N.E.2d 898, 901.)

See People v. Geary, 8 Ill.App.3d 633, 291 N.E.2d 13.

Since the rendition of Stewart and Wade, the supreme court has decided a number of analogous cases. In People v. Williams, 52 Ill.2d 455, 288 N.E.2d 406, the supreme court held the failure of an indictment for attempted aggravated kidnapping to allege that the confinement of a chüd under 13 years has been without the consent of its parents or guardian did not render the indictment fatally defective.

In People v. Harvey, 53 Ill.2d 585, 294 N.E.2d 269, the supreme court rejected the defendants’ contention that the indictment charging them with the offense of aggravated battery was void for failure to allege that the battery was committed “without legal justification.” The court, relying extensively on People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697, held that,

“The statute defining battery (Ill. Rev. Stat. 1969, ch. 38, par. 12— 3) contains all the elements necessary to constitute this offense, including the lack of lawful justification. (People v. Grieco, 44 Ill.2d 407, 410, 255 N.E.2d 897.) * * 8 [and, therefore] the defendants cannot complain that they were not explicitly informed that the offense charged was committed without lawful justification.” (53 Ill.2d 585, 589, 294 N.E.2d 269.)

Similarly, in People v. Gallo, 54 I11.2d 343, 297 N.E.2d 569, the supreme court rejected the defendant’s contention that an indictment charging him with the offense of intimidation was inadequate for failure to allege that his conduct was “without legal justification.” Therein, the court stated:

“The doubts that previously existed as to the necessity of alleging in an indictment that an act was done ‘without lawful authority’ were resolved in People v. Harvey (1973), 53 Ill.2d 585, 294 N.E.2d 269, and the defendant’s contention is denied.” (54 Ill.2d 343, 352, 297 N.E.2d 569, 574.)

See also People v. Wallace, 57 Ill.2d 285, 312 N.E.2d 263; People v. Woodward, 55 Ill.2d 134, 302 N.E.2d 62.

The foregoing supreme court decisions prompted this Court, in People v. White, 22 Ill.App.3d 206, 317 N.E.2d 273, to recognize that;

“* * * ‘Legal justification’ and ‘authority,’ as involved in Harvey, Woodward, and Gallo, and ‘consent’ as involved in this appeal, are all matters of exoneration or defense.
Under these principles, defendant’s position that the complaint charging him with arson is void for failure to allege want of consent is untenable.” (22 Ill.App.3d 206, 210, 317 N.E.2d 273, 275.)

In accordance with our conclusion in White, and in adherence with the supreme court decisions reviewed herein, we conclude that our holding in People v. Stewart, 3 Ill.App.3d 699, 279 N.E.2d 53, is not here applicable. Consequently, we adopt the position espoused by the court in People v. Wade, 131 Ill.App.2d 415, 264 N.E.2d 898, and followed by this court in People v. Hayes, 133 Ill.App.2d 885, 272 N.E.2d 423. Having thus decided, we hold that the information in the instant case, which charged the defendant with “the offense of Theft,” was not fatally defective for its failure to allege that defendant’s acquisition of control over property in question was “unauthorized.”

Nevertheless, the State, not the defendant, has the burden to prove the defendant’s exercise of “unauthorized” control over the victim’s property, as well as all other elements of the offense of theft, beyond a reasonable doubt. (People v. Stallcup, 10 Ill.App.3d 153, 294 N.E.2d 21.) This distinction is of considerable importance, especially in the instant case where defendant alleges, in his only other contention, that the State failed to establish every essential element of theft beyond a reasonable doubt. The defendant bases this contention on the State’s failure to prove, (1) that the lightning rod and wire in question were owned by Randall Doty as alleged in the information, and (2) that the defendant’s acquisition of said items was unauthorized.

While it is true that proof beyond a reasonable doubt that property was ■ taken without authorization is a part of the corpus delicti of the offense of theft, it is equally true that such element is not necessarily required to be established by direct evidence. Circumstantial evidence, which is legal evidence, may be resorted to for the pmpose of proving the- corpus delicti as well as for the purpose of connecting a person with the crime. (See People v. Hansen, 28 Ill.2d 322, 192 N.E.2d 359, cert. denied, 376 U.S. 910; People v. Ida, 14 Ill.App.3d 407, 302 N.E.2d 713.) Our supreme court discussed the quantum of circumstantial evidence necessary to support a conviction in People v. Bernette, 30 Ill.2d 359, 197 N.E.2d 436. Therein the court stated;

“[A] conviction may be sustained upon circumstantial evidence as well as direct evidence, (People v. Russell, 17 Ill.2d 328, 161 N.E.2d 309,) it being necessary only that the proof of circumstances must be of a conclusive nature and tendency leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. (People v. Magnafichi, 9 Ill.2d 169, 137 N.E.2d 256; People v. Grizzel, 382 Ill. 11, 46 N.E.2d 78.) The jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances relied upon to establish guilty, but it is sufficient if all the evidence, taken together, satisfies the jury beyond a reasonable doubt of the accused’s guilt.” (30 Ill.2d 359, 367, 197 N.E.2d 436, 441.)

The foregoing was quoted and relied upon in People v. Marino, 44 Ill.2d 562, 256 N.E.2d 770. See also People v. Holt, 7 Ill.App.3d 646, 288 N.E.2d 245; People v. Lenker, 6 Ill.App.3d 335, 285 N.E.2d 807.

Where the circumstantial evidence is so strong and convincing in character as to satisfy the jury of guilt beyond a reasonable doubt, its verdict must be sustained (People v. Robinson, 14 Ill.2d 325, 153 N.E.2d 65; People v. Wilson, 387 Ill. 563, 56 N.E.2d 630), it is only where a cOnviction rests upon circumstantial evidence which raises little more than a suspicion against the accused and leaves a grave doubt of guilt that a court of review is justified in disturbing a jury verdict. (People v. Lenker, 6 Ill.App.3d 335, 285 N.E.2d 807; People v. Lacey, 93 Ill.App.2d 430, 235 N.E.2d 849.

