author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Levi Wright and Woodrow Ward, Defendants-Appellants.
    Gen. Nos. 52,019, 52,020.
    First District, First Division.
    May 11, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley, Theodore A. Gottfried, and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial defendants, Levi Wright and Woodrow Ward, were each convicted of the offenses of rape and armed robbery. They were sentenced to the penitentiary for concurrent terms of seven to fifteen years on each offense. On appeal the issues presented for review are: (1) were the identifications of the two defendants constitutionally proper; and (2) were the defendants denied their right to a fair trial by improper rulings and instructions of the trial court.

On April 2, 1966, at about 8:30 p. m., the prosecutrix left a beauty shop and proceeded home. As she turned into her apartment doorway, someone grabbed her arm from behind and said, “Keep walking, there is two other mens behind you.” The three men (later identified as defendant Levi Wright, defendant Woodrow Ward, and one Lonnie Lowe) took her to the rear of an adjoining apartment building and forced her down to an entrance-way below street level. There was a light on over the stairway about six or seven feet from the prosecutrix, and she could see the faces of the men in the areaway. At the bottom of the stairway defendant Levi Wright was one to two feet away from her and defendant Ward was directly in front of her. Lonnie Lowe was standing on the stairs as a lookout.

The prosecutrix testified that defendant Wright then asked her for some money, and she gave him the change that was in her pocket. When she gave Wright the money, Ward was standing in front of her, and Lowe began pulling up her skirt. After she gave the change to Wright he grabbed her purse and saw that she had more money. He took approximately $17 from her and placed a knife against her throat and stated, “You lie, I should kill you.” All three men then had intercourse with her. She stated that she had been in the gangway for approximately one-half hour.

The prosecutrix then went to the apartment of her cousin and told her that she had been raped. This was approximately 10:00 p. m. Two police officers came to the apartment. She was crying and gave them a description of her assailants. She was then taken to Cook County Hospital and examined. After the examination she was accompanied to the Fillmore police station by Police Officer Severin. At that time she viewed a lineup of six Negro men, who were asked to speak certain words, and she identified defendant Wright and Lowe. As to defendant Ward, she testified that after she viewed the lineup she was waiting in the waiting room for her cousin, when Woodrow Ward entered the station, and she immediately identified him as the third person. She said, “He wasn’t in the lineup. . . . Even though he was all by himself, I pointed him out right away. That was the same man that I had previously told the officer that all I remembered about him was that he was 23 and dark complected and had processed hair; and his height.” She further said, “I don’t recall Detective Severin being there at the time I first saw Woodrow Ward. There wasn’t any police officer with me at the time I first saw Woodrow Ward in the station.” She identified People’s Exhibit No. 1 as the knife which Wright placed at her neck and People’s Exhibit No. 3 as the pants she was wearing the night of the occurrence.

On cross-examination the prosecutrix testified she had described defendant Wright to the police as having large eyes and processed hair with large curls. Wright was wearing a beige colored trench coat and had a medium complexion. Defendant Ward was approximately 5', 8", 130 to 140 pounds, and also had processed hair with curls. He was also dark skinned. Lowe was 6', 3", wore a black trench coat and hat and had dark colored pants on. She further testified that when she was attending the lineup, Officer Severin never informed her that they had the men in custody or that they wanted her to identify them. At the lineup, Lowe and Wright were wearing the same clothes they were wearing when they attacked her.

Officer Clay Sostand testified that he was a Chicago police officer assigned to the Fillmore District. On April 2, 1966, at about 9:30 p. m., he interviewed the prosecutrix. He received a description from her as to her three assailants. He then went directly to the district station and as he passed through an interrogation room, there were two men and two police officers present. He recognized the two men from the description that had been given to him by the prosecutrix. He said, “I see those two men in the courtroom,” and indicated Wright and Lowe. A short time later the prosecutrix arrived at the police station and identified Wright and Lowe from a lineup of six men. After the lineup, he and Officer Martin arrested Ward after Lowe pointed out Ward as being the third man involved. He identified various People’s exhibits as clothing worn by and taken from the defendants. Officer Sostand further testified that after talking to the prosecutrix, they surveyed the area in which she said she had been raped, and they found various cards and papers belonging to the prosecutrix.

Officers William Johnson, James Butler, Charles Martin and James Severin also testified for the State. Johnson testified that he was present at the lineup where the prosecutrix identified Lowe and Wright. Also, when he arrested Lowe, he found a butcher knife on his person. Butler testified that he obtained various items of clothing from Lowe and Wright after the showup. Martin testified that the six Negroes in the lineup were dressed in all sorts of different street attire. He was with Lowe when Lowe pointed out Ward as the third man involved. Officer Severin testified that the prosecutrix was seated in the waiting room when Ward first entered the station.

Joseph Price testified that he was a microanalyst assigned to the Chicago Police Department. He found discharges on the panties of the prosecutrix; on Lowe’s pants he found white mucus stains at the fly area; also, some spermatozoa; on the pants of Wright he found spermatozoa; on Ward’s clothing the results were negative.

Dr. Matsuda testified that he had occasion to examine the prosecutrix at the hospital. He found that there was no trauma and did not find any sperm under the miscroscopic examination.

Defendant Ward testified that on the night in question he was with Lonnie Lowe and a man by the name of Phillips. They all had a drink together and then he and Phillips went to Ida Cole’s house. They left her house at approximately 10:00 p. m. and went back to the Bee Hive Restaurant. At that time the police came into the tavern and took him out to a police car, where Lonnie Lowe was seated. Lonnie Lowe pointed him out and called him “Lefty.” He was then taken to the police station but was not placed in a lineup at any time. He saw the prosecutrix in the police station, but had never seen her before. He was then taken in front of her and she was asked if he was the man, and she replied, “No.” After he took his hat off she still said he was not the man. On cross-examination he testified that he did not know Phillips’ last name. Also, Officer Severin was not present in the station when the prosecutrix refused to identify him.

Lonnie Lowe testified that he was with Woodrow Ward at 6:30 p. m. on April 2, 1966. He then left Ward and when he got off of the “El” he happened to meet Levi Wright. He had not known Wright before that. He asked Wright if he could walk with him because he had been attacked recently in that neighborhood. The police then arrested him and confiscated a knife from him. He carried the knife because he had been previously robbed. He was then placed in a lineup at which time he was not wearing a hat, and the prosecutrix identified him. The police started to beat him up and kept screaming about a third man, but all he told them was that he knew a man by the name of Ward and that Ward was with him that evening. He then identified Ward outside of a tavern.

Ida Cole testified that she was with Ward at her home on the date in question between 9:00 and 9:30 p. m. A man by the name of Phillips was with him.

Shirley Wright, defendant Wright’s sister, testified that she saw her brother at a party at 8:30 p. m. on the night in question. He was leaving at that time.

Defendant Wright testified that on the night in question he was at a party and left the party at 8:30 p. m. to go to a friend’s home. He stayed there for approximately an hour and one-half. At approximately 9:30 p. m. he met Lonnie Lowe, but did not know Lowe. Lowe asked him if he would walk up the street with him. He was arrested with Lowe and placed in a lineup. At one time during the lineup he saw the prosecutrix shake her head and then someone touched him on the shoulder.

Defendant Ward initially contends that the admission into evidence of testimony that the prosecutrix had identified him at the police station after his arrest violated his Fourteenth Amendment right to procedural due process of law, since he was identified singly without a lineup, and due process requires a lineup whenever the police can reasonably provide one, as in the instant case. Defendant Ward maintains that his guilt was not proved beyond a reasonable doubt. He had an alibi, and the lighting at the scene of the offense was uncertain. He further contends that his identification by the prosecutrix at the police station was both suggestive and unreliable, and that juries tend to give great weight to eyewitness identification, regardless of its lack of persuasiveness.

The numerous authorities cited by defendant include Wall, Eyewitness Identification in Criminal Cases; Stovall v. Denno, 388 US 293 (1967); and People v. Botulinski, 383 Ill 608, 50 NE2d 716 (1943).

In Wall, Eyewitness Identification in Criminal Cases, it is stated (p 28):

“The emotions of the victim’s injury, fraud, or deception create a predisposition to believe the worst of a person brought before him as the probable offender, especially where there is no alternative suspect.”

