text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Hutchins, Defendant-Appellant.
    Gen. No. 53,964.
    First District, First Division.
    July 20, 1970.

      Edward F. Ryan and Kenneth L. Gillis, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony M. Monte-murro, Assistant State’s Attorneys, of Chicago), for ap-pellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial defendant was found guilty of the offense of “unlawful use of weapons” in violation of chapter 38, §24-1 (a)(1), Ill Rev Stats. Defendant was released on probation for the period of one year, with the first thirty days to be served in the Cook County House of Correction.

The determinative question presented on appeal is whether the object found in defendant’s possession and admitted into evidence, without objection, as State’s Exhibit 1, was a “bludgeon” within the meaning of the statute, which provides:

“24-1. § 24 — 1. Unlawful Use of Weapons.] (a) A person commits the offense of unlawful use of weapons when he knowingly:
“(1) Sells, manufactures, purchases, possesses or carries any bludgeon, blackjack, slungshot, sandclub, sandbag, metal knuckles or any knife, commonly referred to as a switchblade knife, which has a blade that opens automatically by hand pressure applied to a button, spring or other device in the handle of the knife; or
“(2) Carries or possesses with intent to use the same unlawfully against another, a dagger, dirk, billy, dangerous knife, razor, stiletto, broken bottle or other piece of glass, or any other dangerous or deadly weapon or instrument of like character

Both sides stipulated to the following description of the object:

“Approximately forty inches long; made entirely of wood; approximately one pound; the handle is about three inches long; an inch in diameter at the bottom portion; one to two inches in diameter on one side and one to two inches in diameter on the other side; the handle is separated from the body by a series of half-inch pegs protruding from the object; there is a carved face of a goat below the pegs; the object is not straight, it is contorted in certain places; it looks like a cane from a tree limb; it looks worn at the end like a cane.”

On February 11, 1969, the complaining witness, Officer Joseph Stehlik, was called to the Forrestville High School located at 4401 South St. Lawrence Avenue, Chicago, on a “disturbance” complaint. Officer Stehlik observed the defendant enter the school with an object in his hand, which Stehlik characterized as a “cane.” The defendant was placed under arrest and then questioned as to why he was at the school. Over objection, Officer Stehlik testified that “he stated that his friend, Jeff Fort, may need some help — Jeff Fort being a member of the Blackstone Rangers.” Defendant was holding the upper three inches of the object in his right hand, and it was pointed straight down with no part touching the ground. Defendant made no statement with respect to the object, and he told Officer Stehlik he was not a student at the school where he was arrested.

Defendant testified that he was twenty-one years of age, born in Arkansas and lived in Chicago since he was ten years old. The object was made for him at the Blackstone Youth Center at 67th and Blackstone. He used it for a walking cane and had it with him all the time. The symbol on it represented a goat. On cross-examination, defendant stated he suffered from no physical disability, and he was not a student at Forrestville.

In finding defendant guilty as charged, the court remarked, “Well, considering all of the evidence, I feel that the State has sustained its burden, and there will be a finding.”

On appeal defendant contends the offense of “unlawful use of weapons” is not sustained by the record, and the State has failed to show convincing proof that the article in question was a bludgeon. Defendant asserts, “Proof of intent to use is not an ingredient of the crime charged against the defendant herein, as it is under Section 24-1 (a) (2) of the Illinois Criminal Code. Mere possession of the prohibited instrument, known and voluntary, constitutes the offense. The reason for this classification is based upon the dangerous character of certain weapons and instruments, the mere possession of which is made unlawful. ... A bludgeon is defined as ‘a short stick, with one end loaded, or thicker and heavier than the other, used as an offensive weapon; hence, any clublike weapon.’ (Webster’s New International Dictionary, 2d ed, 1960.) This description does not remotely fit the object possessed by the defendant. The description of the object fits the description of an ornamental cane.”

Defendant also asserts, “The record is devoid of any testimony using the word ‘bludgeon.’ The only mention of bludgeon is in argument of counsel. At trial, the police officer stated that he ‘observed the defendant enter the school with this cane in his possession/ ”

Defendant further argues that the burden was upon the State to establish beyond a reasonable doubt all the essential elements necessary to constitute the crime charged. (People v. Quinn, 411 Ill 97, 103, 103 NE2d 81 (1951).) If the object in question could obviously be used for no purpose other than as a weapon, such as a “sawed-off billiard cue” or a “broken baseball bat,” then the object might be considered a bludgeon. Defendant further asserts there is no evidence in the record, probative or otherwise, to justify the allegation that the object in question was a bludgeon, and all the evidence in the record points to its use as a cane with a peaceful purpose.

Defendant argues that intent to use is not an element of the offense charged, and “the record herein is devoid of any proof as to the intent to use or the actual use by the defendant of the object as a weapon. He didn’t swing it, raise it, wield it or in any way use it in a threatening manner. The only evidence concerning the defendant’s use of the object is the defendant’s own testimony that he used the object as a walking cane.” Therefore, defendant maintains, as no use has been proved in the record which might bear on the character of the object, it is clear that the charge of unlawful use of a weapon cannot be sustained against the defendant.

Defendant cites People v. Visarities, 220 App Div 657, 222 NYS 401, 403 (1927), where the instrument was an iron bar about twenty inches long and about a half inch in diameter. In finding the object was not a bludgeon, the court stated:

“To base a conviction on mere possession, it must clearly appear that the thing possessed answers the description of one of the prohibited instruments or weapons ....
“As mere possession constitutes the offense, it would follow, if the people’s contention is sound, that one in possession of a piece of crowbar, heavy wrench, hammer, or other similar piece of iron or heavy material capable of use as a weapon could be convicted of a violation of that portion of the statute now under consideration. Such a result was never within the contemplation of the Legislature.
“. . . The fact that the defendant was on a strike and had the iron bar partly concealed under his coat when arrested might be regarded as some evidence of his intent to use. However, we are not called upon to pass upon this question, in view of the form of the information.”

Defendant further argues that if the trial court’s instant decision were upheld, the mere possession of any cane, shillelagh, walking stick, or piece of heavy wood of this size could subject a person to the criminal charge of unlawful use of weapons, and such a result was never the intent of the Illinois legislature and the conviction should be reversed.

The State maintains that the attending circumstances of defendant’s arrest support the finding of the trial court. The evidence shows Officer Stehlik had been called to the high school on a “disturbance” complaint. He saw defendant enter the school, of which he was not a student, with an object in his hand. Defendant was placed under arrest and was questioned as to why he was at the school and “he stated that his friend, Jeff Fort, may need some help — Jeff Fort being a member of the Blackstone Rangers.” Defendant did not have any observable physical defect that required the use of a cane. The construction of the object was such as to make it usable as a dangerous or deadly weapon.

The State further asserts that “a deadly weapon has been defined as one dangerous to life; one likely to produce death or great bodily injury. A deadly weapon is an instrument that is used or may be used for the purpose of offense or defense and capable of producing death. Some weapons are deadly per se; others, owing to the manner in which they are used, become deadly. A gun, pistol, or dirk-knife is itself deadly, while a small pocket knife, a cane, a riding whip, a club or baseball bat may be so used as to be a deadly weapon.”

The State cites People v. Dwyer, 324 Ill 363, 155 NE 316 (1927), where it is said (p 365):

“Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.”

After examining this record, we conclude that the object carried by defendant took its character from the facts and circumstances present at the time of his arrest. The statement made by defendant as to why he was at the school, of which he was not a student, was admissible as part of a direct narrative of the circumstances surrounding the occurrence and within the guidelines of People v. Allen, 17 Ill2d 55, 63, 160 NE2d 818 (1959):

“The test of admissibility of evidence is whether it fairly tends to prove the particular offense charged and any circumstances may be put in evidence which tend to make the proposition at issue either more or less probable.”

As stated in People v. Dwyer, where the character of the weapon is doubtful, it is a question for the trier of the fact to determine from a description of the weapon, from the manner of its use, and the circumstances of the case. Here, the court, after carefully considering all of the evidence, found that the State sustained its burden of proving the object in defendant’s possession was a “bludgeon” and sufficient to prove defendant guilty beyond a reasonable doubt of the offense of “unlawful use of weapons.”

We find no merit in defendant’s contention that the trial court erred in admitting into evidence the statement that he was there because his friend, Jeff Fort, might need some help. As previously noted, the statements made by defendant at the time of his arrest were part of a direct narrative of the circumstances surrounding the occurrence and properly in evidence for use in determining the character of the object in question. Although the object here may have had some proper use as a cane, realistically it took its character from the posture in which the police officer found it in the possession of defendant, and the evidence here was sufficient to support the court’s finding that the object was a “bludgeon” within the meaning of the statute.

In a bench trial in a criminal case, a reviewing court, in view of the opportunities of observation available to the trial court, will not disturb a guilty finding unless the proof is so unsatisfactory or implausible as to justify a reasonable doubt of defendant’s guilt. (People v. Pena, 72 Ill App2d 305, 314, 219 NE2d 667 (1966).) After examining this record, we find the circumstantial evidence and the testimony of the police officer were sufficient to support a guilty finding beyond a reasonable doubt.