In the instant case the State called five witnesses. With the exception of Sherman Suits, a deputy sheriff, each of these witnesses referred to the farm in question as the Randall Doty farm. Sherman Suits testified that he “found out” the day after alleged offense that the farm “belonged to Randall Doty.” Two of the witnesses testified that Randall Doty owned the farm in question, and a third witness, Glen Hobbs, testified that he rented that farm from Randall Doty. The defendant-made no. objection to these statements, at the trial or in his post-trial motion, and did not offer any evidence contradicting Randall Doty’s right of possession or ownership of the property. In People v. Trefonas, 9 Ill.2d 92, 139 N.E.2d 817, our supreme court, after reviewing the evidence in a similar manner, stated,

“Special ownership or interest in or possession of property is sufficient to prove ownership as against a party charged with larceny, [citations omitted] especially where there is no proof to the contrary. People v. Leggio, 329 Ill. 514; People v. Gordon, 5 Ill.2d 91.” (9 Ill.2d 92, 99, 139 N.E.2d 817, 820.)

Accordingly, we hold that the State in the instant case proffered sufficient evidence to establish ownership of the farm in question in someone other than the defendant, in particular in Randall Doty. Moreover, we find the defendant’s argument that Randall Doty’s ownership in the farm is insufficient to infer RandaU Doty’s ownership in the lightning rods and copper wires which were affixed to his farm house, untenable.

Ultimately, our review of the record reveals sufficient evidence from which the jury could find that the lightning rod and copper wire found in defendant’s truck, which the defendant was driving on a gravel road leading from the Doty farm at approximately 7:30 P.M. on October 25, 1973, were removed from the Doty farm house. While the common nature of these items may have prevented the State’s witnesses from stating unequivocally that the items found in the defendant’s possession could not have been procured elsewhere, the circumstances attending the defendant’s apprehension, the evidence that similar copper wire had recently been removed from the Doty farm, and the testimony that the fresh cut on the wire at the edge of Doty’s farm house resembled the fresh cut on the wire found in the defendant’s truck were sufficiently conclusive to establish that the defendant obtained these items from the Randall Doty farm. When the inferences arising from the foregoing aspects of the instant case are considered in conjunction with the inferences arising from the clandestine manner in which the defendant attempted to obtain control over the victim’s property and the fact that the victim, Randall Doty, signed the information charging the defendant with the offense of “Theft,” there is sufficient evidence from which the jury was justified in finding, beyond a reasonable doubt, that the defendant’s acquisition was without authorization. Hence, we find the defendant’s contention that he was not proven guilty beyond a reasonable doubt without merit.

Having found defendant’s only allegations of error without merit, we affirm the judgment of conviction entered against the defendant for the offense of theft.

Judgment affirmed.

GREBS and CARTER,. JJ., concur.


author: Mr. JUSTICE CREBS

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steven Scott Carroll, Defendant-Appellant.
    (Nos. 73-378, 73-409 cons.;
    Fifth District
    December 3, 1974.
    Robert Farrell, of Mt. Vernon, and Lynn Sara Frackman, of Chicago, both of State Appellate Defender’s Office, for appellant.
    Robert J. Neely, State’s Attorney, of Metropolis (Guy Lahr, III, Assistant State’s Attorney, of counsel, and Darrell L. Conley, legal researcher), for the People.
   Mr. JUSTICE CREBS

delivered the opinion of the court;

Defendant, Steven Scott Carroll, was indicted by the Massac County grand jury on March 8, 1973, charging him with criminal trespass to a motor vehicle and escape. At the arraignment on May 8, 1973, a third count charging defendant with unlawful use of weapons was added by information. Pursuant to plea negotiations the charge of escape was dropped and the defendant plead guilty to the other two charges. On June 15, 1973, after a sentencing hearing, the defendant was sentenced to 1 year less 1 day on each charge with the sentence to be served concurrently.

The same defendant, Steven Scott Carroll, on June 6, 1973, was indicted by the grand jury of Massac County charging him with two counts of escape and with one count of aiding an escape. On September 11,1973, pursuant to plea negotiations the defendant plead guilty to one charge of escape, the other charges were dismissed. He was sentenced to a term of from 1 to 3 years. The defendant has appealed the convictions in each case from the Circuit Court of Massac County and the cases have been consolidated for opinion.

The primary thrust of the appeal in each case is that the trial court failed to warn the defendant of the possibility of consecutive sentences before accepting the pleas of guilty in violation of Supreme Court Rule 402(a)(2) (Ill. Rev. Stat. (1973), ch. 110A, par. 402(a)(2)). The record does not reveal that the defendant was admonished as to the possibility of consecutive sentences.

We note that each case involved negotiated pleas. We have previously considered this problem in People v. Back, 18 Ill.App.3d 746, 310 N.E.2d 421. There we held that the failure to inform the guilty pleading defendant of the possibility of consecutive sentences, standing alone did not constitute reversible error where the defendant entered a negotiated plea. The defendant knew at the time he entered his guilty plea what the sentence would be and that it would not involve consecutive sentences. We adhere to our decision in People v. Back, supra, and find that the failure to admonish die defendant of the possibility of consecutive sentences in the two cases before us does not constitute reversible error.

The judgment of the Circuit Court of Massac County in each case is therefore affirmed.

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


author: Mr. JUSTICE BURKE

text:
    Irving Klehr et al., Plaintiffs-Appellants, v. Zoning Board of Appeals of The Village of Skokie, Defendant-Appellee.
    (No. 59286;
    First District (1st Division)
    November 18, 1974.

      Moltz & Wexler, of Chicago (Leon C. Wexler, of counsel), for appellants.
    Harvey Schwartz, of Skokie (Gilbert Gordon, of counsel), for appellee.
   Mr. JUSTICE BURKE

delivered the opinion of the court:

Irving and Alice Klehr filed a complaint in the circuit court of Cook County for administrative review of a determination by the Zoning Board of Appeals of the Village of Skokie denying a variation to allow construction of a single-family residence on plaintiffs’ lot which has a 35-foot frontage in an area wherein the required frontage is 40 feet. The court found that the Board’s decision to deny a variation was not arbitrary, unreasonable or capricious and did not violate the constitutional rights of the plaintiffs. The court further held that the relevant portions of the Skokie ordinance which prohibited the plaintiffs from erecting a dwelling unit on a lot with a 35-foot frontage were not unconstitutional.

The lot (recorded as Lot 214), located at 8306 North Karlov Avenue in Skokie, has a frontage of 35 feet on Karlov Avenue and a depth of 124 feet to a public alley on the west. Lot 214 is approximately 4346 feet square, which is less than the 4800-square-foot requirement of the Skokie zoning ordinance. Lot 214 is adjoined to the north by a lot (containing a residence) with a 55-foot frontage (recorded as Lot 215), and to the south by a lot (containing a residence) with a 45-foot frontage. The south lot is on the northwest corner of Karlov Avenue and Madison Street.