In Stovall v. Denno, the defendant was brought to the hospital room of the victim of a burglar’s attack, and she identified him as her assailant. At trial she again identified the defendant and testified to the prior hospital identification. The court held that the defendant was not deprived of due process of law by such an identification procedure because (1) there was no other way to bring defendant before the victim because she might die, and (2) the victim was the only person in the world who could exonerate the accused and so effect his release, particularly since the evidence against him was overwhelming. The court stated (p 302):

“The practice of showing suspects singly to persons for the purpose of identification, and not as part of a lineup, has been widely condemned. However, a claimed violation of due process of law in the conduct of a confrontation depends on the totality of the circumstances surrounding it, and the record in the present case reveals that the showing of Stovall to Mrs. Behrendt in an immediate hospital confrontation was imperative.”

In People v. Botulinski, the defendant was convicted by a jury of the armed robbery of a gas station. The only direct evidence of guilt was the testimony of a single victim. The accused had an alibi, and the lighting near the scene of the crime was “uncertain.” The Illinois Supreme Court reversed the conviction and stated that a single-suspect identification should be given less weight than a lineup.

We agree with the State that the identification of the defendants was “clear, convincing and untainted” and had an independent origin. (People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152 (1969); People v. Cook, 113 Ill App2d 231, 252 NE2d 29 (1969).) The prosecutrix had an ample opportunity to view her assailants. They were in a lighted area for approximately one-half hour, and defendant Ward was immediately in front of her at all times, and she was able to identify two of her assailants in the lineup.

We conclude that the record does not sustain defendant Ward’s contention that the manner of his identification at the police station deprived him of due process of law. The record indicates that the identification of Ward by the prosecutrix in the waiting room of the police station was a coincidence and no different than if she had seen him walking down the street and called the police. The “totality of the circumstances” here does not indicate that a lineup was necessary. (Stovall v. Denno.) We find that the “police station” and “in-court” identifications of defendant Ward by the prosecutrix were properly admitted into evidence.

Defendants next contend that “the court allowed police officers to testify that complaining witness identified Wright from a lineup, and allowed officers to testify that Lowe, a codefendant, identified Ward, thereby committing prejudicial error against defendants.” Defendants assert that this testimony was inadmissible hearsay and its effect was to give the impression to the jury that the evidence against the defendants was corroborated. Authorities cited on this point include People v. Braverman, 340 Ill 525, 173 NE 55 (1930); People v. Lukoszus, 242 Ill 101, 89 NE 749 (1909); and People v. Wright, 65 Ill App2d 23, 212 NE2d 126 (1965).

In People v. Wright, police officers were permitted to testify concerning statements made in defendant’s presence concerning defendant’s identity, and they were allowed to testify as to the identification. On closing argument the prosecutor made reference to their testimony. In reversing the conviction the court stated (p 28):

“The sole evidence involving defendant in the crime was the testimony of the complaining witness. The effect of such additional statements was to give the impression to the jury that the evidence against defendant was corroborated.”

In the instant case the State argues that no objection was raised to the testimony complained of, and the introduction of such testimony at most was harmless error because the circumstances of each identification were reiterated by the complaining witness and the defendants.

On this point it has been said repeatedly that it is error to permit a police officer to testify to the statements made and the things done by a victim by way of identification of the defendant. (People v. Reeves, 360 Ill 55, 64, 195 NE 443 (1935).) We note, also, that although courts of review have repeatedly condemned such evidence, the courts have labeled the testimony “harmless error” and “merely cumulative” if no prejudice to the defendant is shown. This is especially so where the defendant makes no objection to the officer’s testimony, as here. (People v. Campbell, 113 Ill App2d 242, 248, 252 NE2d 26 (1969).) We have examined the testimony in question and some of it is hearsay and improper. Although plain errors or defects affecting substantial rights may be noticed, notwithstanding they were not brought to the attention of the trial court, we find no substantial prejudice here. See People v. Dial, 95 Ill App 2d 345, 362, 238 NE2d 122 (1968).

Defendants further contend that “the defendants were denied their right to a fair trial by the improper rulings and instructions of the trial court.” We have examined the introductory instructions and remarks by the trial court and also the instructions given to the jury for its deliberations, including State’s instruction No. 9, which defendant asserts incorrectly stated the law of alibi defense. We find the jury was adequately instructed on the issues, and no prejudicial error is demonstrated.

Defendants contend that the trial court erred at the end of the State’s case by allowing counsel for the defendants to waive the presence of the defendants during the offering of exhibits into evidence which had been previously identified in the presence of the defendants. At the offering into evidence of the exhibits, defendants’ counsel, in response to a question by the trial court, “Do you want the defendants out here?”, replied, “No, Judge, I waive the presence of the defendants, sure.” Def end-ants cite People v. Mallett, 30 Ill2d 136, 195 NE2d 687 (1964), where it is said (p 141):

“A defendant in a criminal case has an absolute right to be personally present at all stages of his trial. . . . This right may be waived by the defendant but the attorney for the defendant has no power to waive this right on behalf of the defendant.”

We think the pronouncements set forth in People v. Woods, 27 Ill2d 393, 189 NE2d 293 (1963), apply here. There it is said (p 395):

“We have repeatedly held that the constitutional guaranty is not infringed upon by holding hearings outside defendant’s presence which do not involve substantial rights of the accused, . . . and defendant’s right to be present at the trial itself, or any portion thereof, may be voluntarily waived even in felony cases.”

And at page 396:

“[T]he right to be present at a hearing upon a motion for continuance, or advancement and continuance, may be waived by defendant, or by his counsel on his behalf.”

We find no prejudicial error was committed here.

A review of the totality of the evidence shows there was substantial positive evidence to support defendants’ convictions beyond a reasonable doubt. Defendants were permitted liberal direct examination and cross-examination in all vital areas. We find the trial errors heretofore discussed could not have affected the verdicts.

For the reasons given, the judgments of the-trial court are affirmed.

Affirmed.

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


source: Caselaw Access Project

author: MR. JUSTICE ADESKO

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lonzy Harris, Defendant-Appellant.
    Gen. No. 53,276.
    First District, First Division.
    May 11, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer 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 Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for the crime of murder of one Samuel Green. A jury trial found him guilty of the crime of voluntary manslaughter and the defendant was sentenced to a term of five to ten years in the penitentiary. The defendant seeks to reverse his conviction on the grounds that he was not proven guilty beyond a reasonable doubt and the trial court committed reversible error in an instruction to the jury.

The issue concerning the sufficiency of the evidence requires a review of the record. The facts show that on the evening of March 26, 1966, the deceased, the defendant and a Jimmie McDavid were sitting around a kitchen table in an apartment at 5007 St. Lawrence in Chicago. All three men were drinking beer. The defendant and deceased began to talk loudly, a shot was fired and deceased was mortally shot in the chest.

The State introduced several nonoccurrence witnesses who described the apartment after the shooting. Two female occupants of the apartment testified that the three men had been seated in the kitchen. They later discovered the deceased’s body. One of these witnesses heard a noise and after finding the deceased, noticed that the defendant and McDavid had left the apartment. Three police officers testified regarding their investigation of this crime. Two of these officers stated that they searched for the defendant for about one year and finally arrested him in October of 1967, in Portland, Oregon. Coroner’s testimony was received by stipulation and established that deceased died as a result of gunshot wound.

The remaining witness was Jimmie McDavid, who was present when the deceased was shot. The witness arrived at the apartment at 5007 St. Lawrence in response to the defendant’s invitation to come over and drink some beer. When McDavid arrived, the defendant and two women were present. One of the women asked McDavid to drive her to pick up her son. McDavid and the woman left and then returned. McDavid stated that the defendant and deceased were sitting at the kitchen table, involved in a loud discussion. He asked for some beer and was told to help himself. The witness sat down at the table and the discussion continued. The witness stated he did not remember what they were talking about and he continued to drink his beer. Then the deceased jumped up, followed by the defendant. The witness stated that the deceased approached the defendant, who said to the deceased, “Don’t come upon me.” Defendant repeated this twice. The deceased took two steps towards defendant who backed up a little. The witness said that defendant then shot the deceased. He was not sure of how the shot was fired, but stated he saw the defendant fire at deceased. McDavid said that deceased fell down and that the defendant ran from the apartment and the witness also left. The witness was not sure if the deceased had anything in his hands when he walked toward the defendant.

On cross-examination, the witness said he sat at the table with defendant and deceased for about five minutes. He admitted he drank about five or six beers before coming to the apartment. McDavid said that he never saw the gun, but only heard the shot. He said he did not see either the defendant’s or the deceased’s hands. In response to whether he knew who fired the shot, he stated: “Well, I know that Mr. Green got killed.” He couldn’t recall any of the conversation because he wasn’t paying much attention to what happened. McDavid said the deceased and defendant were drinking but was not sure of the extent. He admitted that he didn’t notice much until he heard the shot fired.