Although defendant has not requested any modification of the conditions of his admission to probation, we believe the instant situation calls for the use of the powers given to this court by Supreme Court Rule 615 to reduce or modify the punishment imposed by the trial court. After finding defendant guilty, the court inquired if there was “anything in mitigation and aggravation,” and the prosecutor replied he had no indication of any prior convictions. From this we assume that defendant has never been imprisoned in a place of confinement. Therefore, we think the interests of defendant and society may be best served by eliminating the condition of probation that defendant serve the first thirty days of his period of probation in the House of Correction.

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed, and the terms of defendant’s admission to probation are modified so as to eliminate the condition that defendant serve the first thirty days of his period of probation in the Cook County House of Correction.

Affirmed as modified.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE McCORMICK

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Donald D. Duncan and Otha B. Lacy, Defendants-Appellants.
    Gen. No. 53,175.
    First District, Second Division.
    July 21, 1970.

      Giannis, Giannis and Georges, of Chicago (Peter Georges, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard S. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

In December 1967, Donald D. Duncan and Otha B. Lacy, defendants-appellants, together with Stanley C. Karpinski and Lawrence Woodhouse, were indicted by the Grand Jury of Cook County for the offense of theft of property of Wieboldt Stores, Inc., having a value in excess of $150. At a trial before the court without a jury defendants Duncan, Lacy and Woodhouse were found guilty as charged and sentenced to five years’ probation, with the condition that the first year of probation be served in the Cook County Jail. From that conviction Duncan and Lacy bring this appeal.

The facts appearing in the record are as follows: At about 6:00 a. m., on December 7, 1967, Mike Panop-oulos, director of the security division of Wieboldts, was on the second level of an abandoned building behind the Wieboldt warehouse at 1500 West Monroe Street, in Chicago, when he observed defendants Duncan and Lacy park their cars on Laflin Street. He then saw a Hertz rental truck back onto the receiving dock at the warehouse, at which time Duncan and Lacy loaded the truck, a process requiring about 25 minutes. The truck was driven by Woodhouse, who was one of the convicted defendants, but not a party to this appeal.

Panopoulos testified that he and his partner, Gordon Mead, chief investigator for Wieboldt Stores, followed the truck to a tavern where the driver was joined by Karpinski, the other nonappealing defendant. The two defendants got into the truck where they talked for a short time, and when they left the truck they were arrested by a police officer who had been called by Panop-oulos. The contents of the truck proved to be bed linens from Wieboldt Stores valued at approximately $2,500. The witness and his partner then returned to the warehouse, where defendants Duncan and Lacy were arrested.

Gordon Mead testified that he had seen Duncan and Lacy enter the Wieboldt warehouse earlier that morning. Lacy testified that he and Duncan had tried to gain entrance to the warehouse but the guard did not let them in, so they left and went to a restaurant. Lacy stated that he later returned to the warehouse where he changed his clothes and punched his time card, then went to another Wieboldt warehouse for his day’s work, where he was arrested at about 11:00 a. m.

Duncan testified that he and Lacy went to the warehouse so that Lacy could change his clothes, but they could not get in, so they went to a grill. They returned to the warehouse and waited for the foreman to come and let them in. Duncan testified that he was arrested about 10:30 a. m.

On cross-examination Duncan was asked if he rented a Hertz truck from the Sinclair Station at Montrose and Central, and the question was objected to on the ground that it went beyond the scope of direct examination and that there was no positive identification of a specific vehicle in the question. The objections were overruled.

In this court the defendants object to the fact that the trial court permitted the State’s Attorney to ask defendant Duncan questions relating to his driver’s license, and, over objection, questions relating to the rental of the Hertz truck from a location within the City of Chicago. It is argued that there is no evidence in the record to substantiate that the truck rented by Duncan on December 6, 1967, was the one identified by the witnesses for the prosecution, nor is there evidence as to where it was rented.

Over objection, Duncan answered that on December 6, 1967, he had rented a Hertz truck from the Sinclair Station at Montrose and Central Avenues in Chicago. The fact that a Hertz truck was placed at the scene of the crime would seem to permit the examination with reference to whether or not either of the defendants had rented the truck. The Hertz truck was constantly referred to during the trial. On direct examination Duncan’s attorney asked him if he alone, or with others, had removed cases of bed sheets from the warehouse and placed them on a Hertz truck parked at that platform. He answered he had not. The cross-examination of Duncan with reference to the rental of the truck was proper.

It is true that the scope of a cross-examination is limited to points and matters testified to or mentioned on direct examination; however, in Marut v. Costello, 34 Ill2d 125, 214 NE2d 768, at 127, the court made the following statements:

“As we held in Muscarello v. Peterson, 20 H12d 548, cross-examination is limited to matters brought out on direct examination, but this rule should not be given a narrow or technical application. The purpose of cross-examination is to obtain the truth. However, the matters inquired into must be relevant to the case on trial. This question of relevancy was passed upon in Caley v. Manicke, 29 Ill App 2d 323, (reversed on other grounds in 24 Ill2d 390,) where it was said that the question was whether the evidentiary facts offered proved or tended to prove or disprove a given proposition material to the case as shown by the pleadings. Relevancy is established where a fact offered tends to prove a fact in controversy or renders a matter in issue more or less probable. To be probable, it must be tested in the light of logic, experience and accepted assumptions as to human behavior.”

In the instant case, the Hertz truck was brought into direct examination of Duncan by his attorney. The court’s admission with reference to the renting of the truck was proper.

The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS and BURKE, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James E. Trice (Impleaded), Robert L. Fair (Impleaded, Defendants-Appellants.
    Gen. No. 53,343.
    First District, Second Division.
    July 21, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (William J. Martin and James B. Haddad, Northwestern University School of Law, of Evanston, and Theodore A. Gottfried, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James W. Dempsey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

These appeals are from convictions for armed robbery. After a jury trial both defendants were sentenced; Robert Fair to three to fifteen years in the Illinois State Penitentiary, and James Trice to two to ten years.

On December 20, 1967, William Minor was working his paper route on the south side of Chicago. At about 6:00 p. m. he noticed two men following him, so he turned into a hallway of a building and rang some doorbells in an unsuccessful attempt to gain entrance to the building. Defendant Trice followed him into the building, after which defendant Fair entered and placed a pistol against Minor’s head. Fair then put the gun in his pocket and the three walked to an adjoining gangway, where the defendants took a watch, jacket, gloves and $3 from Minor. They then gave him instructions as to how long he should remain and what he should tell the police. Minor immediately reported the robbery and gave the police a general description of the men.

Two days later, when Minor was sitting in a restaurant at about 5:00 p. m., he saw the two defendants walking past the restaurant. He ran outside to a police car parked two doors away, informed the officers of the robbery and said he thought he had just seen the men who robbed him. After driving with the police to a place near the defendants, Minor stayed in the car while the officers walked over to the two men. When they returned to the car Minor identified the defendants as the men who had robbed him. He further identified the coat and gloves defendant Trice was wearing as those which were taken from him in the robbery. A search of the two defendants revealed that each had a .22-caliber starter pistol in his possession. At the trial Minor identified People’s Exhibit No. 2 — the pistol recovered from Fair — as similar to the one used in the robbery.

On June 6, 1968, a jury was impaneled for the joint trial of Fair and Trice, but no evidence was heard that day. The following morning Trice was absent from court. A defense motion for a continuance on the ground of his absence was denied, and a hearing was then held on the joint motion of the codefendants to suppress the pistols seized at the time of the arrest. That motion was denied. On that same day the State put Minor on for direct examination, and defense counsel began his cross-examination.

Trice was present on the next court date and presented a motion for mistrial because of the ex parte nature of the proceedings of the last court date. The motion was denied and the trial proceeded. Both men were found guilty of armed robbery.

Both defendants argue that they were not proved guilty beyond a reasonable doubt, and that the prosecutor’s closing argument was so prejudicial as to require reversal. Defendant Trice also argues that he was denied his right to appear and defend in person and to confront the witnesses, and that it was error to have admitted into evidence the pistol taken from him. Defendant Fair argues that the record does not substantiate the use of a “dangerous weapon,” one of the elements of the crime of armed robbery.

Both defendants argue that they were not proved guilty beyond a reasonable doubt because they were not properly identified as the assailants. Defendant Fair argues that the only eyewitness to the robbery — William Minor — offered identification testimony which was thoroughly impeached through his testimony at the preliminary hearing; and that his testimony must therefore be considered so vague and uncertain that the conviction must be reversed.

At the trial Minor testified unequivocally that Fair was the second man to walk into the well-lit hallway, and that he stood just one foot from him when putting the gun to his head. He also stated that Fair did not camouflage his face when he entered the hallway, and added that “as he came over to my right side he passed in front of my face.” Minor testified that when the defendants took him into the gangway which was “fairly well lit,” Fair “squatted down so that his face was about one foot from mine,” and told Minor that if anyone asked him he was to say that he had been robbed by the Blackstone Rangers.

Defendant Fair’s contention is that Minor’s identification of Trice was impeached and that, therefore, his entire testimony concerning identification of either party should be rejected. However, we must consider that a reversal on the basis of testimony offered concerning a codefendant could only prevail where the State’s evidence was shown to be so unbelievable that none of the testimony could be accepted. That situation does not appear in the instant case, and Minor’s identification of Fair was clear and convincing.