In 1953, plaintiffs purchased Lots 214 and 215 as one parcel from Mr. and Mrs. Ralph Scheffield. The record indicates that the plaintiffs and their predecessors in title held the two recorded lots in common ownership and used the entire parcel as a single family residence. Shrubbery borders Lot 214 on the north and east sides, while a garage built by the Scheffields is located on the western portion of the lot. Both the Klehrs and the Scheffields used the garage for their automobiles and for storage and maintained the property by attending to the lawn and shrubbery.

In 1968, the plaintiffs sold their home located on Lot 215, separate and apart from Lot 214, to Mr. and Mrs. Henry Camnitzer. The record indicates that the Mitchell Real Estate Company, on behalf of the plaintiffs, listed the home and the adjoining lot separately. Mr. Camnitzer was given a first right of refusal on Lot 214, but declined to purchase the property at the offered price of $12,000. The Kulwin Construction Company then agreed to purchase Lot 214 on the condition that a variance be obtained from the Skokie Zoning Board of Appeals. Plaintiffs proceeded to petition the Board for permission to build a single-family dwelling unit on their undersized lot.

At the outset of the testimony before the Board, plaintiffs contended that the matter was before the Board as a request to reinstate a previous variance granted to the property in September of 1965. The 1965 variance provided that a house was to be moved to Lot 214 from a parcel which consisted of three recorded lots located in the immediate vicinity. The 1965 plan contemplated two homes on a total of four recorded lots. However, the transactions necessaiy to accomplish the plan were not executed and, pursuant to the Skokie zoning ordinance, the variance died after a lapse of 18 months. The Board’s position was that plaintiffs’ request for a variance in 1972 was an entirely new case, differing from the circumstances which prompted the Board to grant a variance in 1965.

Testimony was heard by the Board from witnesses on both sides of the issue. Mr. Jack Bieder, a man with 10 years’ experience in the real estate business and part owner of the Kulwin Construction Company, testified for the plaintiffs. He stated that the highest and best use of the subject parcel was a single-family residence. Evidence was given that at least two other similarly narrow lots in the neighborhood contained single-family residences. It was Mr. Bieder’s opinion that the value of Lot 214 was $12,000 if it could be used for a single-family dwelling; otherwise, it was valueless.

Neighborhood opposition to the variance was voiced by several witnesses. Ninety signatures were submitted to the Board in a petition which opposed the variance on grounds that it would tend to congest the area and set a precedent for other similarly narrow lots in the area held in common ownership.

Mr. Henry Camnitzer, the present owner of the Klehr home, testified to the circumstances and events which led to his purchase of the property recorded as Lot 215. Although he declined to purchase the adjoining Lot 214 at the price of $12,000, Camnitzer stated that he was still interested in purchasing the lot at a different price. Through an agreement with the Klehrs, Mr. Camnitzer maintains Lot 214, attending to the lawn and shrubbery.

After all the testimony was heard, the Board denied the plaintiffs’ petition for a variance. The Board found that the plight of the plaintiffs was not unique and that their hardship was created by their own doing. The Board further found that a denial was warranted by provisions of the 1946 Skokie zoning ordinance which state that undersized lots of record held in common ownership after 1946 would not be the subject of variation. It is from these findings of the Board, which the circuit court affirmed, that plaintiffs prosecute this appeal. .

Plaintiffs’ claim is not supported by the prevailing applicable law. The facts in Weber v. Village of Skokie, 92 Ill.App.2d 355, 235 N.E.2d 406 closely resemble those in the instant case. The plaintiffs in Weber purchased a conforming parcel of land containing three lots of record in 1951. In 1964, the Webers conveyed two of those lots and retained the third. The remaining lot was substandard to the minimum lot size requirements provided by the Skokie zoning ordinance. When the Webers petitioned the Skokie Zoning Board of Appeals for a variance, the Board denied their petition. On appeal, this court upheld the Board’s decision.

We held in Weber that a purchaser does not have an irrevocable right by virtue of a plat’s recordation pursuant to the Plat Act (Ill. Rev. Stat 1973, ch. 109, par. 1 et seq.) to evade the applicable zoning law by establishing a nonconforming use out of the subject lot. “The fact that the property was platted prior to the enactment of the zoning ordinance does not give the purchaser any right to develop what have since become substandard lots.” Citizens Bank & Trust Co. v. City of Park Ridge, 5 Ill.App.3d 77, 81, 282 N.E.2d 751; see Ganley v. City of Chicago, 18 Ill.App.3d 248, 309 N.E.2d 653.

Because the plaintiffs in the Weber case had used the three lots as one parcel for 13 years, we found no indication that reliance was placed on plat recordations. Since the Webers purchased the entire three-lot parcel in 1951, we found that they knew of the lot size requirements provided by the same 1946 zoning ordinance discussed in the instant case. Any financial disadvantage resulting to the Webers was due to their failure to convey all three lots as one parcel.

Similarly, the plaintiffs in the case at bar purchased Lots 214 and 215 in 1953, 7 years subsequent to the enactment of the Skokie zoning ordinance. The very fact that Lot 214 was granted a variance in 1965 as part of an overall plan indicates plaintiffs’ knowledge of the substandard dimensions of their lot. It appears that for 15 years Lot 214 was used as a side yard for the adjoining Lot 215 whereon the family residence was located. The Klehrs utilized a garage located on Lot 214 for their automobile and the yard for recreational purposes. Thus, the circumstances attendant to the plaintiffs’ ownership of the two lots do not indicate reliance upon plat recordations. With knowledge of the zoning restrictions, the Klehrs retained their undersized side lot at their own risk. As in the Weber case, we are inclined to believe that any financial disadvantage which might accrue to the plaintiffs is self-imposed.

Any applicant seeking a variation from an authorized zoning board of appeals has a burden of proving three prerequisites. The Illinois statute provides:

“In its consideration of the standards of practical difficulties or particular hardship, the board of appeals shall require evidence that (1) the property in question cannot yield a reasonable return if permitted to be used only under the conditions allowed by the regulations in that zone; and (2) the plight of the owner is due to unique circumstances; and (3) the variation, if granted, will not alter the essential character of the locality. A variation shall be permitted only if the evidence, in the judgment of the board of appeals, sustains each of the 3 conditions enumerated.” Ill. Rev. Stat. 1973, ch. 24, par. 11 — 13—4.