McDavid stated on redirect that he did not notice the movements of Green and the defendant after they arose from the table. He stated that both men were about an arm’s length apart when the shot was fired. He again stated he only heard the shot but did not see the defendant’s hands at that time.

Three pictures of the kitchen area of the apartment were introduced into evidence. These photographs showed two views of the kitchen table, the chairs and various objects upon the table. The other photo was a picture of the hallway of the apartment. One of the police officers testified that he inspected the deceased’s hands and they were empty. This officer also said there were no weapons found near the deceased.

The defendant’s contention regarding the alleged insufficiency of the evidence concentrates on the testimony of McDavid. This witness’ testimony is characterized as contradictory and incredulous. Defendant also attacks his creditability because of his admitted drinking on the night in question. The argument is that McDavid’s testimony as the only occurrence witness was improbable and conflicting. Defendant argues that when viewing his testimony along with the circumstantial evidence of the other State's witnesses, the proof is insufficient to show his guilt beyond a reasonable doubt. The defendant also asserts that if McDavid’s testimony is believed, then it was established that the defendant acted in self-defense in killing Green. The State responds by stating that any inconsistencies in McDavid’s testimony are minor and that the evidence as a whole established defendant’s guilt beyond a reasonable doubt. The State points out there was substantial circumstantial evidence, including the fact that defendant took flight after the homicide. Finally, with regard to the self-defense aspect, the State argues that the evidence disclosed that the defendant acted unreasonably in defense of his person.

In the case of People v. Widmayer, 402 Ill 143, 83 NE2d 285 (1949), the Supreme Court stated, at page 146:

“It is the rule with reference to the sufficiency of circumstantial evidence to convict, that it must be of a conclusive nature and tendency, leading on the whole to a satisfactory conclusion. It must produce a reasonable and moral certainty that the accused and no one else committed the crime. His guilt must be so thoroughly established as to exclude every other reasonable hypothesis.”

This same principle has been expressed by this court in the case of People v. Jackson, 98 Ill App2d 296, 240 NE2d 482 (1968). At page 302 of that case this significant addition was stated: “the trier of fact is not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.”

On the basis of the principles set forth we hold that the defendant’s guilt was proved beyond a reasonable doubt. The evidence showed his presence at the scene when Green was shot. It was further proved that defendant took flight after the homicide and was arrested more than a year later in Portland, Oregon. Evidence of flight is a circumstance to be considered in determining the guilt or innocence of an accused. People v. White, 99 Ill App2d 270, 240 NE2d 342 (1968). McDavid’s testimony clearly established that a shot was fired and the evidence showed a fatal wound was inflicted upon the deceased. We are of the opinion that the only reasonable hypothesis was that the defendant fired the fatal shot. The fact that McDavid did not see defendant fire the shot does not destroy his testimony. His statements of his lack of attentiveness at the kitchen table and the witness’ admission that he had been drinking were factors affecting the weight and creditability of the evidence. The determination of the jury should not be overturned under these circumstances.

Similarly, defendant’s argument of self-defense is not well taken. The record shows only that Green advanced towards the defendant but was not seen with a weapon, nor was one found near his body. Yet the evidence shows that defendant used deadly force against the deceased. We believe that this clearly shows that defendant acted under an unreasonable belief at the time of the killing which justifies his conviction for voluntary manslaughter. Ill Rev Stats, c 38, § 9-2 (b) (1967).

The second issue concerns the alleged denial of a fair trial based upon the trial court’s alleged error in instructing the jury. The instruction in question was the State’s Instruction No. 12, which stated:

“The court instructs the jury, as a matter of law, that before a defendant can avail himself of the right of self-defense, as the same is defined in these instructions, it must appear to him, acting as a reasonable person, that at the time of the killing the danger was apparently so urgent and pressing that in order to save his own life, or to prevent his receiving great bodily harm, the killing was absolutely necessary.” (Emphasis ours.)

The defendant complains that inclusion of the word “absolutely” in the instruction misstates the statutory law of self-defense and interjects the retreat requirement into the right of self-defense. Further, defendant contends that his instruction placed an impractical burden of certainty to justify the use of self-defense.

The statute does not contain the term “absolutely” in describing the belief necessary for one to use force against another. The statute only uses the term “necessary.” Ill Rev Stats, c 38, § 7-1 (1967). Despite this deficiency, this court found no error in the giving of an identical instruction in People v. King, 76 Ill App2d 354, 222 NE2d 88 (1966). In King, the defendant argued that the term “absolutely necessary” imposed a higher burden to prove self-defense. The court rejected that argument. In this case, those same reasons are appropriate for rejecting the defendant’s argument that this instruction caused an impractical burden to justify the right of self-defense.

Furthermore, there is no merit in defendant’s assertion that using the term “absolutely” required retreat as an element of self-defense. The State has cogently pointed out that Illinois has not required retreat for the right to self-defense since the case of Hammond v. People, 199 Ill 173, 64 NE 980 (1902). Thus, the elimination of the word “absolutely” from the definition of self-defense in the revision of the Criminal Code had no relevance to the retreat requirement, as defendant has argued. The revision occurred in 1961. Ill Rev Stats, c 38, § 7-1 (1961). The committee comments to this section do not disclose that the deletion of the word “absolutely” had any connection with the retreat requirement.

Therefore, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    Golden Egg Club, Inc., Plaintiff-Appellant, v. Illinois Liquor Control Commission, Defendant-Appellee.
    Gen. No. 53,076.
    First District, First Division.
    May 11, 1970.

      Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe, Herman Tavins, and A. Zola Groves, Assistant Attorneys General, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

This is an appeal from an order of the Circuit Court which affirmed an order of the Illinois Liquor Commission revoking the retail liquor license of the plaintiff corporation. It appears that on January 10, 1968, the appellant was served with a notice of hearing to show cause why its liquor license should not be revoked or suspended based upon charges that appellant had employed a barmaid on January 7, 1968, who was under 21 years of age and that on the same date, the appellant sold liquor to two young men under 21 years of age. The notice of hearing was returnable on January 23,1968.

A hearing was held before the Commission which resulted in the revocation of appellant’s liquor license by an order dated January 25, 1968. The appellant’s petition for a rehearing was denied. Subsequently, judicial review was sought under the Administrative Review Act pursuant to chapter 43, section 154(a) of the Ill Rev Stats (1969).

On this appeal, the plaintiff-appellant maintains that the manner in which the hearing was conducted resulted in a denial of due process of law. Plaintiff points out that the licensee was without representation of counsel and that the two corporate officers who testified for the plaintiff had limited knowledge of the English language. The plaintiff also contends that all of the testimony was unchallenged by cross-examination despite the fact that much of it was hearsay and that if a full hearing had been held the Commission’s findings would not be supported by substantial evidence as required by law.

The Commission maintains that the revocation of plaintiff’s license is based upon substantial evidence of a violation of law justifying the revocation of the liquor license. The Commission further asserts that this court’s jurisdiction is limited to a determination whether the decision of the Commission and the affirmance of that decision by the trial court were based upon and supported by substantial evidence.

The law is clear that in administrative review actions, the function of the courts is to determine if the entire record of the administrative agency contains substantial evidence, to support the findings of that body. Gasparas v. Leack, 93 Ill App2d 99, 235 NE2d 359 (1968). This is the function of both the trial and appellate courts of this State. Mitchell v. Sackett, 27 Ill App2d 335, 169 NE2d 833 (1960). We are mindful of the fact that the right to sell liquor is a privilege subject to proper regulation, which includes the discretion of the Commission to revoke that privilege. Day v. Illinois Liquor Commission, 39 Ill App2d 281, 188 NE2d 883 (1963). However, this discretion must be exercised in a reasonable manner and should not be arbitrary.

With these principles in mind, we turn to an examination of the hearing conducted in this case. Section 6 of the statute provides in part that:

. . all proceedings for the revocation or suspension of a retailer’s license . . . shall be in accordance with rules and regulations established by [the commission] not inconsistent with law. However, no such license shall be so revoked or suspended except after a hearing . . . with reasonable notice to the licensee . . . and after an opportunity to appear and defend. Such notice shall specify the time and place of the hearing and the nature of the charges. The findings of the Commission shall be predicated upon competent evidence.” C 43, § 150, Ill Rev Stats (1969).