The pockmarks on Fair’s face were the only feature which Minor admitted he did not recall and had not testified to. It is impossible for us to attach any great importance to this fact without knowing more about the size and nature of the marks. We cannot reverse a conviction simply because a witness fails to account for every detail of the appearance of his assailant. Minor testified that Fair did not attempt to cover his face when he stood one foot from him and put a gun to his head, and that when Fair kneeled next to him Minor got another look at him. The jury was justified in basing the conviction upon such testimony.

Trice’s complaint regarding Minor’s identification of him is far more direct. He argues that a comparison of the testimony given by Minor at the preliminary hearing with his testimony at the trial is conflicting with regard to the identification of Trice. He urges that Minor was impeached at the trial through use of the preliminary hearing proceedings when he said he never saw the first man’s face — the man he now claims was Trice.

At the trial Minor identified Trice as the first man to enter the hallway when he said, “. . . the defendant Trice walked into the hallway with his hand over his hat and his head bowed. He had on a long grey coat and a blue hat. There was a light on in the hallway at that time. I saw Mr. Trice’s face when he first entered the hallway.” Later in his testimony Minor said, “Trice told me to stop looking at him.” He also added, referring to the incident in the gangway, “Trice then stooped down so that his face was about one foot from mine and told me to lie there for ten minutes and to turn my head the other way.”

On cross-examination, defense counsel made much of the testimony Minor had given at the preliminary hearing when he said, “See, what it was, he told me [referring to Trice] don’t look at them. The first time when I do a little like that he slapped me like that and said don’t look at him, and I just turned my head down like that. He started taking me in the gangway like this.” This is consistent with his testimony at the trial that “Trice told me to stop looking at him.” At the preliminary hearing, again referring to Trice, Minor said, “Yes, I seen them as they were approaching the hall as they were coming in. He had came in with his head down like that [indicating], with his hat and hand over it like that [indicating], and asked me did I live in here.” This also is consistent with his testimony at the trial that “. . . Trice walked into the hallway with his hand over his hat and his head bowed.”

At the preliminary hearing, referring to the incident in the hallway, the defense attorney asked Minor about Trice, saying, “So you never did get a look at his face, did you?” Minor answered, “No really, no. But I do remember the other. That is natural. He did not have on a hat.” Minor later explained his testimony by saying, “I was not asked at that time whether I saw Trice’s face when they told me to lie down on my stomach while in the gangway. I saw Trice’s face when he stooped down. He was about two feet from my face looking directly at. me. ...” We see no reason why the jury was not entitled to accept this plausible explanation of what otherwise appears to be a difference in testimony at the preliminary hearing and the trial. Accepting the explanation, the only discrepancy between Minor’s testimony at the hearing and at the trial is his statement at the trial that he saw Trice’s face when he first entered the hallway, and his statement at the hearing that he did not see Trice’s face as he entered the hallway. However, we believe that his testimony at the trial must be read together with his further testimony that Trice walked in with his head down and told him not to look at him. Considering Minor’s testimony as a whole, it would appear that his identification testimony was not vague, uncertain or doubtful, and was sufficient to sustain the convictions. People v. Gardner, 35 Ill2d 564, 471, 221 NE2d 232; People v. Pride, 16 Ill2d 82, 90,156 NE2d 551.

Defendant Trice complains of the trial progressing in his absence and argues that such action denied him his right of confrontation. He was present on June 6, 1968, when the jury was impaneled, but was absent the next day when the trial was to commence. On that date a joint motion to suppress was heard and denied and direct testimony and part of the cross-examination of Minor was heard. The question presented to this court is whether Trice’s absence can be considered a waiver of his right to be present during his trial.

Trice was free on bail during the trial and was present for the first day of the proceedings. In People v. Steenbergen, 31 Ill2d 615, 203 NE2d 404, at page 618 the court said: “It is not only defendant’s right to be present, but it is also his duty, especially where he has been released on bail. To allow a defendant to stop trial proceedings by his voluntary absence would allow him to profit by his own wrong.” In that case the defendant was free on bail and was present when the trial began on January 25, 1963, when the court ordered the case continued until January 28, 1963. Defendant was absent on that day “despite the fact that he knew when his trial would resume. There is no evidence to show the reason why he did not appear. . . . Since there is nothing in the record to indicate that defendant’s absence was anything but voluntary, he waived his constitutional right to be present at his trial on January 28, 1963.” [Ibid.]

In the instant case, after the jury was impaneled on June 6, 1968, the judge told them to return to the assembly room the following morning at 11 o’clock, and the trial was adjourned until that time. The defendant was present then and knew of the adjournment. The following day he was absent. Under such circumstances, we believe that the Steenbergen opinion is directly in point.

In People v. Davis, 39 Ill2d 325, at 330, 235 NE2d 634, the court said: “In those cases where a defendant voluntarily absents himself from the courtroom after the trial has commenced it is uniformly held to be a waiver of the right to be present, leaving the court free to proceed with the trial in like manner and with like effect as if he were present.” In that case the court reversed the conviction and remanded the case for a new trial, since the defendant, unrepresented by an attorney in a felony prosecution, had never appeared in court, yet a jury was impaneled, State’s evidence was presented, and a guilty verdict returned.

In the case before us, we are dealing with an entirely different situation. Here the defendant was initially present, represented by counsel, then chose to absent himself the following day without any explanation. We think it totally irrelevant that after the guilty finding, a reason was offered by the defendant to explain his absence. The question before us is did the trial court act properly at the time it proceeded with the trial in the unexplained absence of the defendant. We hold that the defendant had waived his right to be present and that no error was committed by the trial court’s proceeding with the trial in the defendant’s absence.

Both defendants urge that the prosecutor’s closing argument was so prejudicial as to require reversal of the convictions. We agree that the closing argument did include certain statements by the Assistant State’s Attorney which were improper and that the trial consequently was made less perfect. The reference was that the technique of impeaching Minor was “a trick.” Over objection the prosecutor argued, “These are men, twenty-one years old. And nothing but thugs. Blackstone Rangers, as they said. These are the people who are preying on everybody on the street.” Minor’s testimony was that Fair had told him to say he had been robbed by the Blackstone Rangers. That testimony is subject to several interpretations, one of which is that the defendants were Blackstone Rangers; another, that they were trying to place the blame on a group with which they were not affiliated. Minor’s testimony on this matter had not been objected to during the trial, and the jury had heard the testimony, so could evaluate the prosecutor’s argument. We do not think this part of the argument was proper; however, viewing the record as a whole, it does not constitute reversible error.

In People v. Bravos, 114 Ill App2d 298, 252 NE 2d 776, this court said at page 320: “Convictions are not reversed simply because either or both sides made a few comments which would have been better not made.” Unless it appears that the verdict would have been different had the improper closing argument not been made, the conviction will not be disturbed. People v. Hines, 30 Ill2d 152, 157, 195 NE2d 712; People v. Naujokas, 25 Ill2d 32, 38,182 NE2d 700.

When the defendants were arrested and searched, each had a pistol in his possession. Trice complains that the pistol found on him was improperly admitted since it was never alleged that he had used the weapon, nor had it been suggested that two guns were used during the robbery. In People v. Lenhardt, 340 Ill 538, 173 NE 155, at 549, the court said: “It is competent to prove that an accused person, when arrested, possessed a weapon suitable for the commission of the crime charged against him, even though no claim is made that he actually used it in committing the particular crime. People v. Powloski, 311 Ill 284.” People v. Smith, 413 Ill 218, 221, 108 NE2d 596. It is also admissible to show the circumstances of the arrest. People v. Jackson, 9 Ill2d 484, 492,138 NE2d 528.

It is undisputed in the instant case that both guns were starter pistols. The defendants were charged with armed robbery, “in that they, by the use of force, and while armed with a dangerous weapon,” robbed William Minor. The question thus arises whether a starter pistol is a “dangerous weapon” within the meaning of Ill Rev Stats 1967, c38, § 18-2(a).

In People v. Dwyer, 324 Ill 363, 155 NE 316, at page 365, the Supreme Court said:

“Where the weapon in question and the manner of its use are of such character as to admit of but one conclusion, the question whether or not it is deadly is one of law for the court to determine, but when the character of the weapon is doubtful or the question depends upon the manner of its use it is a question for the jury to determine from a description of the weapon, from the manner of its use and the circumstances of the case.”

In the case before us there was testimony regarding the character of the pistol used in the robbery; the question of whether or not the weapon was dangerous was one of fact, since it could not be said that the character of the weapon could admit of only one conclusion. By returning a verdict of guilty on the charge of armed robbery, the jury has rendered its decision that it was convinced “that there was sufficient evidence to sustain the charge that the pistol was a deadly weapon.” People v. Dwyer, supra, page 365.

There was testimony in the present case that the weapon was held to the head of the victim; there was also testimony that a charge from a shell can create a high flash and cause considerable damage. Based on such testimony the jury was entitled to conclude that the weapon was dangerous. The judgment is affirmed.

Affirmed.

LYONS and BURKE, JJ., concur.


author: JUSTICE LYONS.

text:
    Harriette Solub, Plaintiff-Appellee, v. Hyman Solub, Defendant-Appellant.
    Gen. No. 53,876.
    First District, Second Division.
    July 21, 1970.
    Lawrence Jacobs, of Chicago, for appellant; no brief for appellee.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Newberry, Defendant-Appellant.
    Gen. No. 54,194.
    First District, Second Division.
    July 21, 1970.
    Rehearing denied September 9, 1970.