The record is insufficient to satisfy the burden placed upon the plaintiffs. "A particular hardship’ does not mean one that is self-imposed, or that a piece of property is better adapted for a forbidden use than for the one which is permitted, or that a variation would be to the owner’s profit or advantage or convenience.” (River Forest State Bank & Trust Co. v. Zoning Board of Appeals, 34 Ill.App.2d 412, 419, 181 N.E.2d 1.) If plaintiffs are unable to reaHze a reasonable return for the lot, it is not due to the burdensome effect of the zoning ordinance; it is due to their failure to convey both lots as one parcel. Lot 214 is not totally valueless. Testimony was given by Mr. Camnitzer, an adjoining landowner, that he would be willing to purchase the lot at a price less than the current offer. Nor do we find it tenable that plaintiffs expected a variance in 1972 because of a variance granted to Lot 214 in 1965. Vastly different circumstances surrounded each instance and plaintiffs’ reliance, if any, could not be said to be justified. The Board’s finding, therefore, that the plaintiffs’ plight is not unique shaU remain undisturbed. Asbach v. Zoning Board of Appeals, 133 Ill.App.2d 22, 270 N.E.2d 535; Szeliga v. City of Des Plaines, 4 Ill.App.3d 257, 280 N.E.2d 767.

Absent proof that plaintiffs have suffered special damage from an application of the 1946 Skokie zoning ordinance, the provisions for minimum lot size cannot be found to be confiscatory or deprive plaintiffs of their property without due process of law. (Jacobson v. City of Evanston, 10 Ill.2d 61, 139 N.E.2d 205.) Even though plaintiffs’ property might be worth more as a single-family residence, this fact alone does not invalidate the zoning ordinance, nor make its application to plaintiffs’ property an “unfair taking.” Minimum lot area requirements may validly restrict a more valuable use of property even if the subject lot is owned or has been owned in common with a contiguous lot. Minimum lot area restrictions will only be declared invalid if arbitrary or a clear abuse of power is shown. Plaintiffs have not sustained the burden of overcoming the presumption of the validity of the ordinance. Galpin v. Village of River Forest, 26 Ill.2d 515, 187 N.E.2d 233; Reitman v. Village of River Forest, 9 Ill.2d 448, 137 N.E.2d 801; Citizens Bank & Trust Co. v. City of Park Ridge, 5 Ill.App.3d 77, 282 N.E.2d 751.

Plaintiffs further contend that portions of Skokie’s zoning ordinance which provide that buildable lots of record effective in 1946 may be subject to variance except for lots held in common ownership with a contiguous lot violate their equal protection rights as guaranteed by the state and federal constitutions. Plaintiffs argue that because the ordinance is based upon ownership of contiguous lots rather than usuage of contiguous lots, it is therefore defective. The relevant portions of the ordinance provide:

“5 b. The Board of Appeals shall order the Director of Building to issue a permit for erecting a building for any permitted residential use in the district on the subject lot upon compliance with all of the foregoing provisions and all other applicable provisions of this ordinance, with each required side yard reduced to not less than ten percent of the width of the lot, if all of the following requirements are met:
(1) The subject lot:
(a) is not adjoining and contiguous to a vacant lot on either side held under common ownership at any time after the year 1946; or
(b) is not contiguous to an improved lot of record which has one foot or more of an adjoining side yard in excess of the minimum required side yard for the district in which the building or structure is located, which additional side yard land could physically be added to the applicant’s lot to increase its width or area; or that the owners of the adjoining lots refuse to sell any portion of land that could be added to the applicant’s lot to increase the width thereof without reducing the required side yards of the adjoining lots and which additional land the applicant would be willing to purchase; and
(c) is not owned and has not been owned directly or indirectly or by a nominee of any person, firm, corporation or trust, or by an officer, shareholder, director, partner, beneficiary, agent or person related by blood or marriage or by any predecessors in title who also held or holds any right, title or interest in or to either one or both of the contiguous lots after the year 1946 to the date of application for a building permit.
(2) The contiguous lots are not owned and have not been owned directly or indirectly or by a nominee of any person, firm, corporation or trust, or by any officer, shareholder, director, partner, beneficiary, agent or person related by blood or marriage or by any predecessors in title, who also held or holds any right, title or interest, directly or indirectly, in the applicant’s lot after the year 1946 to the date of application for a building permit.”
Amended Zoning Ordinance of the Village of Skokie, 1965, Article XIII, Section C, subsection 5b.

Plaintiffs’ claim is without merit. In order to overcome the presumption in favor of the validity of a zoning ordinance, it must be proven with clear and convincing evidence that, as applied to plaintiffs, the ordinance is arbitrary or discriminatory and bears no substantial relation to the public health, morals, safety and welfare. (Bennett v. City of Chicago, 24 Ill.2d 270, 181 N.E.2d 96.) It is not enough to show that the property can be utilized at a greater profit. (Reitman v. Village of River Forest, 9 Ill.2d 448, 137 N.E.2d 801.) “Where a legitimate dispute may exist as to the desirability of the classification imposed, it is clear that the courts should not intervene to substitute their judgment for that of the duly constituted legislative body.” (Exchange National Bank v. County of Cook, 25 Ill.2d 434, 185 N.E.2d 250.) Whenever it appears that the public welfare is promoted by a legitimate exercise of a municipality’s police power, the restrictive zoning ordinance in question will stand regardless of the fact that individuals may suffer an invasion of their liberty of action and ownership over property. (Forbes v. Hubbard, 348 Ill. 166, 180 N.E. 767.) Plaintiffs have not met their burden of proof. They have not demonstrated how the ordinance creates an invidious classification or abridges a constitutionally guaranteed fundamental right. Cases in this jurisdiction, as well as in other jurisdictions, have upheld ordinance provisions similar to those here in question. Mitchell v. Zoning Board of Appeals, 125 Ill.App.2d 1, 260 N.E.2d 454; Citizens Bank & Trust Co. v. City of Park Ridge, 5 Ill.App.3d 77, 282 N.E.2d 751; Ganley v. City of Chicago, 18 Ill.App.3d 248, 309 N.E.2d 653; Clemons v. City of Los Angeles (1950), 36 Cal. 2d 95, 222 P.2d 439; Howland v. Acting Superintendent of Buildings (1951), 328 Mass. 155, 102 N.E.2d 423.