It is self-evident that at such a hearing a licensee shall be afforded the basic rights of procedural due process. This is the precise issue which plaintiff has presented before this court.

We agree with the defendant’s contention that a reviewing court cannot substitute its judgment for that of the administrative agency where substantial evidence supports the findings of that board. However, it is the duty of a reviewing court to examine the procedural methods and manner in which that evidence was elicited. A basic tenet of our jurisprudence is that a person should receive a fair and impartial hearing, with an opportunity to offer evidence and cross-examine witnesses. Gigger v. Board of Fire & Police Com’rs of East St. Louis, 23 Ill App2d 433, 163 NE2d 541 (1960).

A review of the record in this case leads us to conclude that requisite fairness and impartiality were not afforded to the plaintiff. The two corporate officers who appeared at the hearing before the Commission were not represented by counsel. Their examination by the Commission shows their difficulty with the English language. All of the testimony and exhibits were admitted into evidence without any opportunity to test this evidence by cross-examination. Furthermore, the only witnesses in support of the revocation before the Commission were two police officers much of whose testimony was based on hearsay without the test of cross-examination, and said officers made reference to pending criminal prosecutions regarding the corporate officers and other individuals involved. At one point during the examination of one of these officers an individual identified only as a “voice” sought to correct the witness’ testimony. The record reveals that the hearing was held less than two weeks after the notice of proceeding was served upon the plaintiff.

From the above state of the record we are constrained to agree with the plaintiff’s contention. We are of the opinion that the plaintiff should be entitled to the opportunity to prepare a defense and to meet the charges preferred against it in this revocation hearing. Therefore, the order of the Circuit Court of Cook County is reversed, with directions to remand the case to the Illinois Liquor Control Commission for a new hearing.

Reversed and remanded with directions.

BURMAN, P. J. and MURPHY, J., concur.


text:
    E. Weiman, Individually, and d/b/a Metered Laundry Co., Plaintiff-Appellee, v. Louis Butterman, Individually and d/b/a L. Butterman and Associates, Defendant-Appellant.
    Gen. No. 53,752.
    First District, First Division.
    May 11, 1970.

      Jacobs, Lieberman and Aling, of Chicago (Eugene Lieberman, of counsel), for appellant.
    Blumenfeld and Blumenfeld, of Chicago (Michael J. Caliva, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is an action based on a written agreement under which plaintiff installed coin-operated washers and dryers in the laundry room of an apartment building. Defendant subsequently purchased the building and plaintiff’s machines, after being disconnected, were displaced by similar machines installed by another company. Plaintiff contended the original agreement was a lease, and defendant asserted the agreement was a license. In a non-jury trial, the court found for plaintiff and judgment was entered for $2,775.

On appeal defendant contends (1) that the agreement was a mere license and not binding upon a subsequent purchaser of the building; and (2) that the damages assessed were not supported by the evidence.

On December 18, 1962, plaintiff entered into an agreement with A. Goldsmith, owner of the premises at 725 North Central Avenue in Chicago, covering the installation and operation of coin-operated washers and dryers. The agreement, which was entitled “Lease,” contained the following terms:

This lease entered into this 18th day of December, 1962, by and between 725 N. Central Building, hereinafter known as Lessor, and E. Weiman d/b/a Metered Laundry Company, hereinafter known as Lessee.
1. The Lessor hereby rents and leases to said Lessee the premises known as the laundry-room located at the north central section of ground floor being a room approximately 18' x 40', located in the building commonly known as 725 N. Central Ave., Chicago, 111., for the purpose of installing and operating coin-operated washers and dryers.
2. The term of this lease shall be for five (5) years, beginning the 18th day of December, 1962, and ending the 17th day of December, 1967, with an option on the part of the lessee to renew said lease for an additional period of five (5) years under the same terms and conditions as are contained herein. Lessee is to exercise this option by mail, to the last known address of the Lessor, a minimum of thirty (30) days prior to the expiration of this lease.
3. The Lessee agrees to pay to the Lessor as and for the rental of the above described premises a sum equal to 25 percent of the gross receipts from the operation of the washers and dryers which will be from time to time operated at said premises. Said Lessee further agrees to pay said amount every six months, beginning the 15th day of January, 1963.
4. Lessor agrees to furnish the Lessee without charge to said Lessee, all necessary electricity, heat, gas and water, both hot and cold, for the continued operation of the washers and dryers installed or to be installed on said premises.
5. Lessor agrees that the title to all washers, dryers and all other equipment necessary for the operation and maintenance of said washers and dryers shall remain in the Lessee at all times, and said Lessee may remove same at the termination of this lease. Lessor further agrees that the Lessee may assign this lease without the consent, either written or oral, of the Lessor.
6. Lessor agrees that for and in consideration of Lessee’s rental of the premises above described, Lessor will not during the term of this lease, allow any other coin-operated washer or dryer to be installed or operated in the above described premises.
IN WITNESS WHEREOF, the parties have caused this lease to be executed under their seals on the date first above written.

Thereafter, plaintiff installed two washers and one dryer with coin boxes in the laundry room, ran an electrical line, a gas line, and made water openings in the laundry room. A sign with plaintiff’s name and telephone number was posted in the laundry room close to the equipment. Plaintiff had no key to the laundry room and the door was customarily open day and night.

Defendant purchased the premises from Goldsmith on September 1, 1966. The contract of sale listed as tenants only the apartment dwellers and did not list plaintiff. Plaintiff never spoke to defendant prior to the sale of the building and defendant did not see the agreement between plaintiff and Goldsmith until a number of weeks following defendant’s purchase of the building. However, before the purchase, defendant inspected the premises and saw the washers and dryers, but made no inquiry as to their ownership. After the building was sold, plaintiff’s machines were replaced by those of a competitor.

Defendant initially contends that the agreement between plaintiff and Goldsmith was a mere license, and hence not binding on a subsequent purchaser of the realty. He principally relies on two New York cases involving a similar question: Wash-O-Matic Laundry Co., Inc. v. 621 Lefferts Ave. Corp., 191 Misc 884, 82 NYS2d 572 (1948) (trial court); and Kaypar Corp. v. Fosterpoint Realty Co., 69 NYS2d 313 (appellate court), affirmed 72 NYS2d 405 (1947).

In Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., the contract of purchase of the building containing the washing machines made no reference to the agreement concerning the installation of the machines, and the agreement was not recorded. In holding for defendant, the court stated (p 575):

“On all the evidence I hold that the defendant did not have actual or constructive notice of the existence of the agreement when it purchased the property. In the absence of such notice the defendant was not bound by the agreement. . . .
“. . . The agreement here did not confer upon plaintiff exclusive possession of any definite space as against the owner of the property; it merely granted a license to install and maintain certain laundry equipment in space designated on a diagram as ‘washing machine room.’ This is not a sufficient delineation of an identifiable space so as to create a grant thereof. It may not be said that by virtue of this agreement the owner of the building could not require the plaintiff to move the machines to another part of the basement, if necessary.”

In Kaypar Corp. v. Fosterpoint Realty Co., the question was whether the plaintiff could claim the protection of the New York Rent Control Law. The court stated (p 316):

“The main object of the agreement is to procure for the tenants of defendant a laundering service. The plaintiff agrees to furnish the service. The plaintiff, through its installations, is granted a license or privilege to occupy the land for the purpose of performing its contract of furnishing this laundry service to the tenants. The plaintiff has no ownership of the space allotted to its equipment in the sense that usually obtains in the relationship of landlord and tenant. In a lease the tenant is the owner of the premises for the term therein specified. The rent is the purchase price for outright ownership for the duration of the term. In the instant matter, all that is granted by the terms of the contract, properly read, is a license to use the designated space for the installation and maintenance of its machines. If the occupation of the land is in connection with a service to be rendered to the landlord, then the possession continues to be that of the landlord.”

Defendant further argues that this type of situation is similar to a concession where the concessionaire operates an enterprise upon realty and pays a stipulated rental based upon profits derived from the concession. He notes that these are construed as licenses and not leases. Day v. Luna Park Co., 174 Ill App 477 (1912).

Defendant finally argues that even if the agreement was a lease, plaintiff did not record and defendant had no notice of the agreement as provided by the Recording Act (Ill Rev Stats, c 30, § 29). He points out that possession of realty, in order to constitute “notice” under the Act must be open, visible, exclusive and unambiguous, such as is not liable to be misunderstood. Millikin Trust Co. v. Gregory, 292 Ill App 28, 10 NE2d 853 (1937); Mack v. McIntosh, 181 Ill 633, 54 NE 1019 (1899).