      Patrick A. Tuite, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Anthony M. Monte-murro, and Alfred L. Levinson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant, indicted for the crime of murder, was found guilty at a bench trial of the crime of voluntary manslaughter, and sentenced to a term of four years to fifteen years in the penitentiary. He appeals.

The evidence adduced by the People shows that in the late afternoon of September 4, 1968, the defendant entered a tavern located on West Diversey Avenue in Chicago and took a seat at the bar next to Dorothy Brogan. Sometime after 8:00 that evening patrons at the tavern heard a noise which sounded like a “cannon cracker” or a firecracker. One of the patrons testified that after the noise was heard, he noticed the defendant place a gun on the bar, and another testified that he observed the deceased lying on the floor with a pool of blood around her head and shoulders. After the defendant placed the gun on the bar, one of the patrons picked it up, and defendant later requested its return.

Chicago Police Officer Charles Roberts testified that he arrived at the scene about 8:25 that evening. After viewing the deceased’s body on the floor, the officer asked, “Who did it?” and in response the defendant- stated, “I did” and “I shot her.” The officer’s attention was then directed to the weapon which had been placed on top of a beverage cooler. The gun, which contained one spent shell and five live shells when recovered by the officer, was admitted into evidence.

Officer Roberts further testified that there were several persons in the tavern at the time the defendant made the statement that he shot the deceased, and the officer testified that he noted and recorded in his report the names and addresses of the other persons present. Defendant moved to strike the officer’s testimony concerning the defendant’s statement on the ground that the People failed to include in its list of witnesses the names and addresses of all persons present when the statement was made. The motion was denied.

Detective Rocco Rinaldi of the Chicago Police Department Homicide Unit testified that he and defendant had a conversation at the scene during which defendant related that he had been seeing the deceased socially for three years, that the deceased was in the process of breaking off the relationship, that the defendant had given the deceased a great deal of money over a period of time, and that the defendant had left his wife for the deceased. The witness also testified that the defendant told him that immediately prior to the shooting the defendant wished to discuss with the deceased the continuance of their relationship, that the deceased refused to speak with him about the matter, and that he shot her. The detective testified that the defendant told him that after the shooting, he stood over the body and said, “I told you I was going to shoot you.” The defendant then stated to the witness, “If [a patron] didn’t take that gun away from me, I would have shot myself.”

Detective Rinaldi also testified that he and three other police officers later had another conversation with the defendant at police headquarters. During the latter conversation the defendant related that he had taken the gun into the tavern with the intention of shooting the deceased. He stated that he had been in the tavern about four hours prior to the shooting, and that he did not know the deceased was present until after he entered the premises. The defendant again moved that the testimony of Detective Rinaldi be stricken on the ground that the names of two of the officers present at the time of the conversation did not appear on the list of witnesses supplied by the People. The motion was denied.

It was stipulated that the deceased died of a gunshot wound in the head, the bullet entering the left side of the face on a line near the left temple at a point between the left eye and left ear, and exiting the head at the center of the top.

The evidence for the defendant consisted of the testimony of a police detective and of the defendant himself. Detective Charles Wos testified generally as to the condition of the deceased’s body at the time he observed it at the scene. He also testified that there was a bullet hole in the ceiling of the establishment above the bar, about four to six feet on an angle from the position where the deceased had been seated. He expressed the opinion that the bullet which killed the deceased traveled in an upward direction and that the weapon was positioned somewhat below the point where the bullet had entered the head.

Defendant testified that he and the deceased had dated about three years. Prior to the day of the shooting, defendant had moved out of his apartment and was living out of his automobile. He testified that he owned the gun used in the shooting for several years and that after moving out of his apartment he carried the weapon on his person because he did not wish to leave it in the automobile; he also stated that he carried the weapon because he had been contemplating suicide for some time, but had not yet “worked up the nerve to do it.”

After he entered the tavern on the evening of the occurrence, he noticed the deceased seated at the bar and took a seat to her left; he stated that he did not expect to see her at the tavern on that date. He purchased drinks for the deceased and personally consumed seven to ten bottles of beer. He testified that he later requested the deceased to leave the tavern with him for something to eat, but the deceased refused. The defendant stated that he then said to the deceased, “One of these days I am going to shoot myself right through the head,” to which the deceased replied in an obscene manner, telling him that she did not care what he did.

Defendant testified that the reply made by the deceased “was the straw that broke the camel’s back” and that “I was going to kill myself right then and there.” He testified that he took the gun from his right-hand pants pocket and began to raise it to his head when it discharged. He stated that he did not “cock the gun,” and that he did not recall squeezing the trigger. Defendant testified that he then noticed the deceased lying on the floor, that he placed the gun on the bar, and that when he went to arrange the deceased’s clothing which was in disarray from the fall, he noticed that she was injured. He testified that he then heard someone state that he had shot the deceased, and that when he turned to get the weapon from the bar, he was pushed away and one of the patrons took the weapon. He testified that before the police arrived, he requested the return of the weapon so that he could shoot himself. Defendant denied telling the police that he entered the tavern with the intent of killing the deceased.

Defendant initially contends that there is no evidence to support a conviction for voluntary manslaughter, in that the record supports a conclusion that he was either guilty of murder, or that the homicide was accidental. We disagree.

There is evidence in the record to support a finding of guilty of manslaughter. The defendant had been seeing the deceased for approximately three years prior to the homicide; defendant had left his wife for the deceased, and he had given the deceased money during the period of their relationship. The deceased had severed the relationship several weeks before the shooting and had been avoiding the defendant in the interim.

On the evening of the shooting, defendant had attempted a reconciliation with the deceased, and after the deceased had refused to accede to his wishes, he threatened to shoot himself through the head. The reply of the deceased was made in a rude manner and obscene language, the deceased telling the defendant that she did not care what he did. Immediately thereafter the defendant drew his gun and shot the deceased.

The trier of fact could reasonably have found from this evidence that defendant, already in a depressed emotional state and having contemplated committing suicide, became so aroused and impassioned by the deceased’s attitude and by the nature of her reply to his request, that he immediately drew the gun from his pocket and shot her in the head. The evidence supports the finding of manslaughter. People v. Sain, 384 Ill 394, 51 NE2d 557; People v. Green, 23 Ill2d 584, 179 NE2d 644.

The cases cited by the defendant in support of his position are distinguishable on their facts. See People v. Washington, 27 Ill2d 104, 187 NE2d 739; People v. McMurry, 64 Ill App2d 248, 212 NE2d 7; People v. Johnson, 54 Ill App2d 27, 203 NE2d 283.

Defendant secondly contends that the trial court erred in refusing to strike the testimony relating to the statements made by him to the police officers after the shooting. He argues that he was informed of only one of those statements, and also that the names and addresses of all witnesses to the statements were not furnished on the People’s list of witnesses as requested by defendant’s pretrial motion and as is required by statute.

The record reveals that three separate statements were made by the defendant to the investigating police officers, to the effect that he shot the deceased. The first statement was made to Officer Roberts when he initially arrived at the scene of the shooting, and in the presence of a number of patrons who were in the tavern. The second statement was made to Detective Rinaldi, in his presence alone. The third was again made to Detective Rinaldi, in the presence of three other officers. The second statement, made in the presence of Detective Rinaldi alone, is not subject to defendant’s criticism. The detective’s name did appear on the People’s list of witnesses, and he was the only person present when the defendant made that statement.

With regard to the other two statements, the trial judge erred in failing to strike the testimony. As to the first statement, the reply made by the defendant to Officer Roberts’ question to the patrons when he first entered the tavern, was apparently loud enough so that others in the tavern beside the officer could hear it. The names and addresses of the other persons present in the bar were recorded by the officer in his report, yet they did not appear on the People’s list of witnesses. As to the third statement, it was given in the presence of four officers, whereas only two of the names appeared on the list of witnesses.

Section 114 — 10 of the Criminal Code provides that the People, on timely motion by the defendant, must supply the defendant with a list of the names and addresses of all witnesses to statements made by him. The statute further provides that failure to comply with the provisions thereof will render a statement inadmissible as evidence. Ill Rev Stats 1967, c 38, par 114-10. The terms of the statute are mandatory, and failure of the People to strictly comply therewith will render a given statement inadmissible. People v. DuPree, 26 Ill2d 320, 186 NE2d 237.

Under the circumstances of this case, failure of the trial court to strike the testimony relating to the first and third statements worked no prejudice to the defendant. Those statements involved admissions by the defendant that he shot the deceased, and were merely cumulative of the testimony of Detective Rinaldi concerning the second statement which was made to him alone. The defendant admitted on direct examination that he shot Dorothy Brogan, which was as much as he admitted in his statements to the officers. There was sufficient evidence adduced from which, without those two statements, the trier of fact could find the defendant guilty of manslaughter. People v. Pelkola, 19 Ill2d 156, 166 NE2d 54.

There was no reversible error. The judgment is affirmed.

Judgment affirmed.

MCCORMICK, P. J. and LYONS, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vernell J. Hasty, Defendant-Appellant.
    Gen. Nos. 54,322, 54,323.
    First District, Second Division.
    July 21, 1970.

      Leonard Karlin, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Thomas Holum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crimes of theft and aggravated assault, and was placed on probation for a period of one year, the first ninety days of which were to be served at the Illinois State Farm at Vandalia. He appeals.