Plaintiffs cite Ziman v. Village of Glencoe, 1 Ill.App.3d 912, 275 N.E.2d 168, in support of their general position. The Ziman decision involves an ordinance regulating side-yard requirements and has little bearing to the facts in the instant case. The Ziman case cites with approval our holding in Weber v. Village of Skokie, 92 Ill.App.2d 355, 235 N.E.2d 406.

We conclude that the Board’s denial of plaintiffs’ petition for a variance was not arbitrary or discriminatory. The relevant portions of the Skokie zoning ordinance do not operate as a confiscatory taking nor as a denial of plaintiffs’ equal protection rights under the law. The Village Board’s decision was a legitimate exercise of the police power in promoting a well balanced neighborhood consistent with the requirements of its zoning ordinance. Therefore the judgment is affirmed.

Judgment affirmed.

GOLDBERG and HALLETT, JJ., concur.


author: Mr. PRESIDING JUSTICE EGAN

text:
      In re Estate of Gus Vardalos, Deceased—(Betty Bagrowe, Adm’r, Petitioner-Appellant, v. Alex Giannoulios, Respondent-Appellee.)
    (No. 58113;
    First District (1st Division)
    November 18, 1974.

      George C. Rantis, of Chicago, for appellant.
    Theodore J. Herst, of Chicago, for appellee.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

Betty V. Bagrowe, the administrator of the estate of Gus Vardalos, filed a citation to discover assets requiring the appearance of Alex Giannoulios, the respondent. After a hearing, the court found that the decedent had made a gift to the respondent of $7757.61 representing the amount of money in a savings account in the decedent’s name. The administrator-petitioner appeals from that finding.

The decedent had been a patient for many years of Dr. Mayo M. Andelson, a certified internist with a sub-specialty in cardiology. Dr. Andelson was called to the Augustana Hospital where the decedent had been admitted in an emergency. His diagnosis was that the decedent had suffered small strokes which resulted in a chronic brain syndrome, which means repeated injury to the brain with loss of function. The decedent was disoriented, agitated, remote and removed. He examined the decedent every day for approximately 3 months and complications subsequently developed. He testified that in laymen’s terms the decedent was grossly senile and the functions of his higher brain centers involving his ability to be aware of what was going on were grossly impaired so that one was unable to communicate with him or to have any contact with him. It was Dr. Andelson’s opinion that from November 8 until his death in February the decedent was mentally incompetent. When he saw the decedent on November 8, he said, “Hello, Gus, how are you?” and the decedent appeared to know him, but the doctor could not remember if he made an intelligent response.

The petitioner, Betty Bagrowe, is the decedent’s daughter. On November 8, 1971, she was on her honeymoon and returned to the city on November 12. She first saw her father at Augustana Hospital on November 15. On that date she saw her cousin, the respondent, and asked him why she or her mother-in-law were not notified. She testified that he told her they wanted to put her father in a nursing home but he did not want to do anything. He asked her if she wanted to “take over” and she said that she would.

She did not see her father every day, but if she did not see him, she would call to ascertain his condition by talking to the nurse on his floor. She never spoke to him over the phone because he was unable to speak. She did not visit him on Thanksgiving or Christmas.

Steve Vardalos, the decedent’s brother, testified for the respondent that he and the decedent used to speak by phone every week. They visited each other once or twice a year. His nephew, the respondent, took him to the hospital to see his brother every day for two weeks. The decedent asked if the petitioner ever visited the hospital. Vardalos never saw the petitioner at the hospital. The decedent told him, in the presence of the respondent, “I have some money; I don’t know the amount. I want to give it to Alex (the respondent) by promising that if I ever get out of this hospital I want the money back or else he can have it.” The decedent told him if he got well he could not live with his daughter because the apartment was too small.

During Steve Vardalos’ two-week visit, the decedent acted “all right” and knew him. Based on Iris “lifetime experiences” with his brother, in his opinion, the decedent did not act “too different” and he “didn’t-see nothing [sic] wrong with him.”

Catherine Horvath testified for the respondent that she had known the decedent for about 30 years. For the last 10 years she had visited or called him two or three times a week. She used to go to his home for dinner and take him for automobile rides. She was the one he called when he got sick, and she visited him daily in the hospital from November 8, 1971, to February 10, 1972. The decedent’s brother, Steve, and the respondent were the only family visitors she saw at the hospital. She heard the decedent say that he wanted Alex to get the papers from the bank so that Alex could get authorization to transfer the money to Alex’s name. She was present on November 12 when the decedent signed a bank slip transferring the account from his name to the respondent’s. In her opinion, his mental condition on that day was normal and he knew her. The day after the decedent signed the paper, she was alone with him. He told her that Alex was like a son to him and that he could rely on Alex if he had a problem. She further testified that there were times when the decedent was confused. She would visit him about 3 hours every day and never saw the petitioner.

The respondent testified that the decedent was his mother’s brother whom he first met in 1960. when the respondent came to this country from Greece. He lived with the decedent for 7 years. He transferred the funds to an account in his name the day he received the transfer slip from his uncle.

The legal posture of the case before us is a confusing one. The petitioner did not argue in the trial court that the elements of a gift had not been proved. Her sole contention was that the decedent was “not of Sound mind to make any gift.” The respondent argued that the decedent had made a gift, but he did not specify whether it was inter vivos or causa mortis. We are unable to tell from the trial court’s remarks what specific finding it was making with respect to the nature of the gift or donative capacity. The brief filed by the petitioner contends that no gift inter vivos was proved. The respondent’s brief cites no authority to support a finding of gift inter vivos but he argues that the evidence establishes a gift causa mortis. No reply was filed by the petitioner, nor did she in oral argument submit any authority on the issue of gift causa mortis. We conclude, therefore, from the briefs and the oral arguments that it is conceded that the evidence does not establish a gift inter vivos. The respondent has not argued that the petitioner has waived the right to contest the sufficiency of the evidence to establish a gift causa moitis by her failure to raise the question in the trial court or in this court. That being so, we will address ourselves to that question.

A gift causa mortis is effected only if the following conditions are met: The donor must be stricken with some disorder which makes death imminent (Taylor v. Harmison, 79 Ill.App. 380, affirmed, 179 Ill. 137, 53 N.E. 584); death of the donor must ensue as a result of the disorder existing at the time the gift was made without any intervening perfect recovery (In re Estate of Brokaw, 339 Ill.App. 353, 90 N.E.2d 300); the gift must have been made to take effect only in the event of the donor’s death by his existing disorder (In re Estate of Meyer, 317 Ill.App. 96, 45 N.E .2d 495); and there must have been an actual delivery of the subject of the donation to the donee. Williams v. Chamberlain, 165 Ill. 210, 46 N.E. 250.