We are not persuaded that defendant’s authorities apply here. In 24 ILP, Landlord and Tenant, § 26, p 272, it is said:

“No particular words are necessary to create a lease, and, in determining whether a particular instrument amounts to a lease, greater regard should be had to the clear intent of the parties than to any particular words which may have been used in the expression of that intent. It has been stated to be the rule in Illinois that the only essentials to the creation of a valid lease are a definite agreement as to the extent and bounds of the property leased, a definite and agreed term, and a definite agreement as to the price of rental and the time and manner of payment.”

In Bournique v. Williams, 225 Ill App 12 (1922), it is said (p 20):

“ ‘Under the authorities, to create a valid contract of lease, but few points of mutual agreement are necessary: First, there must be a definite agreement as to the extent and bounds of the property leased; second, a definite and agreed term; and third, a definite and agreed price of rental, and the time and manner of payment. These appear to be the only essentials.’ This is the rule in Illinois.”

In the instant case the intention of the parties is clearly shown. The instrument is entitled “Lease,” refers to the parties as “Lessor” and “Lessee,” and gives plaintiff the exclusive right to operate its machines in a specified area for a definite term. Also, the provision that plaintiff could not assign the contract without the consent of the lessor is a provision inconsistent with licensing agreements. (Mueller v. Keller, 18 Ill2d 334, 164 NE2d 28 (I960).) We find the agreement here was a lease and is to be so viewed in litigation regarding it.

Next considered is whether defendant had notice of the lease so as to prevent him from being a protected party under the Recording Act. Generally, actual notice of possession is immaterial if the facts were sufficient to put a purchaser on inquiry. “It is well settled that whatever is sufficient to put a party upon inquiry is notice of all facts which pursuit of such inquiry would lead to, and without such inquiry no one can claim to be an innocent purchaser as against him whose possession raises the inquiry.” (Bryant v. Lakeside Galleries, Inc., 402 Ill 466, 477, 84 NE2d 412 (1949).) Here, defendant inspected the laundry room and saw the two washers and dryer with coin slot machines in them. Although he denied seeing it, the evidence shows that a sign with plaintiff’s name was prominently displayed on one of the walls of the laundry room. In our opinion this was sufficient to put defendant on inquiry and sufficient for the trial court to find that defendant had notice of plaintiff’s possession and interest in the premises.

Defendant also contends that the award of damages was not supported by the evidence. He asserts that plaintiff testified that his income from the washers and dryer was about $40 or $50 per month, less 25 % payment to the owner and service charge of $1.00 per month. He points out that since seventy-four months remained on the contract, “simple arithmetic shows that 74 times 40 comes to $2,960.00, less 25% to the owner and $74.00 service amounts to $2,146.00. Nevertheless, the judgment order was for $2,775.00. Damages must be based upon testimony, not conjecture; a rule so basic that no authorities should be necessary.”

We find no merit in this contention. Although it is not clear just how the trial court arrived at its estimate of damages, particularly with regard to the $74 alleged as a service charge, the record shows an extensive discussion on the issue of damages. The complaint alleged that the income derived from the operation of the washers and dryer amounted to $50 per month. The alleged computation made by plaintiff, after paying to the lessor his 25%, left the plaintiff the net sum of $37.50 per month, and for seventy-four months this amounts to $2,775, the amount allowed by the court. The record before us does not include any evidence which shows otherwise.

For the reasons given, the judgment is affirmed.

Affirmed.

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


text:
    Carol M. Spiro, Plaintiff, v. Earl M. Spiro, Defendant-Appellee, Edward R. Johnston, et al., Petitioners-Appellants. Edward R. Johnston, et al., Plaintiffs-Appellants, v. Earl M. Spiro, Defendant-Appellee.
    Gen. No. 53,837.
    First District, First Division.
    May 11, 1970.
    Charles J. O’Laughlin and Joan M. Hall, of Chicago (Jenner & Block, of counsel), for appellants.
    Myron Lieberman and Robert M. Newton, of Chicago (Lieberman, Levy & Baron, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Petitioners (attorneys) represented defendant’s wife in a separate maintenance action, and she died during the pendency of the action. Seeking to recover attorneys’ fees for their services rendered to her and reimbursement for expenses incurred on her behalf, petitioners filed a petition in the separate maintenance action. Also filed was an independent action at law against defendant, based on the theory that the legal services were “necessaries” of the wife and recoverable from the husband. The two actions were consolidated for hearing, and the trial court dismissed both.

On appeal the issues presented for review are: (1) whether a court in which a separate maintenance action was pending may, on a petition filed by a wife’s attorneys prior to the entry of a final decree but subsequent to the wife’s death, order a husband to pay additional attorneys’ fees and expenses to the wife’s attorneys; and (2) whether attorneys’ fees and expenses may be recovered in an independent action at law from a husband, by a wife’s attorneys, for legal services rendered to and expenses incurred on behalf of a wife in a separate maintenance action.

On March 14,1966, Carol M. Spiro filed a complaint for separate maintenance in the Circuit Court of Cook County, Illinois. On July 29, 1966, the defendant husband, Earl M. Spiro, was ordered to “pay to Raymond, Mayer, Jenner & Block, attorneys for plaintiff, the sum of $5,000 as and for temporary attorneys’ fees and suit money.” On March 30, 1967, and prior to the entry of a final decree, Carol Spiro died. Petitioners filed a claim against her estate seeking to recover $12,000 for legal services. This claim was allowed, but due to the fact that Mrs. Spiro died insolvent, the claim was not paid.

On October 13, 1967, petitioners filed a petition in the separate maintenance action for an order requiring the defendant husband to pay them reasonable attorneys’ fees for services performed and disbursements made on behalf of Mrs. Spiro in prosecuting the separate maintenance action as well as to discharge the wife’s obligation to an investigating organization. The petition alleged that various members of the firm of Raymond, Mayer, Jenner & Block expended a total of 377 hours in performing legal services for the wife.

On December 12,1967, petitioners filed a separate complaint at law against defendant, which described the legal services performed in connection with the separate maintenance action and alleged that said services constituted “necessaries” furnished to defendant’s then wife. It was alleged that the reasonable value of the legal services performed for Carol M. Spiro was not less than $17,000, of which defendant has paid $5,000, leaving a balance of approximately $12,000.

On December 18, 1968, the trial court found in a “Memorandum Opinion”: (1) that the action for separate maintenance abated when plaintiff, Carol M. Spiro, died, and the trial court was without jurisdiction to order additional attorneys’ fees and expenses; and (2) that the complaint seeking a judgment for compensation for services rendered and expenses advanced for defendant’s wife should be dismissed because they were not “necessaries” and the defendant was not obligated to pay them. On December 30, 1968, the court entered an order which dismissed both the petition and the complaint. This is the order from which petitioners appeal.

After examining the record and the authorities cited by both parties on the issues, we have concluded that the determinative issue is whether the original action for separate maintenance so abated on Carol Spiro’s death that the trial court was without jurisdiction to order defendant to pay additional attorneys’ fees and espenses for legal services rendered to her prior to her death.

On this issue petitioners contend that Mrs. Spiro brought the suit for separate maintenance in good faith and on probable cause after her husband had abandoned her, and that petitioners “rendered substantial legal services on her behalf, and this court should find that the death of the wife did not deprive the trial court of power to award attorneys’ fees.”

Petitioners’ authorities include Fox v. Coyne, 25 Ill App2d 352, 166 NE2d 474 (1960), where the husband was granted a divorce. There the Illinois Supreme Court had affirmed a portion of a divorce decree of the Circuit Court and reversed the portion of the decree denying alimony and attorneys’ fees for the wife (9 Ill2d 509, 138 NE2d 547 (1956)). The case was remanded with directions to enter an award for alimony and to order the husband to pay reasonable fees to the wife’s attorneys. Upon the remand, before the trial court entered an order on the matter of attorneys’ fees, the wife died. The wife’s attorneys then filed a petition for fees, and the trial court entered an order which directed the husband to pay the attorneys for his wife for services rendered in the trial of the cause. On appeal the Appellate Court stated (p 360), “The proceeding did not abate upon her death,” and affirmed the order.