Defendant made an oral pretrial motion to suppress evidence. A hearing was held on the motion at which the following evidence was adduced:

Frank Cristoff testified that on February 17, 1969, he was employed as a security guard at the Wieboldt Department Store located at 63rd and Green Streets in Chicago. He observed the defendant and a second youth enter the store and proceed to the music record department. The second youth was carrying a shopping bag bearing the advertising of another department store, and from a distance of about thirty-five feet away, the witness observed the defendant place approximately eight record albums into the shopping bag. The two youths were in the record department about four minutes, after which the second youth left the store with the shopping bag containing the albums without paying for them. He was followed by the witness’ partner, a fellow security guard employed by Wieboldt Department Store, but the youth was not apprehended.

The defendant then left the store, also without paying for the albums, and was followed by the witness. About a half block from the store, the witness stopped the defendant and identified himself. Mr. Cristoff testified that defendant became belligerent, reached into his pocket and drew out a straight razor. The witness’ partner, who had been standing behind the defendant, took hold of the defendant and wrested the weapon from him. Defendant’s motion to suppress the evidence of the razor was denied and defendant thereupon proceeded to trial on both charges.

At the trial, Mr. Cristoff’s testimony was essentially the same as that given at the hearing on the motion to suppress. In addition, the witness testified that the defendant had made no purchases at the store during the period of defendant’s presence in the store. He also testified that the second youth did not pay for the albums before he left the store, and that after the witness’ partner went in pursuit of the second youth, the defendant hesitated a moment and then left the store. Mr. Cristoff testified that when the defendant was eventually stopped on the street and after the witness and his partner had identified themselves, the defendant became belligerent and stated, “I didn’t do nothing and I am not going back,” at which point he went into his pocket and pulled out a razor. Cristoff testified that he “backed off” from the defendant when the razor was drawn, and that his partner then grabbed the defendant from the rear and wrested the weapon from him. The witness stated that the second youth, who was carrying the shopping bag, was not located and that the record albums put into the shopping bag by the defendant were likewise not found.

Defendant testified in his own behalf and stated that he arrived at the store on the day in question with a youth named Elwin Tate. The defendant stated that he purchased a sketch pad at the store and then joined Tate in the record department. He testified that he gave Tate the sketch pad to drop off at his (defendant’s) home because the defendant was not returning home immediately. He testified that he and Tate then browsed through the records in the record department, but that he did not pick up any albums. Tate thereafter left the store and the defendant went to the ladies’ stocking department and then to the candy department to purchase something for his wife, after which he left the store. When he reached 63rd and Halsted Streets, he was accosted by two men who grabbed him and stated that they wanted to talk to him. The men took the defendant back to the store, where they beat him and removed the razor from his jacket pocket. Defendant testified that he did not draw the razor from his pocket, and that he carried it for protection against gang members. Defendant also denied participating with Tate in removing record albums from the store.

Defendant first contends that the trial court erred in denying his motion to suppress the evidence of the razor for the reason that he was not lawfully under arrest at the time that the weapon was seized from him. He contends that a private person may effect an arrest only when he has reason to believe that an offense is being committed, and that in the instant case the arrest was not effected until after the defendant had departed the store, “émpty-handed.”

Section 10-3 of the Criminal Code provides that a merchant, his agent or employee, who has reasonable grounds to believe that a person has, inter alia, wrongfully taken merchandise from the establishment, may detain such person in a reasonable manner and for a reasonable length of time to investigate the matter; the section further provides that such detention shall not constitute an arrest. Ill Rev Stats 1967, c 38, par 10-3(c).

Mr. Cristoff, a Wieboldt Department Store employee, testified that he observed the following sequence of events: the defendant and a second youth entered the store and proceeded to the record department; the defendant began placing record albums into a shopping bag carried by the second youth; the second youth left the store without paying for the albums; and the defendant followed shortly afterwards, likewise without paying for the albums. The witness clearly had reasonable grounds to follow the defendant out of the store and to stop him for the purpose of investigation. At that point, however, the defendant became belligerent, stated that he was not returning to the store, and drew a straight razor from his pocket. Defendant thereby committed a separate and distinct crime, that of unlawfully displaying a dangerous weapon, which was thereupon properly seized by the witness’ partner. Ill Rev Stats 1967, c 38, par 107-3.

Defendant also contends that his guilt was not proved beyond a reasonable doubt as to both charges. He first argues that the corpus delicti of the crime of theft was not proved because the record albums which were allegedly taken from the store were not produced, and that if any theft was committed, it was committed by the second youth who was not apprehended.

The People’s evidence showed that defendant was an accomplice in the theft by assisting his companion in removing the records from the store. He placed the albums in the shopping bag held by the other youth. Ill Rev Stats 1967, c 38, par 5-2. Further, it has long been held that the testimony of a single witness, where credible, will be sufficient to sustain a conviction, although that testimony is contradicted by the accused. People v. Davis, 70 Ill App2d 419, 218 NE2d 3. Consequently, the fact that the second youth was not apprehended and the records taken not produced is immaterial. See People v. Pendleton, 75 Ill App2d 314, 221 NE2d 112.

As to the conviction for aggravated assault, the defendant argues that there is no evidence that Mr. Crist-off was placed in fear when the razor was removed, and no evidence that the razor was open.

Frank Cristoff testified that he was standing two and one-half to three feet from the defendant at the time the weapon was drawn. He testified that the defendant “became belligerent” prior to drawing the weapon, and that he “backed off” from the defendant when the weapon was drawn. Further, it cannot be denied that a straight razor falls into the category of a “deadly weapon” as contemplated by law. (People v. Carter, 410 Ill 462, 465, 102 NE2d 312.) From this evidence, the trier of fact could reasonably have found that the witness had been placed in fear of being seriously injured by the defendant. See People v. Rice, 109 Ill App2d 391, 248 NE2d 745; People v. Preis, 27 Ill2d 315, 318, 189 NE2d 254.

For these reasons the judgments are affirmed.

Judgments affirmed.

MCCORMICK, P. J. and LYONS, J., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Darnell Newton, Defendant-Appellant.
    Gen. No. 54,591.
    First District, Second Division.
    July 21, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    Marjorie Hall, Plaintiff-Appellant, v. Benjamin Kaplan, et al., Defendants-Appellees.
    Gen. No. 52,055.
    First District, Fourth Division.
    July 22, 1970.

      Lawrence P. Hickey, of Chicago (William J. Harte, of counsel), for appellant.
    Kralovec, Sweeney, Marquard & Scoby, of Chicago (George E. Sweeney and Edward V. Scoby, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiff seeks from defendants damages of $100,000 for injuries sustained in defendants’ apartment building. Her amended complaint alleged, in essence, that defendants negligently permitted portions of the carpeting in common areaways to be and remain in a torn, worn and defective condition. Plaintiff also alleged generally that the common areaways were negligently and carelessly maintained and that they were not properly lighted, in violation of a city ordinance. Plaintiff advanced the theory, during the trial, that the alleged occurrence produced traumatic arthritis in her left hip. A jury verdict was returned in defendants’ favor, and from judgment thereon plaintiff has appealed.

Eegarding the factual occurrence, plaintiff testified that on Saturday, September 21, 1963, at approximately 5:00 p. m., she left her apartment in defendants’ Granada Apartment Hotel to go to a nearby store. While walking down the corridor on the third floor, she caught the heel of her left shoe in a tear in the carpet. Her heel slid underneath all the way to the floor. Although she didn’t fall down, her leg slipped out from under her body, and she lurched backward and forward until she could balance herself against the wall. She took her foot out of the shoe and pulled the shoe up from the carpet. At this point, she noticed the tear in the carpet. Plaintiff, continuing to the store, did not notice “anything unusual” until 7:30 that evening, when she felt “sort of stiff.” She testified that she stayed home Saturday and then told a woman at the hotel desk on Sunday evening about the injury. She first saw a doctor about it on Monday. Since the accident, she has suffered great pain in her left hip, which resulted in hospitalization for over four months and consequent loss of much work. Plaintiff testified further that she did not leave her apartment on Friday night, September 20, and denied that she was intoxicated at any time during that evening.

Plaintiff’s next-door neighbor, Clarence Hvorka, testified that plaintiff pointed out to him a four-to-six-inch tear in the carpet “a couple of days after the occurrence.” He had walked through that corridor “a great many times each week,” but had not previously noticed the torn carpet. He also said that the lighting in the hallway was very poor. An electrical engineer, called as an expert witness, testified concerning certain tests made to determine light intensity in the hallway.

Defendants’ witnesses included the hotel manager and the desk clerk. Ellen Jennings, the desk clerk, testified that on Friday, September 20, 1968, she was on duty in the hotel lobby. Saturday morning, between 8:00 and 4:00 a. m., plaintiff returned to the hotel. She noticed that plaintiff had difficulty in walking because she wobbled and stumbled. A man was assisting her and it appeared plaintiff couldn’t walk without his aid. Plaintiff stopped at the desk and put an alcoholic drink she had been carrying onto the counter. The witness asked her to remove it, but plaintiff left it there. When plaintiff talked, the witness could hardly recognize what she was saying.

The hotel manager, Wayne Rawlings, testified that he inspects the hotel carpets daily and that immediate repair work is done if the carpet is torn or in any way defective. The carpet that plaintiff complained of was repaired the next day.