The burden of proving a gift causa mortis is on the alleged donee, and the general rule requires that it be proved by clear and convincing evidence (In re Estate of Palmer, 326 Ill.App. 254, 61 N.E.2d 289). However,' less positive and unequivocal proof is required to establish a gift causa mortis to a relative than to persons not related to the donor, and slight evidence will suffice where there is no evidence of fraud or undue influence. (First National Bank v. O’Byrne, 17 Ill.App. 473.) In this case, fraud or undue influence were not pleaded or argued.

Whether the respondent sustained his burden of proof was for the trial court to determine, and we may not reverse his holding unless it can be said that it is manifestly against the weight of the evidence. (Schulenburg v. Signatrol, Inc., 37 Ill.2d 352, 226 N.E.2d 624.) The fact-finder could reasonably infer that the decedent was suffering from a disorder which caused his death and that he was aware of the gravity of bis condition. The factfinder could also conclude from the testimony of two apparently disinterested witnesses, Steve Vardalos and Mrs. Horvath, that the decedent made a delivery of the property by giving the respondent the transfer slip and that the gift was subject to revocation only upon the occurrence of a condition subsequent: his recovery. It thus appears that all of the elements of a gift causa mortis had been sufficiently proved.

Finally, the petitioner contends that the respondent has failed to prove the mental competency of the decedent but has cited no cases in support of her argument. The petitioner, we believe, misconceives the burden of proof. The same degree of mental capacity is required to make a gift causa mortis as is required to make a will; if a person is competent to dispose of property by will, he may effectually dispose of it by gift causa mortis. (38 C.J.S. Gifts §76 (1943).) As in the case of a will, the test of mental capacity to make a gift is whether at the time of the transaction the donor has the ability to understand its nature and effect. (38 Am.Jur.2d Gifts § 12 (1968).) The law presumes every man to be sane and of sound mind until the contrary is proved, and the burden rests upon the party who asserts it to prove lack of testamentary capacity. (Shevlin v. Jackson, 5 Ill.2d 43, 47, 124 N.E.2d 895.) Sickness and infirmity alone do not show lack of testamentary capacity, nor does an unreasonable prejudice against a natural object of one’s bounty necessarily do so. Sloger v. Sloger, 26 Ill.2d 366, 369-70, 186 N.E.2d 288.

What motivated the decedent to give the property to his nephew rather than his daughter we, as a reviewing court, may only speculate about. The controlling fact is that the trial court heard evidence from which he could infer that the gift stemmed from avuncular affection. The respondent had been brought from Greece by his uncle and had lived with him for 7 years. It was he who visited the decedent everyday in the hospital while his daughter, the factfinder could conclude, never visited him. By her own testimony she did not visit him on Thanksgiving or Christmas.

The court heard the expert witness who testified for the petitioner and the two lay witnesses who testified for the respondent. What weight the court was required to give the testimony of the physician is answered in Tyler v. Tyler, 401 Ill. 435, 440-41, 82 N.E.2d 346:

“The rule is that a person who is not an expert may give his opinion concerning the mental capacity of a testator if it appears that such witness has an acquaintance with the person whose competency is in question and relates facts and circumstances which afford reasonable ground for determining the soundness or unsoundness of mind of such person, and that the value of the opinion so expressed is such as the capacity, intelligence and observation of the witness who forms it may warrant. (Ergang v. Anderson, 378 Ill. 312.) While physicians are better qualified to testify to a diseased condition than are laymen, their testimony upon the subject of the mental capacity of an individual whom they have been privileged to observe is not entitled to any greater weight than that of laymen. (Nadenik v. Nadenik, 372 Ill. 408.)”

Obviously, the trial court believed the lay witnesses, and it is not for us to say that it should not have done so. We judge, therefore, that the finding of the trial court that the petitioner had failed to rebut the presumption of donative capacity on the part of the decedent is not against the manifest weight of the evidence. The judgment of the circuit court is affirmed.

Judgment affirmed.

BURKE and GOLDBERG, JJ., concur.


author: Mr. JUSTICE GUILD

text:
    Alvin W. Krug, Plaintiff-Appellee, v. William M. Machen et al., Defendants-Appellees.—(William Dieter et al., Third-Party Plaintiffs and Third-Party Defendants-Appellants, v. The First National Bank in Amboy, Third-Party Defendant-Appellee.)
    (No. 73-64;
    Second District
    December 18, 1974.

      Reid, Ochsenschlager, Murphy & Hupp, of Aurora, and Nadelhoffer, Hennessey, Dommermuth & Brestal, of Naperville, for appellants.
    Aplington & Kaufman, of La Salle, Edward M. Sullivan, of Amboy, and Gunner, Keller & Magdich, of Dixon, for appellees.
   Mr. JUSTICE GUILD

delivered the opinion of the court:

This action for declaratory judgment was brought by a judgment creditor, Alvin W. Krug, as plaintiff, in the circuit court of Lee County under the provisions of section 57.1 of the Civil Practice Act (Ill. Rev. Stat., ch. 110, par. 57.1). Krug sought to determine the rights and interests of the parties in a parcel of land which had been conveyed by the judgment debtor, Robert D. Clayton, to the third-party defendants, William and Irene Dieter, and subsequently conveyed to defendant William and Mary Machen. Prior to trial the Machens filed a third-party complaint against the Dieters, and the Dieters filed a complaint as third-party plaintiffs against the First National Bank in Amboy, which had recorded the various deeds involved in these transactions.

After a trial on the merits, the trial court, sitting without a jury, found that Krug had a first and prior lien on the property in the amount of his judgment; that the Dieters were liable to indemnify the Machens for their attorney’s fees and for any losses in connection with the lien; and that the bank was not obligated to indemnify the Dieters for any losses in connection with the lien. The Dieters have appealed from this final order of the trial court.

On appeal, none of the parties challenges the trial court’s finding that Krug has a first and prior hen upon the property. The question in this court is who must bear the loss in connection with the lien: the Dieters, the Machens, or the First National Bank in Amboy.