Petitioners’ citations also include Gunther v. Gunther (Tex Civ App), 301 SW2d 207, 208-9 (1957):

“ ‘In accordance with the rule that the death of either party abates proceedings as regards counsel fees, . . . upon the death of the husband it has been held that the court thereafter has no authority to award counsel fees, and that where the wife was plaintiff a refusal to make an allowance for fees of her counsel is proper. Under particular circumstances, however, it has been held that there may be an allowance for counsel fees after the death of the husband. It has also been held that as regards counsel fees which have been earned at the time of the wife’s death the amount of allowance may be ascertained cmd fixed after such death.’ 27 CJS, Divorce, § 221, p 917. . . . [T]he emphasized part of this quotation from CJS has been followed by courts of various States; in other words, that death of the wife does not take from the divorce court its power to award attorney’s fees which have been earned.
ft

On this point defendant asserts, “The rule that the death of a party in a separate maintenance case before final decree automatically abates the action and deprives the court of jurisdiction over the parties and subject matter was clearly enunciated by the Illinois Supreme Court in Bushnell v. Cooper, 289 Ill 260 (1919).” In that case the Supreme Court affirmed a divorce decree which had been entered after the wife’s death and which required the husband to pay the deceased wife’s attorneys’ fees. There the court stated (pp 264-65):

“The questions presented are, whether or not the court had jurisdiction to enter a decree in the original action after the death of one of the parties, and the method by which such a decree may be reviewed
“Marriage is a personal relation or status created under the sanction of law, and an action for divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action. . . .
“While the present action is one for separate maintenance and differs from a divorce proceeding in that the latter is one for the dissolution of the marriage relation while the former is one in affirmance of it and to enforce the obligations of that relation, they are both, nevertheless, similar in their nature, as the marriage relation constitutes the foundation of the action in each case and the dissolution of that relation extinguishes the subject matter which forms the basis for such an action.”

Defendant argues that “the rule of Bushnell v. Cooper, that the death of a party before final decree, in a divorce or separate maintenance action, abates the action, has been followed in every subsequent decision involving the effect of death of a party prior to final decree.” Additional authorities cited by defendant on this point include Dietz v. Speybroeck, 225 Ill App 133 (1922); In re Estate of Schriver, 289 Ill App 581, 7 NE2d 611 (1937); and Merrick v. Merrick, 314 Ill App 623, 42 NE2d 341 (1942).

In Dietz v. Speybroeck, the court said (p 138) :

“Although the trial judge made docket entries awarding certain real estate to the cross complainant, no decree was formally entered and after her death the court was powerless to do so. . . . ‘. . . The action is one of a personal nature. In the absence of a statute to the contrary, the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject-matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding, before final decree, abates the action.’ ”

In In re Estate of Schriver, the court held that a settlement agreement entered into during the pendency of a divorce proceeding, but not incorporated into the decree prior to the death of one of the parties, was not binding upon the survivor since death abated the action. There the court said (p 584):

“Upon the death of Peter Schriver the proceedings in court abated and the respective parties stood, with respect to the divorce proceeding, as if no supplemental bill seeking a divorce had been filed.”

In Merrick v. Merrick, the court held that an action for annulment abates upon the death of a party thereto and based its ruling upon the doctrine announced in Bushnell v. Cooper. There it is said (p 628):

“We are of the opinion that the rule announced in the Bushnell case, that in the absence of a statute to the contrary, the death of one of the parties to a divorce case or a separate maintenance case abates the action, should be applied in a case like the one at bar, where it is sought to annul a marriage.”

After considering this issue at length and examining the authorities cited, we are not persuaded that the death of Mrs. Spiro, prior to a final decree, abated the action to the extent that the trial court had no jurisdiction to order additional attorneys’ fees and expenses incurred during her lifetime.

The action of the trial court in ordering defendant to pay the attorneys for plaintiff “the sum of $5,000 as and for temporary attorneys’ fees and suit money” shows that the trial court regarded the instant proceeding as within the provisions of chapter 68, § 22, Ill Rev Stats. Nothing in the record shows that the court made any finding or pronouncement that further fees were not to be allowed at the final hearing of the case. The provisions of section 22, which we think should apply here, are:

“The court at any time after service of summons and proper notice to the wife or the husband may make such allowance of temporary alimony, attorney’s fees, and suit money as may appear just and equitable, as in cases of divorce.
“The court may, however, in its discretion, reserve the question of the allowance of attorney’s fees and suit money until the final hearing of the case, and may then make such order with reference thereto as may seem just and equitable, regardless of the disposition of the case.”

Although section 22 makes no provision for the abatement of the proceedings at the death of either party, we agree with the authorities which hold that the basic action for separate maintenance abates when either of the parties dies. However, we believe that undisposed of matters incident to the basic action, such as “attorneys’ fees and suit money,” should not be abated. Section 22 empowers the trial court to reserve the question of the balance of the attorneys’ fees and suit money “until the final hearing of the case, and may then make such orders with reference thereto as may seem just and equitable, regardless of the disposition of the case.” From this we hold that “the question of the allowance of attorney’s fees and suit money” to the wife’s attorneys, for services rendered up to the death of the wife, did not abate at her death, and the trial court had jurisdiction after her death, in its discretion, to enter an allowance for such attorneys’ fees and suit money, as may be just and equitable.

Therefore, in accordance with the foregoing reasons, that part of the order of the trial court which struck and dismissed the petition “for attorneys’ fees and expenses,” filed in the separate maintenance action, is hereby reversed. The matter is remanded to the trial court for further proceedings to determine and allow such additional attorneys’ fees and suit money “as may seem just and equitable” under the circumstances and in accordance with the foregoing pronouncements, and to order defendant to pay the same direct to the parties entitled thereto.

Reversed in part and remanded with directions.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lorenzo B. Bacon, Defendant-Appellant.
    Gen. No. 54,036.
    First District, First Division.
    May 11, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ADESKO

delivered the opinion of the court.

Defendant appeals from his convictions for violation of probation in which he was sentenced to three concurrent terms of eight to ten years. On July 11, 1966, the defendant had been admitted to probation of five years, the first ten months to be served in County Jail. This probation was the result of defendant’s pleas of guilty to three separate charges of unlawful possession of a narcotic drug. On January 9, 1969, the defendant appeared before the trial court on the charge of violation of probation. He was represented by the Public Defender’s Office. The probation officer’s report disclosed that on August 23, 1968, the defendant was convicted of the crimes of attempted murder and aggravated battery, for which he was sentenced to serve fourteen to twenty years and nine to ten years for the respective convictions, which sentences were to run concurrently. It was further disclosed that defendant was convicted of contempt and sentenced to one year. Based on the above convictions for attempt murder and aggravated battery, the trial court revoked defendant’s probation and sentenced him to eight to ten years, the sentences for each narcotic violation to be concurrent and also to run concurrently with the convictions of August 23, 1968. Defendant filed a notice of appeal as to the revocation of probation and the Public Defender was appointed to represent him.

The Public Defender assigned to the appeal filed the record, but now files a motion for leave to withdraw from the case on the ground that after a careful examination of the record, he has concluded that an appeal would be wholly frivolous and could not possibly be successful. He filed a brief in support of the motion in which he concluded that the only possible charge of error which could be urged would be whether the defendant was denied procedural due process of law in the hearing conducted for violation of probation. The procedures required at such a hearing are set forth in chapter 38, section 117-3 of the Ill Rev Stats (1969). According to the case of People v. Price, 24 Ill App2d 364, 164 NE2d 528 (1960), the procedural rights to be accorded a defendant in a revocation of probation are notice to the defendant and an opportunity to be heard, as fundamental requirements of due process. Further, the Price case established that a defendant is entitled to a conscientious judicial determination according to proper procedural methods upon whether the conditions of probation have been violated, which necessitates that the defendant knows of the nature of the charge and is given sufficient opportunity to answer that charge. The record reveals that these requirements were adequately followed by the proceeding conducted in this hearing. We agree with the Public Defender that an appeal on this ground would be wholly frivolous. See also, People v. Headrick, 54 Ill App2d 44, 203 NE2d 157 (1965).

On January 27, 1970, the defendant was notified by this court of the Public Defender’s motion to withdraw and was sent copies of that petition and the brief in support thereof. He was instructed that he had until April 5, 1970, to file any points he might choose in support of his appeal. The defendant has failed to file any such points.

We have thoroughly considered the Public Defender’s brief in support of his motion to withdraw and have made a careful examination of all the proceedings in accordance with the requirements of Anders v. California, 386 US 738 (1967) and People v. Carter, 92 Ill App2d 120, 235 NE2d 382 (1967). We conclude that the appeal is wholly frivolous and that the Public Defender should be allowed to withdraw. The judgments of convictions are affirmed.