A great part of the proceedings, which lasted seven trial days, was devoted to the presentation of medical testimony by both parties. Three physicians testified on plaintiff’s behalf and, in essence, expressed the opinion that, based upon plaintiff’s medical history, there was a causal connection between the alleged occurrence and the arthritic condition in plaintiff’s left hip. Defendants presented five physicians who testified that they previously had treated plaintiff. Each related prior diagnoses of plaintiff’s condition, including instances of hip strain and arthritic condition in various joints. One physician testified that findings from an examination of plaintiff subsequent to the occurrence revealed no arthritis in the left hip. Another physician testified, hypothetically, that the alleged occurrence would be inadequate to produce traumatic arthritis, as alleged by plaintiff.

In this court, plaintiff contends, initially, that evidence introduced by defendants relating to her intoxication and the stumbling episode some thirteen hours before the occurrence, was irrelevant and unfairly prejudiced plaintiff in the eyes of the jury. Defense counsel, in his opening statement, twice made anticipatory reference to this testimony which he expected would show plaintiff’s condition of early Saturday morning as a “state of intoxication” and “a state of complete intoxication.” In actual testimony, however, it was plaintiff who first referred to that period of time when, on direct examination, she denied leaving her apartment on Friday evening and also denied being intoxicated. In contradiction, the desk clerk testified for the defense that early Saturday morning she had observed plaintiff with an alcoholic beverage, wobbling and stumbling and able to walk only with her companion’s assistance.

Thus, plaintiff initiated the introduction of evidence concerning events of the evening prior to the alleged injury. This opened the door for defendants to offer rebuttal evidence on the same topic, and plaintiff cannot now complain that the evidence was inadmissible. See Cleary, Handbook of Illinois Evidence, § 7.3, p 102; Supolski v. Ferguson & Lange Foundry Co., 272 Ill 82, 89, Ill NE 544; Jones v. Sanitary Dist. of Chicago, 265 Ill 98, 102, 106 NE 473. Plaintiff’s assertion that defense counsel’s opening statement compelled her testimony about the prior evening’s activities is without merit, since an opening statement is not to be considered as evidence, and the jury was so instructed.

Further, plaintiff’s assertions that the evidence was irrelevant and immaterial are not supported by the record. “Relevancy is a tendency to render a proposition in issue more or less probable, in the light of logic, experience, and accepted assumptions concerning human behaviour,” and “materiality is determined by the substantive law, within the framework of the pleadings.” Cleary, Handbook of Illinois Evidence, § 12.1, p 206, and see cases there cited. Plaintiff’s claim is predicated on her own theory and proof of causation — that the stumbling incident she testified to could have resulted in the injuries alleged. Defendants’ theory was that such a conclusion, was medically unwarranted. Nevertheless, to meet the evidence under plaintiff’s own theory, defendants sought to introduce evidence of plaintiff’s activities the night before, thereby attempting to demonstrate the possibility that the injury could have been caused by other similar incidents of stumbling. We believe that the evidence of stumbling in the hotel lobby was sufficiently related to the occurrence as testified to by plaintiff, and was therefore admissible. Plaintiff’s movements in each instance were substantially similar and they happened within a reasonably short time span. See Wig-more on Evidence, Vol II, § 442.

The jury was presented with two factual theories to explain the injury. It was also presented with a question of credibility of the witnesses, since plaintiff attempted to establish her exclusive causal theory through medical testimony, and defendants sought to disprove it through their contrary medical testimony. We conclude that the questioned evidence was relevant and pertinent to these issues.

Plaintiff also contends that defense counsel prejudiced her by adducing, at trial, evidence of plaintiff’s various residences from one to three years prior to the accident. After both sides rested, plaintiff moved for a mistrial, urging that evidence of her residences was a device to suggest that she was a person of immoral or unstable character. The trial judge denied the motion but instructed the jury that the evidence complained of was immaterial to the issues involved in the case and that they should draw no inference from that evidence.

In answer to an interrogatory at her discovery deposition, plaintiff had listed three addresses, including one on West Pratt Boulevard, as her residences during the five-year period prior to September 21, 1963. In answer to another interrogatory, plaintiff had listed hospitals where she had been treated or examined during that period. Plaintiff omitted any mention of Illinois Masonic Hospital where, defendants had learned through their investigation, she had been a patient on four occasions, each time listing West Pratt as her address. On direct examination, plaintiff mentioned two of the prior residences, but omitted West Pratt. On cross-examination, plaintiff first revealed two additional addresses, and objection was made to the line of questioning. Defense counsel explained, out of the jury’s presence, that his purpose was to show that the Marjorie Hall who lived on West Pratt was the same person whose name appeared on records of confinement at Illinois Masonic Hospital. The objection was overruled and defense counsel elicited another address before West Pratt was mentioned. The hospital records were introduced after yet another residence had been revealed. On redirect examination, plaintiff’s counsel pursued still further the topic of plaintiff’s residences, and, on recross, defense counsel did likewise. His last examination was over objection and concerned an address that had already been mentioned and one that previously had been omitted.

We believe that, under all of these circumstances, the prejudice to plaintiff, if any, which was occasioned by defense counsel’s line of questioning, is not enough to warrant reversal. Much of the evidence with regard to plaintiff’s residences was properly before the jury, as defense counsel was laying a foundation for the introduction of appropriate documents. Thus, only the last three residences and the related discussions concerning them were improperly in evidence because not subsequently connected to the issues of the case. We find that the trial judge’s instruction to strike the evidence was sufficient to alleviate the prejudice and preserve a fair trial. In denying plaintiff’s motion for a new trial, the judge also expressed his opinion that prejudicial error did not exist in the trial as a whole, which is the proper test to be applied. Our review of the 800-page record leads us to the same conclusion— that the evidence concerning plaintiff’s residences was of minor significance in a lengthy trial which included complicated medical testimony from 10 doctors among the 17 witnesses whose testimony was presented to the jury. In our opinion, plaintiff received a fair trial.

The judgment is affirmed.

Affirmed.

STAMOS, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    Alberta Meade, Administrator of the Estate of Lee Tydus, Deceased, Individually and for the Sole Use and Benefit of Frazier Zella Tydus, Frazier Tydus and Charles Lee Tydus, Plaintiff-Appellant, v. J. Boggiano and A. Podesta, Defendants-Appellees, and Louis Boggiano and Ernest Young, Defendants.
    Gen. No. 53,625.
    First District, Fourth Division.
    July 22, 1970.

      Heller and Morris, and Jerome H. Torshen, of Chicago, for appellant.
    Alan E. Morrill and Robert A. Sprecher, of Chicago, for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff Alberta Meade, Administrator of the Estate of Lee Tydus, deceased, appeals from an order dismissing her complaint as to defendants A. Podesta and J. Boggiano.

The facts alleged in the complaint are that plaintiff’s decedent, Lee Tydus, had been an employee of Paul Gliege, owner, and operator of the dramshop known as the Lake Inn, and that legal title to the premises upon which the dramshop was situated rested in defendants Louis Boggiano, J. Boggiano and A. Podesta.

On August 2, 1966, the decedent was lawfully on the premises in the course of his employment when defendant Ernest Young was sold or given alcoholic liquors by employees of the dramshop which Young consumed rendering him intoxicated. As a consequence of his intoxication, Young stabbed decedent who sustained fatal injuries.

On March 2, 1967, the plaintiff filed an Application for Adjustment of Claim with the Illinois Industrial Commission and thereafter a settlement in the amount of $9,500 was approved thereby terminating the cause.

Plaintiff then filed the complaint in the instant cause on August 1, 1967. The complaint consisted of four counts. The first and second counts were directed against the landlords Louis Boggiano, J. Boggiano and A. Podesta for damages under the Dram Shop Act (Ill Rev Stats 1965, c 43, § 135) . The third and fourth counts were directed against the assailant Young and, as such, are of no concern to the resolution of this appeal.

Defendants J. Boggiano and A. Podesta, moved to dismiss the complaint contending that plaintiff was without remedy under the Dram Shop Act and that the complaint was defective on its face for the following reasons:

1. The complaint alleges decedent’s lawful presence on the premises in the course of his employment.
2. The Dram Shop Act does not provide a remedy for an employee or next of kin of an employee of a dramshop as against the owner of the premises.
3. Plaintiff has made an election of remedy in filing an Application for an Adjustment of Claim with the Illinois Industrial Commission and obtaining a settlement.

The trial court sustained the motion, dismissing the complaint and the cause of action as to defendants J. Boggiano and A. Podesta.

OPINION

The plaintiff contends that the trial court erred in dismissing the complaint as to the defendants-appellees for the following reasons:

1. Dependents of an employee of a tavern have an action under the Dram Shop Act for loss of support against the owner of the premises.
2. Recovery from the employer under the Workmen’s Compensation Act does not preclude an action under the Dram Shop Act against the owners of the premises.

Plaintiff maintains that the terms “every person” and “any person” as used in the section of the Act quoted above in footnote, are all inclusive and to limit the above provisions to exclude employees, as did the trial court, is improper, and contrary to the language and public policy expressed therein. Plaintiff cites Burnley v. Moore, 41 Ill App2d 156, 190 NE2d 141, and Krotzer v. Drinka, 344 Ill App 256, 100 NE2d 518, for the proposition that the courts have impliedly recognized the employee’s right to recover under the Act. In those cases recovery was denied because plaintiffs’ conduct amounted to complicity.

In light of the express and unambiguous language of the Dram Shop Act, we find that the plaintiff falls within the purview of the category of those authorized to seek recovery under the Act.