Some time prior to June, 1971, the Dieters contacted Francis Duffy, a real estate broker, in an attempt to purchase a piece of property around Amboy, Illinois. Through Duffy’s efforts, the Dieters found a piece of property owned by the Machens (hereinafter referred to as the Machen property) and began negotiations to purchase the property.

At the same time the Machens, who were interested in acquiring another piece of property, located a piece of property in Amboy which they determined acceptable. The property (hereinafter referred to as the Clayton property) was owned by Claude and Thelma Reinhold and was subject to a contract to purchase by Robert D. Clayton. As the Machens were interested in selling the Machen property and acquiring the Clayton property, the Machens insisted upon a series of transactions which, they believed, would prevent them from recognizing any taxable gain upon the transfer of the Machen property to the Dieters. The scheme involved a purported sale of the Clayton property to the Dieters and subsequent exchange of the Clayton property for the Machen property.

Thus, on June 28, 1971, the Machens and Dieters signed an agreement entitled “Offer to Purchase” which provided that the Dieters would purchase the Machen property for $18,400. The terms of the “Offer to Purchase,” however, contained the following terms:

“Mr. and Mrs. William J. Dieter are to purchase 47 acres from Robert D. Clayton which is located at South West edge of Amboy, Ill. and trade to Mr. and Mrs. William M. Machen for about 40 acres (the Machen property.) Mr. and Mrs. Wilham M. Machen are to pay William Dieter a difference of $9,600.”

The agreement was made contingent upon the signing of supplementary contracts by Clayton for the sale of the Clayton property.

Subsequently, in July, 1971, the Machens and the Dieters entered into a formalized agreement entitled “Articles of Agreement” which merely provided that the Dieters would buy the Machen property for $18,400, $2,000 of which being deposited in escrow at the First National Bank in Amboy. Also in July, 1971, Clayton and the Dieters entered into an agreement entitled “Articles of Agreement” which provided that the Dieters would buy the Clayton property for $28,000 of which $2,000 would be deposited in escrow at the bank and $9,600 would come from William M. Machen.

On August 6, 1971, the Dieters and Machens entered into an agreement, which provided that whereas the Dieters had contracted to purchase the Clayton property, and whereas the Machens were owners of the Machen property, and whereas the Machens had agreed to pay $9,600 of the consideration for the purchase of the Clayton property, that upon the acceptance of title to both of the parcels, the parties would agree to exchange without additional consideration the respective tracts of land.

A warranty deed from Robert Clayton conveying his interest in the Clayton property to the Dieters was signed and dated on September 22, 1971. On September 24, 1971, a judgment by confession was entered against Clayton and in favor of Krug for the amount of $6,812. A memorandum of this judgment was filed with the Lee County recorder of deeds on September 24, 1971.

On September 27, 1971, a closing was held at the First National Bank in Amboy. At the closing were Mr. and Mrs. Machen, Mr. and Mrs. Dieter, Robert Clayton and Claude Reinhold. Warranty deeds from the Reinholds to Clayton for the Clayton property, from the Dieters to the Machens for the Clayton property, and from the Machens to the Dieters for the Machen property were dated on September 27, 1971, the date of closing. Also dated September 27, 1971,were five checks written by William Machen, including one to Robert Clayton in the amount of $9,600. A check written by William Dieter payable to Robert Clayton in the amount of $14,400 was also dated September 27, 1971. The end result of the closing was that the Machens owned the Clayton property and the Dieters owned the Machen property.

After the closing, on September 27, 1971, the First National Bank in Amboy had in its possession all of the warranty deeds relative to this transaction. The bank sent the deeds to be recorded on the day after the closing, September 28, 1971, but they were returned to the bank due to some error in failing to notarize or pay a fee. Subsequently, the bank cashier read in the Lee County Credit Report that a judgment for $6,182 was entered against Mr. Clayton in favor of Krug, Claytons brother-in-law, on a note executed over 8 years before judgment. When the cashier informed the bank’s attorney, Mr. Sullivan, of this fact, Sullivan, after consulting with the Dieter’s attorney, told the cashier not to record the documents. Due to a bank error, however, the deeds were subsequently recorded despite the instructions of Sullivan.

The Dieters contend that ultimate liability for the loss incurred by the lien should be upon the First National Bank in Amboy. The Dieters argue that the bank breached its duty as escrowee for the parties in that it recorded the deeds contrary to the specific instructions of the Dieter’s attorney.

We disagree. Although there was language in the various agreements made by the parties about an escrow agreement, there is no evidence that any party made an agreement with the bank concerning the bank acting as escrowee. The bank did no more than furnish a place for the closing, advance part of the Machen’s purchase price, take a note and mortgage from them, and record the deeds for all the parties. The parties made no provisions for the money received by the bank before closing to be put in escrow and the bank paid no money out contrary to any agreement. Therefore, the findings of the trial court that the bank was not hable to indemnify the parties was not contrary to either the law or the evidence.

The question of whether the Dieters must indemnify the Machens for any loss in connection with the lien on the Clayton property depends upon whether the legal relationship between the Machens and Dieters with reference to the Clayton property was one of principal and agent or one of buyer and seller. If the relationship were one of buyer and seller, then the series of transactions described herein constitute a sale of the Clayton property by Clayton to the Dieters and a subsequent equal exchange of the Clayton property for the Machen property by the Machens and Dieters by warranty deed. Thus, in that case, the Dieters’ warranty deed to Machen would be effective to warrant that no encumbrances were upon the Clayton property. Consequently, the Dieters would be obligated to indemnify the Machens for any loss in connection with the lien. If the relationship were one of principal and agent, then this series of transactions constitute a sale of the Clayton property by Clayton directly to the Machens with the Dieters acting as agent, and a contingent sale of the Machen property by the Machens to the Dieters. Under the principal and agent theory the Dieters’ warranty deed would be merely a matter of form and was ineffective in warranting that the property was free from encumbrances. Consequently, the Dieters as agents would only have to indemnify the Machens if their conduct were not free from negligence.

The trial court made no specific finding of fact or law with regard to this issue of agency. However, it is apparent from the trial court’s order requiring the Dieters to indemnify the Machens that the trial court found either that there was no agency relationship between the parties or that there was an agency relationship but that the Dieters acted negligently.

The issue of whether a relationship of principal and agent exists is a question of fact. (See Yuhas v. Allis-Chalmers Distribution Service Corp. (1973), 12 Ill.App.3d 814, 299 N.E.2d 166.) Thus, we wfil not disturb the findings of the trial court unless they are against the manifest weight of the evidence. See Meyer v. Ranson (1967), 80 Ill.App.2d 175, 224 N.E.2d 293.