Affirmed.

BURMAN, P. J. and MURPHY, J., concur.


text:
    George F. Mueller & Sons, Inc., a Corporation, Plaintiff-Appellant, v. Frank V. Daly, Defendant-Appellee.
    Gen. No. 54,122.
    First District, First Division.
    May 11, 1970.

      J. Edward Jones, of Blue Island, for appellant.
    No brief for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff appeals from orders which denied plaintiff’s motions both to strike defendant’s answer and to dismiss defendant’s counterclaim. On appeal the determinative issue is whether the orders in question are appealable orders.

The defendant appellee filed no brief in this court but did file a motion to dismiss the appeal for the reason that “this appeal is an interlocutory appeal not coming within the provisions of Rule 307 or Rule 308 of the Supreme Court of Illinois.”

In a countermotion, plaintiff moved that this court enter “any judgment order necessary to constitute the orders of March 13, 1969 and of April 3d, 1969 final orders under Rule 366(a)(5), pursuant to the affidavit of the plaintiff’s attorney.” In the affidavit, plaintiff’s attorney states that when the orders were entered he “informed the Court that he desired to appeal from the order overruling his motion to strike portions of the said answer and that he would stand on his motion and take an appeal,” and “if this Court holds that the orders appealed from are interlocutory, they are so, affiant contends, because of the failure of the Court to render the proper order when the motions were overruled and affiant indicated that he intended to stand on the said motions,” and “This Court has authority under Rule 366(a) (5) to correct this, and should do so to give effect to the expressed purpose of affiant.”

Defendant’s motion in this court and plaintiff’s counter-motion were taken with the case.

The denial of a motion to strike or dismiss, of itself, is not a final and appealable order within the purview of the Civil Practice Act or Supreme Court Rules 307 and 308. It is a mere interlocutory order, which does not finally dispose of the proceeding so as to give this court jurisdiction on appeal. See Chicago Housing Authority v. Abrams, 409 Ill 226, 228, 229, 99 NE2d 129 (1951), and People v. Miller, 35 Ill2d 62, 219 NE2d 475 (1966), where it is said (p 67):

“We have uniformly held, both in civil and criminal cases, that no appeal lies from an interlocutory order in the absence of a statute or rule specifically authorizing such review. . . . The order denying the defendant’s motion to dismiss was an interlocutory order. . . . Therefore, unless specific authority can be found authorizing an appeal from such an order the appellate court was without jurisdiction to consider it.”

After examining this record, we think it is obvious that the orders appealed from are not “final orders” but “interlocutory orders” which do not meet the requirements of Supreme Court Rules 307 or 308 to be appeal-able.

As we are not persuaded that the provisions of Rule 366 (a) (5) authorize this court, under the circumstances portrayed here, to enter a judgment or order so as to make the instant orders final or appealable orders, this court is without jurisdiction to hear the merits of plaintiff’s appeal, and it is hereby dismissed.

Appeal dismissed.

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


author: MR. PRESIDING JUSTICE BURMAN

text:
    People of the State of Illinois, Plaintiff-Appellant, v. William Taylor, Defendant-Appellant.
    Gen. No. 54,541.
    First District, First Division.
    May 11, 1970.

      William J. Scott, Attorney General of State of Illinois, of Chicago (James R. Thompson and Joel M. Flaum, Assistant Attorneys General, Edward V. Hanrahan, State’s Attorney of Cook County, Elmer C. Kissane and Matthew J. Moran, Assistant State’s Attorneys, of counsel), for appellant.
    Sam Adam and Edward M. Genson, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURMAN

delivered the opinion of the court.

This is an appeal by the State, from an order entered by a judge in the Criminal Division of the Circuit Court, quashing a search warrant and barring the State from using evidence discovered in the search. That judge held that the quashing of the search warrant and suppression of evidence by an associate judge of the Circuit Court on a motion to suppress in a preliminary hearing was res judicata. The State brought this appeal to the Supreme Court where the defendant moved to dismiss the appeal because the order appealed from did not quash a warrant or suppress evidence. The Supreme Court denied the motion to dismiss because Supreme Court Rule 604 provides that the State may appeal from an order “the substantive effect of which results in . . . suppressing evidence,” and, regardless of the form of the defendant’s motion at the trial, the substantive effect of the order appealed from was to suppress evidence. On its own motion, the Supreme Court then transferred the cause to this court because the order appealed from was not a final judgment and the Supreme Court had no jurisdiction on direct appeal, even though constitutional questions were involved.

There is no dispute on the facts. The State did not appeal from the order entered in the preliminary hearing, but proceeded to present evidence before a grand jury. The defendant was subsequently indicted on the charge of unlawful possession of narcotics. The trial judge did not rule on the merits of the motion to suppress, but held that the granting of the motion by the judge at the preliminary hearing was res judicata. The State then appealed.

The issues in this case concern the effect to be given chapter 38, section 109-3 (e) of the 1967 Ill Rev Stats. It will be helpful to examine the recent history of this section and related section 114-12 (b). Before 1967, chapter 38, section 114-12 (b) provided in pertinent part:

If the motion (to suppress evidence) is granted the property shall be restored, unless otherwise subject to lawful detention, and it shall not be admissible in evidence against the movant at any trial.

The Supreme Court considered this section in People ex rel. MacMillian v. Napoli, 35 Ill2d 80, 219 NE2d 489. In that case, a judge sitting in the Municipal Division of the Circuit Court granted a motion to suppress certain narcotics at a preliminary hearing. At the subsequent trial the Circuit Court judge ruled that the suppression order was not conclusive in the criminal trial and that he would entertain a motion to suppress the narcotics as evidence. The defendant sought a writ of mandamus to compel the judge before whom her criminal case was pending to treat as binding on him the order of the judge at the preliminary hearing granting her preindictment motion to suppress. The court stated at page 81, 219 NE2d at 490:

The plain unambiguous language of section 114-12 (b) is that if a pretrial motion to suppress is granted, the evidence suppressed under such order “shall not be admissible in evidence against the movant at any trial.” If the people are not content with an order granting a motion to suppress, they have the right to appeal from such an order. (Ill Rev Stats 1965, chap 110, par 101.27.) The writ of mandamus will issue.

Subsequently, the legislature amended sections 109-3 (e) and 114-12 (b), effective August 11, 1967. Section 109-3(e) now provides:

During preliminary hearing or examination the defendant may move for an order of suppression of evidence pursuant to Section 114-11 or 114-12 of this Act or for other reasons, and may move for dismissal of the charge pursuant to Section 114-1 of this Act or for other reasons. If any such order of suppression of evidence or dismissal of the charge is allowed and issued in the course of any preliminary hearing or examination, such order of suppression or of dismissal shall be nonfinal, the State may not appeal therefrom, and such order of suppression or of dismissal shall not in any manner bar, affect or be determinative in any subsequent proceedings.

The following was added at the end of section 114-12 (b):

. . . except that, if the order suppressing evidence is nonfinal according to Section 109-3 of this Act, the property shall not be restored and shall not because of such order be inadmissible in evidence at any proceeding other than such preliminary hearing or examination.

These sections now clearly provide that an order of suppression of evidence at a preliminary hearing is non-final; the State may not appeal therefrom, and such order shall not affect the admissibility of the evidence in any subsequent proceeding. The defendant, however, contends, that (1) the Illinois Constitution vests the power to determine procedure in appeals from other than final orders in the Supreme Court, not the legislature, and the Supreme Court has determined that the State may appeal from an order suppressing evidence; (2) the State’s Attorney is prohibited from presenting to a grand jury evidence which has been ordered suppressed; and (3) the order of the judge at the preliminary hearing was res judicata at the subsequent trial.

The defendant first contends that the statutes involved in this case are an improper invasion of the Supreme Court’s rule-making power under Article VI, section 7 of the Constitution of Illinois over appeals from other than final orders. It is apparent from People ex rel. MacMillian v. Napoli, supra, that the Supreme Court of Illinois does not agree. The MacMillian decision was based squarely on the statute. The court held that since the statute provided that once suppressed evidence could not be used again “at any trial” the order of suppression at the preliminary hearing prevented the judge at the trial from considering the motion to suppress anew. The statute thus determined whether the order in the preliminary hearing was binding, and, since it was binding, the State could then appeal under the Supreme Court Rule.