Plaintiff’s second contention as to the availability of both dramshop and workmen’s compensation remedies for the same injury to an employee of a dramshop is primarily based upon section 5(b) of the Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, § 138.5 (b)) which provides:

“Where the injury or death for which compensation is payable under this Act was caused under circumstances creating a legal liability for damages on the part of some person other than his employer to pay damages, then legal proceedings may be taken against such other person to recover damages notwithstanding such employee’s payment of or liability to pay compensation under this Act.”

Defendants seek to ignore the effect of section 5(b) and maintain that the Dram Shop Act and Workmen’s Compensation Act provide exclusive remedies, even where a dissimilarity of defendants exist and even though section 5 (b) provides for that contingency. They argue that an action against the property owners should not be permitted because they are not alleged to have been guilty of any “active wrongdoing.” The Act does not require such an allegation, however, since it refers simply to an injury “caused under circumstances creating a legal liability.”

Defendants argue that recovery under the Dram Shop Act is not available to an employee of the dram-shop, even if the cause is directed against the owner and not the employer. Defendants reason that if recovery were allowable in this situation, the defendants could seek and successfully obtain indemnification from plaintiff’s employer as the active tort-feasor thereby effectually defeating the provisions of section 5(a) of the Workmen’s Compensation Act (Ill Rev Stats 1965, c 48, § 138.5 (a)) which provides:

“No common law or statutory right to recover damages from the employer or his employees for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided, shall be available to any employee who is covered by the provisions of this Act, to any one wholly or partially dependent upon him, the legal representations of his estate, or any one otherwise entitled to recover damages for such injury.”

It is interesting to note Krambeer v. Canning, 36 Ill App2d 428, 184 NE2d 747, which defendants cite for the proposition that the passive tort-feasor may obtain indemnification from the active tort-feasor. In that case the court held that it was error to dismiss a third-party complaint for indemnification of damages award-able under the Structural Work Act where the prime plaintiff and defendant had entered into a settlement. However, in that case, as in the present one the plaintiff-employee had received damages under the Workmen’s Compensation Act from his employer from whom the prime defendant sought indemnification.

We fail to appreciate any differing public policy between recoverability under the Structural Work Act and the Dram Shop Act, which would preclude a cause of action against the owner of the premises by an employee of the dramshop operator. Indeed, section 5(b) of the Workmen’s Compensation Act expressly provides for such recovery.

The trial court erred in dismissing the complaint. Therefore, the order is reversed and the cause remanded.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.

       The Dram Shop Act (Ill Rev Stats 1965, c 43, § 135) provides:
      “Every person who shall be injured in person or property by any intoxicated person, shall have a right of action in his or her own name, severally or jointly, against any person or persons who shall, by selling or giving alcoholic liquor, have caused the intoxication, in whole or in part, of such person; and any person owning, renting, leasing or permitting the occupation of any building or premises and having knowledge that alcoholic liquors are to be sold therein, or who having leased the same for other purposes, shall knowingly permit therein the sale of any alcoholic liquors that have caused, in whole or in part, the intoxication of any person, shall be liable, severally or jointly, with the person or persons selling or giving the liquors. . . . An action shall lie for injuries to means of support, caused by an intoxicated person, or in consequence of the intoxication, habitual or otherwise, of any person resulting as aforesaid ...”

       The court also found no just reason to delay enforcement or appeal from its order, thus rendering the order appealable. Supreme Court Rule 304(a); Ill Rev Stats 1967, c 110A, § 304(a).


text:
    Sarvelle Lorsch, Administrator to Collect of the Estate of Frederic Z. Lorsch, Deceased, and Bernard Miller, d/b/a Insurance Budget Plan, Plaintiffs-Appellees, v. Gibraltar Mutual Casualty Company and Gibraltar Insurance Company, Defendants-Appellants.
    Gen. No. 53,661.
    First District, Fourth Division.
    July 22, 1970.

      Narusis & Stimson, of Chicago (Ellis B. Rosenzweig and Robert G. Johnston, of counsel), for appellants.
    Wilbur S. Legg, Alex R. Seith, R. R. McMahan, Lord, Bissell & Brook, of Chicago, for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Defendants, Gibraltar Mutual Casualty Company and its successor, Gibraltar Insurance Company, appeal from a judgment of $29,413.31 entered in favor of plaintiffs, Frederic Z. Lorsch and Bernard Miller, d/b/a Insurance Budget Plan (IBP) for unearned premiums on cancelled insurance policies.

IBP was in the business of financing premiums on automobile insurance policies, and financed the 199 policies written by defendants from August, 1960, to May, 1961, involved in this dispute. IBP’s method of operation was to deal indirectly with the insured-borrowers through various insurance brokerages and agencies (hereinafter referred to as producers) which solicited business for insurance carriers on a commission basis. The producers soliciting the accounts involved in this dispute were Schoeneman Insurance Service and Major Insurance Service (both operated by Bernard Schoene-man), Gene W. Fawcett Agency, Triangle Insurance Agency, Inc., Certified Insurance Agency, Vulcan Insurance Agency and Fremac Insurance Agency.

When a prospective insured contacted a producer for automobile coverage and desired to finance the premiums, the producer would first submit the application for insurance to the defendants. If the application were approved, the issuing agent, Aero Marine Management Co. would send a “daily” (Memorandum of coverage) covering the insured to the producer.

The insured would then sign a form premium finance contract supplied the producer by IBP. The finance contract provided for assignment of the insurance policy to the producer along with the right of policy cancellation upon default of loan payments. The contract also provided that the producer would have the right to any return premiums. However, in the case of the Fawcett Insurance Agency, the producer would enter the insured’s name on the finance contract without obtaining his signature.

The producer would then assign the finance contract to IBP and also provide them with a copy of the insured’s policy. IBP then issued a coupon payment booklet for the loan installments to the insured and notified defendants of the assignment and premium financing, and of IBP’s assignment rights. The notice provided that if the assignment were unsatisfactory, the defendants were to notify IBP within ten days.

Defendants presented testimony to show that when they received a notice of assignment from a finance company, the original of the notice was placed with the policy in the files and the attached duplicate was sent back to the finance company stamped with the following limitation:

“The assignment will not be honored unless the premium finance check is made payable to Gibraltar Mutual Casualty Company.”

However, plaintiff Bernard Miller testified that IBP never sent a duplicate copy of the notice to the carriers in the instances here involved and that IBP never received a return memorandum stamped with the above limitation.

After the ten-day period had elapsed without notice of objection from defendants, IBP would draft a check payable either to the producer or defendants for the financed portion of the premium. In the case of premium financing on policies issued by Schoeneman and Fawcett, the checks were made payable to the producer. As it turned out, these amounts were never forwarded by Fawcett and Schoeneman to defendants, and that basically is the reason for this litigation. However, where the policies were issued through Triangle, Fremae, Vulcan and Certified, the checks were made payable to defendants pursuant to defendants’ specific instructions.

Plaintiff Frederic Lorsch testified that only in a few instances was he required by the carriers to pay them directly but that he was never so instructed in the cases of Fawcett and Schoeneman. However, Mr. Casati, president of the defendants, testified that he instructed Miller to make all Fawcett policy checks payable directly to defendants.

On April 10, 1961, after most of the policies here involved had been issued, IBP requested defendants to confirm the fact that both Schoeneman and Fawcett were direct agents of the carrier. Defendants confirmed as to both, but on May 2,1961, they notified IBP that Fawcett was a “producer-subagent” being an agent of Aero Marine.

Both Schoeneman and Fawcett were authorized by IBP to act as collecting agents for the loan installments. When subsequent checks for premium financing were made payable to them, the amount of the unremitted loan installments collected by them were deducted to balance accounts. In all other cases the insured borrowers would make their installment payments directly to IBP.

When an insured-borrower defaulted on the loan payments, IBP would send a cancellation notice to defendants who in all cases here involved cancelled the policy pursuant to IBP’s request. However, instead of remitting any amounts of unearned premiums to IBP, defendants would credit the producer’s account.

After IBP’s repeated requests for the return premiums on the cancelled policies, they filed this suit in equity praying for an accounting and payment of the return premiums. Defendants filed a jury demand which was subsequently stricken and the cause was referred to a Master in Chancery.

The Master concluded that the producers were either agents or subagents of the defendants and that, therefore, they had received payment of premium from IBP on behalf of defendants who were now liable to plaintiffs for repayment of the unearned portions.

Defendants filed 23 objections to the Master’s Report which were denied, and, standing as exceptions, they were subsequently overruled by the Chancellor who approved and adopted the Report as submitted. Judgment was entered in favor of plaintiffs for $29,413.81, and defendants appealed.

OPINION

Defendants initially contend that they were denied their right to a jury trial when the court improperly exercised its equity jurisdiction to require an accounting. They correctly assert that an action for an accounting is one at law unless: (1) discovery is necessary, (2) complicated or mutual accounts are involved or (3) a fiduciary relationship exists between the parties. However, defendants maintain that none of these factors is present in this suit.

Plaintiffs contend that the case was a proper subject for equity jurisdiction because of the numerous and complicated accounts involved.

In Corpus Juris Secundum, vol 1, page 653, it is stated:

“No precise rule can be laid down as to what constitutes such complication of accounts as will give equity jurisdiction, that being a matter for the determination of the court in a particular case in the exercise of its discretion.”