After a careful review of the record, we find that a relationship of principal and agent existed between the Machens and Dieters when the Dieters obtained the Clayton property and transferred it to the Machens. Generally, an agent is defined as one who undertakes to manage some affairs of another by his authority, subject to his control and on his account. (Hoffman & Morton Co. v. American Insurance Co. (1962), 35 Ill.App.2d 97, 102, 181 N.E.2d 821; Dean v. Ketter (1946), 328 Ill.App. 206, 210, 65 N.E.2d 572; Equitable Produce & Stock Exchange v. Keyes (1896), 67 Ill.App. 460; Restatement (Second) of Agency § 1 (1958). Thus, the distinguishing characteristics of an agency relationship is the principal’s right to control the agent (see Osborn v. City of Harvey (1973), 16 Ill.App.3d 740, 306 N.E.2d 601) and the agent’s ability to subject the principal to personal liability and to create new rights in his favor. Hoffman & Morton Co. v. American nsurance Co., supra.

In the case before us, the contracts and acts of the parties clearly show that the Dieters were authorized by the Machens to deal with Clayton for the purchase of the property. In their dealings with Clayton the Dieters were subject to the control of the Machens. The Machens themselves had worked out the price of the Clayton property. The Dieters could only enter into the contract to purchase the Clayton property on the terms dictated by the Machens. The Dieters also were under a duty to reconvey the Clayton property to the Machens. Additionally, by signing the Clayton-Dieter articles of agreement containing the provision that the Machens would pay $9600 to Clayton, the Dieters made the Machens personally liable for at least $9600, if not for the whole amount. Such personal liability was expressly acknowledged by the Machens in their August 6th agreement with the Dieters. Also, the Machens paid the $9600 directly to Clayton.

Additionally, the Restatement (Second) of Agency has distinguished an agent from a supplier or seller in the following manner: "One who contracts to acquire property from a third person and convey it to another is the agent of the other only if it is agreed that he is to act primarily for the benefit of the other and not for himself.” Restatement (Second) of Agency § 14K (1958).

In this case the Dieters were acting primarily for the benefit of the Machens in obtaining the property and in conveying it to the Machens. The general belief of the parties was that by attempting to have the Dieters “buy” the Clayton property and then “exchange” it for the Machen property, the Machens would not recognize any taxable gain on these transactions. The Dieters would not gain anything by these maneuverings. They would have still ended up with the Machen property for a price of $18,400 if they had simply bought the Machen property outright. Therefore, the manifest weight of the evidence in this case sustains a finding of an agency relationship existing between the Dieters and the Machens.

However, while we find that the Dieters were the agents of the Machens, the Dieters may still have to indemnify the Machens for any loss suffered in connection with the lien. Although “a principal is subject to a duty to exonerate an agent * * * upon obligations arising from the * * * ownership of * * * things which he is authorized to hold on account of the principal” (Restatement (Second) of Agency § 439.(1958)), “[ujnless otherwise agreed an agent who holds the title to something for the principal is subject to a duty to the principal to use reasonable care in the protection of the title which he so holds * * **.” Restatement (Second) of Agency § 423 (1958).

In this case we find that the manifest weight of the evidence indicates that the Dieters exercised reasonable care in the protection of the title to the property. The contract between the Dieters and Clayton was within the terms prescribed by the Machens and contained provisions for holding part of the payment in escrow with the bank and for making part payment conditional upon the delivery of a good and sufficient warranty deed and a preliminary title report from Chicago Title & Trust Company. As the title to the Clayton property was transferred to the Dieters at the same closing in which the Dieters transferred title to the Machens, the Dieters merely held title just long enough to transfer it to the Machens. Thus, it is also apparent that the Machens took over responsibility for protecting the title at the closing.

Therefore, we find that the order of the trial court requiring the Dieters to indemnify the Machens for any losses incurred because of Krug’s hen is against the manifest weight of the evidence. The Dieters were merely acting as the agents of the Machens in acquiring, holding, and transferring title to the Clayton property. They exercised reasonable care in the conducting of their duties. They are not liable to indemnify the Machens.

The Machens raise tire contention that because the question of agency is raised by the Dieters for the first time in this appeal, this court is precluded from considering the question. We find this contention without merit. The Dieters raised the question of agency in their answer to the Machens’ third-party complaint in the form of an affirmative defense. Although this affirmative defense in the complaint could have been set out more clearly, it was sufficient to give the Machens notice of this defense.

The Dieters also raise a question concerning the pleadings. Our holding in this case makes it unnecessary for us to decide this question for purposes of this appeal.

For the foregoing reasons the trial court’s judgment as to Krug and tire First National Bank in Amboy is affirmed. However, we have found that the trial court’s finding that the Dieters must indemnify the Machens was against the manifest weight of the evidence. Where a cause is tried by a court without a jury and where the parties have had the opportunity to present all their evidence, as in this case, no useful purpose is served by remanding the cause to the trial court for a new trial. (Dayton Scale Co. v. General Market House Co. (1929), 335 Ill. 342, 167 N.E. 100; Cromwell Paper Co. v. Wellman (1959), 23 Ill.App.2d 263, 162 N.E.2d 500; Vallarta v. Lee Optical of Missouri, Inc. (1973), 12 Ill.App.3d 112, 298 N.E.2d 212.) Therefore, pursuant to the appellate court’s power to enter any judgment or order and grant any relief which a case may require under Supreme Court Rule 366 (Ill. Rev. Stat. 1971, ch. 110A, par. 366(a)(5)), the judgment of the trial court against the Dieters and in favor of the Machens is reversed and the cause remanded with directions to enter judgment for the Dieters.

Affirmed in part, reversed in part and remanded with directions,

T. MORAN, P. J., and SEIDENFELD, J., concur.


author: Mr. JUSTICE SEIDENFELD.

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. William H. Stinger, Jr., Defendant-Appellant.
    (No. 73-61;
    Second District
    December 5, 1974.

      Ralph Ruebner and Adam Lutynski, both of State Appellate Defenders Office, of Elgin, for appellant.
    Gerry Dondanville, State’s Attorney, of Geneva (Clarence Wittenstrom, Jr., Assistant State’s Attorney, of counsel), for the People.
   Opinion by

Mr. JUSTICE SEIDENFELD.