There is, therefore, no conflict between the statute and Supreme Court Rule 604. This rule provides: “In criminal cases the State may appeal only from an order or judgment the substantive effect of which results in . . . suppressing evidence.” Section 109-3 (e) provides that an order of suppression at a preliminary hearing does not result in suppressing evidence before the grand jury or at a subsequent trial, but only at the preliminary hearing. Under MacMillian this provision is clearly within the legislature’s power. Since the substantive effect of the order at the preliminary hearing thus does not result in suppressing evidence at the trial, the State has no right to appeal under Supreme Court Rule 604. The statute is consistent with the Supreme Court rule and does not interfere with the Supreme Court’s rule-making power as the statute in People ex rel. Stamos v. Jones, 40 Ill2d 62, 237 NE2d 495, clearly did.

Under section 109-3 (e) the judge at the preliminary hearing had power to suppress evidence only for the purpose of determining whether there was probable cause to believe the defendant committed the crime with which he was charged. It was therefore proper for the evidence which was suppressed at the preliminary hearing to be subsequently presented to the grand jury.

There is no constitutional right to a preliminary hearing prior to indictment or trial, and where an indictment is returned containing full information of the crime with which an accused is charged, a preliminary hearing is not necessary. People v. Petruso, 35 Ill2d 578, 580, 221 NE2d 276, 277. The State may thus proceed to obtain an indictment in Illinois without proceeding with a preliminary hearing. As stated in People v. Morris, 30 Ill2d 406, 411, 197 NE2d 433, 436:

A preliminary hearing in Illinois is not a ‘critical stage’ where rights and defenses must be raised or lost, and neither is it a proceeding at which pleas are made or received. Rather, the scope and purpose of preliminary proceedings are in general to ascertain whether a crime charged has been committed, and, if so, whether there is probable cause to believe that it was committed by the accused. (141 LP, Criminal Law, sec 171.) Even then a finding of probable cause is not binding upon a subsequent grand jury.

In People v. Kissane, 347 Ill 385, 390, 179 NE 850, 852, the defendant contended that the suppression of evidence in the municipal court was res judicata on the same issue in the criminal court. The Supreme Court held that the first ruling had been upon a mere preliminary motion in a court where the defendant was not brought to trial and in which he entered no plea. The order was not binding at the trial. The rationale of the Kissane decision is still valid even though there are no longer such separate courts in Illinois. Before res judicata or collateral estoppel applies there must be a final judgment of a court of competent jurisdiction. 9 ALR3d 214 (Res Judicata — Criminal Cases). Although both judges in this case were Circuit Court judges, they had different powers and functions. The judge at the preliminary hearing could only determine if there was probable cause that the defendant had committed the crime with which he was charged. Since a finding of probable cause or of no probable cause is not binding upon a subsequent grand jury, we are not persuaded that a ruling on an incidental matter to such a finding — a motion to suppress — should be res judicata on the judge at the trial.

This decision has also been reached in other jurisdictions. Watts v. United States, 402 F2d 676, 684 (DC Cir); People v. Prewitt, 52 Cal2d 330, 340, 341 P2d 1, 6. In Watts, at page 685, then Circuit Judge Burger stated that:

A further difficulty with the claim of collateral estoppel here is that no authority holds that rulings on unappealable pretrial motions matters are proper subjects for collateral estoppel.

In the case at bar, as in Watts, the pretrial ruling of the judge at the preliminary hearing was unappealable. It therefore does not bind the trial judge.

Accordingly, the order of the trial judge quashing the search warrant and suppressing evidence is reversed and the cause is remanded to the trial court for further proceedings consistent with the views herein expressed.

Reversed and remanded.

MURPHY and ADESKO, JJ„ concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    Pete Young, Plaintiff-Appellee, v. Samuel Nineberg, Defendant-Appellant.
    Gen. No. 53,322.
    First District, Fourth Division.
    May 13, 1970.

      Narusis and Stimson, of Chicago (Rolland H. Stimson, of counsel), for appellant.
    Fishman and Fishman, of Chicago (Ronald S. Fishman, of counsel), for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Pete Young, a cabdriver, brought an action against Samuel Nineberg to recover damages for personal injuries sustained in an automobile collision. In a jury verdict, judgment was entered in favor of plaintiff. Defendant appeals and contends that the trial court erred in not directing a verdict in defendant’s favor since the evidence established plaintiff’s contributory negligence as a matter of law.

On December 23, 1963, at 5:30 p. m., plaintiff, who had been a cabdriver for nine years, was transporting two passengers and their grocery packages to 848 West Ainslie Street in Chicago. At this location Ainslie is a two-way street running in an easterly and westerly direction and at the time of the occurrence there was a continuous line of parked vehicles on both sides of the street whose presence allowed one moving lane for eastbound traffic and another for westbound traffic. While the weather was clear, it was dark and there was some snow and ice on the street.

Plaintiff drove his cab east on Ainslie and when he arrived opposite 848 Ainslie (approximately the middle of a long block) he pulled his vehicle over to the right on the south side of Ainslie as far as possible, allowing the right rear door to be opened between two parked vehicles. Plaintiff emerged from behind the wheel on the driver’s side and came around to the right side of the cab and opened the right rear door and assisted one of the passengers out of the vehicle and across the street. The cab’s headlights were in operation, streetlights were functioning and plaintiff testified that the area was well lit. After escorting the passenger across Ainslie Street, plaintiff went back to his cab for the purpose of retrieving his passenger’s box or bag of groceries that was resting on the far right side of the front seat. The other passenger was still in the back seat and did not emerge until after the occurrence.

As he opened the left front door of his cab, he observed defendant’s westbound vehicle approaching from the east at about 15 mph approximately a half block away; plaintiff then reached over the steering wheel and picked up the groceries. At that moment plaintiff turned his head and saw defendant’s vehicle “right on top of him” or “two or three car lengths away.” Plaintiff dropped the groceries and sought to get entirely into his cab. At the time he was picking up the groceries from the front seat, his right knee was on the front seat but his body was only partially in the vehicle with most of his left leg outside. Plaintiff never succeeded in getting his entire body into his vehicle. Defendant’s vehicle struck the open door pushing it against plaintiff.

Plaintiff testified that when he observed that defendant’s vehicle was “two or three car lengths away” or “right on top of him,” plaintiff hurried to get himself completely into his vehicle and could not close the door, “because part of myself was out of the cab, my left leg plus part of my abdomen.” The open door of the vehicle protruded two feet into the westbound lane and left insufficient space for defendant’s vehicle to pass plaintiff’s standing cab.

Defendant’s vehicle struck the open door and came to a stop with its front bumper even with plaintiff’s rear bumper. Plaintiff related that defendant’s vehicle moved approximately half the cab length after impact. The headlights of defendant’s vehicle were functioning and were observed by plaintiff when defendant’s vehicle was a half block away.

Plaintiff sustained contusions and abrasions and required surgical services for a strangulated hernia as a result of his injuries.

OPINION

Defendant argues that the evidence established plaintiff’s contributory negligence as a matter of law and that the court should have directed a verdict in defendant’s favor. In Pedrick v. Peoria Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967) at page 510 the court recited the rule to be applied in resolving the merits of a motion for a directed verdict:

“In our judgment verdicts ought to be directed and judgments n. o. v. entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.”

After assisting the passenger from the cab to the north side of the street plaintiff retraced his steps across the westbound lane of the street. He did not observe defendant’s approaching vehicle at 15 mph one-half block away, until he had reached his cab and was in the process of opening the door. In total disregard of the approaching vehicle, plaintiff continued and persisted in pursuing his objective of opening the door and proceeding to retrieve the packages from the right front seat. This resulted in the cab door being extended two feet into the westbound lane and thus precluded passage of defendant’s vehicle. Plaintiff is charged with the knowledge of an obvious time interval required to open the door, lean over the steering apparatus, pick up and remove the packages. This time consuming and awkward maneuver is manifest since plaintiff related that when he again observed defendant’s vehicle it was “right on top of him” or “two or three car lengths away” and he could not with dispatch extricate himself from his perilous predicament. Plaintiff testified that he had to remove himself partly from the cab interior before he could place his entire body within the safe confines of his cab and that because of the closeness of the wheel to the seat he could not merely pull his left leg into the cab. Under the circumstances plaintiff failed to meet his burden of proving that before and at the time of the occurrence he was using ordinary care for his own safety. We find that the evidence, viewed most favorably to plaintiff, so overwhelmingly favors defendant that no contrary verdict based thereon could ever stand. We therefore reverse and remand the judgment with directions to enter a judgment in favor of defendant.

Reversed and remanded with directions.

DRUCKER and ENGLISH, JJ., concur. .