It is a well accepted rule of law that the mere existence of numerous accounts alone will not confer equitable jurisdiction. Hornbeek v. Hornbeek, 5 Ill App 2d 253, 125 NE2d 535. But, as stated by defendants, the accounts must be of a nature “beyond the ken of average jurors.”

In view of these standards, we find the trial court properly exercised its discretion in assuming equitable jurisdiction. Each of the 199 accounts here involved required numerous entries and prorations. It is also significant to note defendants’ recitation in their petition for extension of time to answer or otherwise plead, wherein they state:

“Defendant needs additional time to prepare an Answer or to otherwise plead became of the complexity and number of accounts involved.” (Emphasis supplied).

Therefore, the trial court was correct in striking defendants’ jury demand and in retaining equity jurisdiction.

Defendants next contend that the trial court erred in permitting plaintiffs to introduce into evidence the filled-in finance contract forms on policies issued through the Fawcett Agency representing over $8,000 of plaintiffs’ recovery. These finance contracts bore the written names of the respective insured-borrowers. However, even a cursory examination reveals that all the names were signed in the same hand. The Master admitted the documents as written memoranda of oral financing agreements entered into by the insured-borrowers with Fawcett who had subsequently assigned the contracts to IBP.

Defendants contest this ruling of the Master contending that there is no evidence to support a finding of the existence of the oral contracts and that even if there were such evidence, the contracts would still have no basis for admissibility.

Where the Chancellor has approved the findings of the Master, the Appellate Court on review may still look to the facts upon which the findings were based. Turzynski v. Libert, 122 Ill App2d 352, 259 NE2d 295 (1970).

The form finance contracts provided the producers by IBP consisted of one page separated into two sections. The upper section of the contract contains a recitation of mutual promises between the producer and the insured-borrower including an assignment of the policy to the producer. At the bottom of the upper section a blank space is provided for. the signature of the insured. This is the space where the Fawcett Agency entered the names of the insureds.

Below the upper section is an "Assignment Without Recourse” where the producer assigned all right, title and interest accruing to him from the above contract to IBP.

All Fawcett contract forms have Fawcett’s signature on the lower section with the insured’s name entered on the upper section. The evidence tends to show that of the 99 Fawcett policies so issued and financed in this dispute, not one of the named insureds complained of cancellation of their insurance after being informed that the cancellation was due to default of loan payments. Further evidence tends to show that 24 policies similarly written and financed through Fawcett, but not in issue here, were subsequently cured for default of finance payments after cancellation. Therefore, we approve the Chancellor’s conclusion that the evidence shows these filled-in finance "memoranda” to have been based upon existing oral contracts between Fawcett and the insureds.

Similarly, we also find that the "memoranda” were admissible into evidence. The forms as filled in and signed by Fawcett constitute valid contracts between IBP and Fawcett as to Fawcett’s assignment of the oral contract rights and, therefore, tended to substantiate IBP’s claim to those contract rights, i. e., the right to receive return premiums.

The defendants repeatedly refer to these Fawcett contracts as “forgeries.” However, this phraseology ignores both the findings of fact as to the existence of the oral contracts and the nature of the valid written assignment by Fawcett to IBP contained therein. The upper section of the form contract (the part to be signed by the insured) became part of the assignment to IBP by reference as a memorandum of the provisions of the assignment. The failure to execute in writing the original policy assignment is irrelevant as long as the evidence showed a valid underlying oral contract.

Defendants’ next contention is that the Master erred in ruling that Casati’s testimony as to a statement made by Miller at a meeting on May 31, 1961, would only be permitted to stand against Miller and not Lorsch, since Lorsch was not present at the meeting. Casati testified:

“At that time he (Miller) stated that he didn’t feel, under the circumstances, that his finance company had any rights to premiums because he knew that we had never received a nickel on any of that premium with Schoeneman.”

Defendants cite Ill Rev Stats, c 1061/2, § 11 (1963) which provides:

“An admission or representation made by any partner concerning partnership affairs within the scope of his authority as conferred by this act is evidence against the partnership.”

Under the above statutory provision, Miller’s admission to Casati was admissible both as to Miller and Lorsch. However, we feel that the error was inconsequential. If the admission purported to show that IBP knew of a failure on Schoeneman’s part to pay defendants, it could be given little weight, in light of the fact that it was made after all of the policies had been issued and financed. If the admission purported to show IBP’s position as to their rights, it was mere legal conclusion.

Defendants next contend that plaintiffs are not entitled to recover unearned premiums from an insurance company which never received payment. Defendants’ basic argument in this regard is that they required direct payments of premiums from plaintiffs who failed to so comply and it was error to find otherwise.

Defendants’ argument is founded upon two factual interpretations of the evidence. They first maintain that plaintiffs were notified by defendants that payment was to be made directly, and that in any event, the general practice in the insurance business and the general policy of the defendants was to require a direct payment.

Secondly, defendants maintain that Schoeneman and Fawcett, who account for 168 of the 199 policies here issued, were only producers without authorization to bind the defendants or accept payment of premiums on their behalf, and that plaintiffs well knew this fact.

However, plaintiffs contend that the evidence clearly supports the Master’s findings: (1) that defendants failed to notify plaintiffs of their desire for direct payment, (2) that direct payment was the extraordinary circumstance instead of the general practice and (3) that both Schoeneman and Fawcett were either agents or subagents of defendants and did have authority to accept payment of premiums on behalf of defendants.

After reviewing the evidence, we must concur with the findings of the Master as approved by the Chancellor. The evidence discloses that defendants failed to send any memoranda of the direct payment-limitation to the plaintiffs. The testimony of Casati that he had informed Lorsch of the necessity for direct payment is uncorroborated by the other persons allegedly in attendance at the meeting and raises the inference that if such directions were required, direct payment could not be considered to be the general practice.

Defendants’ contention as to the status of Schoeneman and Fawcett as mere producers and not agents is refuted by defendants’ written confirmation to plaintiffs of these two as “agents” and “producer-subagents.”

Having held that the findings were correct as to the status of Schoeneman and Fawcett, we need not discuss questions relating to section 505 of the Insurance Code (Ill Rev Stats 1959, c 73, § 1065.52). We also feel there is no merit in defendants’ contention that plaintiffs must bear the loss as one of two innocent parties to the transactions.

Defendants next contend that the trial court erred in the assessment of costs and Master’s fees. Three errors are alleged: (1) the Master’s fee is excessive, (2) the award of witness fees is excessive in view of the limited number of witnesses called by plaintiffs, and (3) the cost of $1,294 for the transcript of proceedings exceeds the statutory amount allowable.

Defendants contend that the $5,715.30 Master’s fee was excessive and cites Strilky v. Levy, 33 Ill App2d 91, 178 NE2d 694, wherein the court sustained a Master’s fee of $30 per hour for 67 hours. Defendants contrast the 1,974-page record of Strilky with 1,102-page record in the instant case to show that this case involved less complexity.

However, the mere number of pages in the record is no true indicator of the complexity of a lawsuit. In the instant case the Master devoted 185 hours of time to the very detailed and intricate questions of law and fact. We find no abuse of discretion in the award of the Master’s fee.

Defendants next contend that the witness fees of $255.76 assessed against defendants is excessive, in view of the small number of witnesses who testified for plaintiffs.

Witness fees allowable by statute are $10 per diem, plus 8 cents per mile (Ill Rev Stats, c 53, § 65 (1967)). Witness fees may be taxed even where the witnesses have not testified (Smith v. Kinkaid, 1 Ill App 620) and the awarding of these fees is within the sound discretion of the trial court, Chicago, P. & St. L. R. Co. v. Eaton, 136 Ill 9, 26 NE 575. We find no abuse of discretion in awarding the witness fees.

Defendants next contend that the trial court erred in taxing $1,294 against defendants for the stenographer’s costs of preparing the transcript.

Section 38 (Ill Rev Stats, c 58 (1963)) provides a 15 cents per 100-word allowance to the Master for the taking of testimony and in addition thereto, a 15 cents per 100-word allowance for stenographer’s services where the Master certifies that a stenographer was necessarily employed. Both allowances are taxable as part of the Master’s fee to reimburse his services and costs. However, in the present case, the $1,294 taxed against defendants was not part of the Master’s fee, but was a direct reimbursal of plaintiffs’ half of the cost of the stenographer hired by the parties to the suit. We believe this to be beyond the purview of section 38 and find that the trial court erred in assessing this amount against defendants.

Therefore, plaintiffs shall have 30 days to file a re-mittitur of $1,294. Upon the filing of the remittitur the decree will stand affirmed, otherwise, the decree will be reversed and remanded with directions to enter a decree in accordance with this opinion.

Decree affirmed upon filing of remittitur; otherwise decree reversed and remanded with directions.

Affirmed upon filing remittitur within 30 days; otherwise, reversed and remanded with directions.

DRUCKER and ENGLISH, JJ., concur.

       Gibraltar Mutual Casualty Company extended casualty lines of insurance including automobile coverage. It has since been dissolved and is now organized as a stock company, Gibraltar Insurance Company, one of the carriers comprising the Heritage Insurance Group.

       The sole agency licensed with the Director of Insurance to bind defendants.

       The insured was required to pay 20% of the premium to the producer who deducted his commission and paid the remainder, if any, to IBP. The financed portion, therefore, was generally 80%.