author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Roosevelt Landgham, Defendant-Appellant.
    Gen. Nos. 52,679, 52,973.
    First District, Fourth Division.
    March 11, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio Tisci, 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 John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

After a jury trial, defendant was convicted of murder and sentenced to serve seventeen to twenty-five years. He appeals.

Defendant contends that in violation of Miranda v. Arizona (1) he was not warned of his constitutional rights before he made oral statements admitted in evidence against him; (2) warnings of his constitutional rights were not repeated to him before he gave an inculpatory oral statement; (3) he did not knowingly and intelligently waive his constitutional rights before he gave the oral statements; (4) a written confession he gave was the product of the circumstances that produced the prior oral statements; and (5), he was not adequately advised of his constitutional rights before he gave the written confession.

At approximately 6:00 in the morning of August 6, 1966, Samuel Jones, 6437 South Bishop in Chicago, found his son, Wendaland, age 8, dead in the alley behind 6439 South Bishop. Mr. Jones carried the body to his front porch and called the police. When they arrived, they inspected where the body was found. There the policemen saw what appeared to be a small pool of blood. From the alley, the policemen followed brown spots on the ground to a gangway between 6445 and 6447 South Bishop. More traces of blood were found on the pavement. After first looking in the rear area of 6445, the officers crossed the yard to 6447 where they discovered more blood on the concrete of the basement door.

6447 South Bishop was the home of Mr. and Mrs. Charles Strong and their five children. Defendant, a stepbrother of Mr. Strong, lived with them. Two sons of the Strongs, Charles, Jr., age 14, Ardell, age 6, and the defendant slept in the basement. The rest of the family slept upstairs. Three policemen went to the front of the Strong home and knocked on the door. Defendant opened it. One- officer, Sergeant Gorman, identified himself and asked defendant if he lived in the building. Defendant said he did. Gorman asked defendant if he and his fellow policemen could look in the basement. Defendant replied, “Come on in.” The officers did not have a search warrant. Sergeant Gorman did not tell defendant why he wanted to look. Defendant took Gorman and two officers to the basement. Everyone else in the house was asleep.

In the basement one of the officers opened the back door and saw what appeared to be bloodstains. A short time later, Mrs. Strong came from the upstairs portion of the house and asked the policemen what they were doing in her home. One officer explained to her that a boy was killed; and that they had reason to believe the boy was killed in her basement. Mrs. Strong asked who the boy was; and on learning his identity, she gave permission for a search of the house. Mrs. Strong then left the basement and went upstairs with her two sons, followed by the defendant.

The policemen made a thorough search of the basement and discovered what appeared to be bloodstains on the refrigerator, on the floor, on five rags on the floor and on a lace curtain. In the upstairs portion of the house, Sergeant Gorman saw a pair of shoes which had brown spots on them. He asked who owned them. Defendant, who was then on a couch playing with a grandchild of Mrs. Strong, said they were his. At this point, because defendant became a suspect, Sergeant Gorman advised him of his constitutional rights. “[I] told Mr. Landgham that he had a right to remain silent, that anything he told me could and would be used against him in trial. I also told him he had a right to have an attorney present during the questioning, and also that if he could not afford an attorney we would see that the State would procure one for him.” In the presence of Mrs. Strong, Sergeant Gorman and Officer O’Neil, defendant said that the day before Wendaland Jones and Ardell Strong had an argument; that Ardell stabbed Wendaland.

A short time later, Sergeant Gorman found a hunting knife in the kitchen covered with reddish-brown stains. The two officers ordered defendant to take off the clothes he was wearing and seized them as evidence. The stained shoes were also taken. Defendant was transported to Area 3 Headquarters of the Chicago Police Department. Mrs. Strong and her son Ardell were taken to the station in another vehicle. There, according to the two officers, defendant changed the statement he made earlier. He said that in the afternoon of the day before, he, Ardell and Wendaland were in the basement of the Strong home. Ardell left. Defendant said that he had an urge, he picked up a knife and struck Wendaland in the chest. A short time after defendant made the inculpatory oral statement, Officer O’Neil called the office of the State’s Attorney of Cook County. An assistant on duty spoke to Mm and asked if defendant was advised of his constitutional rights and whether defendant wanted to give a statement. Officer O’Neil answered both questions in the affirmative, although he did not explain the basis of his assertion that defendant was willing to give a statement. At about 12:00 noon, defendant was taken to the office of the State’s Attorney where he gave a written confession. After the confession was transcribed, defendant corrected and signed it.

Evidence which the court heard on hearing of defendant’s motion to suppress the oral statements and the written confession established that he was born in Mississippi where he attended school to the eighth grade. Although he lived in that state until he was 21, defendant never was gainfully employed there. In Chicago he worked at menial jobs before he moved in with the Strong family. While living with the Strongs, and at the time of his arrest, defendant was employed in a restaurant in the Chicago Loop. When he gave the written confession, he was asked whether he could read and write. Defendant answered, “A little, not much, not too much.” Defendant denied he was warned concerning his constitutional rights; he denied making the written statement; and swore that “[I] told them I did not want to make a statement. . . . That’s right.” After hearing Sergeant Gorman, Officer O’Neil, Mrs. Strong, the Assistant State’s Attorney, the court reporter who corroborated the other witnesses concerning the written confession, and defendant himself, the trial judge found that defendant was adequately warned of his rights and overruled the motion to suppress.

Defendant’s motion to suppress questioned whether prosecution authorities complied with the mandate of Miranda when they took defendant’s oral statements and the written confession. Sergeant Gorman testified that in the Strong residence, the morning of August 6, he gave defendant the Miranda warnings. This testimony was corroborated by Officer O’Neil and, more importantly, by Mrs. Strong, wife of defendant’s stepbrother. By the requisite degree of proof, the evidence established that defendant was adequately warned of his constitutional rights before he was subjected to custodial interrogation. Narro v. United States, 370 F2d 329 (5th Cir 1966).

Implicit in the trial court’s denial of defendant’s motion to suppress was a finding that before he made the inculpatory oral statement at Area 3 Headquarters defendant had been adequately warned of his constitutional rights. Defendant challenges this finding with the contention that the record does not show he was given the Miranda warnings at the Headquarters. In other words, defendant contends that the warnings given him at the Strong home a very short time earlier that morning, should have been, but were not repeated. This contention, however, is answered by People v. Hill, 39 Ill2d 125, 233 NE2d 367, where the court said, 39 Ill2d 125, at 131-132:

It should be made clear that once Miranda’s mandate was complied with at the threshold of the questioning it was not necessary to repeat the warnings at the beginning of each successive interview. To adopt an automatic second warning system would be to add a perfunctory ritual to police procedures rather than providing the meaningful set of procedural safeguards envisioned by Miranda. Gorman v. United States (1st Cir) 380 F2d 158, 164.

Therefore, a second Miranda warning was not necessary immediately before defendant gave the inculpatory oral statement. People v. Sievers, 255 Cal App2d 34, 62 Cal Rptr 841 (1967).

Defendant’s next contention is that the trial judge denied his motion to suppress although there was no evidence that defendant waived his Miranda rights before he gave the oral statements. Defendant points to the three witnesses who gave testimony concerning what occurred the morning of August 6. The witnesses were Sergeant Gorman, Officer O’Neil and Mrs. Strong. The record discloses that none of the three witnesses was asked any question which disclosed what the defendant did or said after Sergeant Gorman gave him the Miranda warnings. As a consequence, the record is silent concerning waiver by defendant of his constitutional rights prior to his giving the oral statements.

Defendant relies on the language of Miranda: 384 US 436, at 475:

If the interrogation continues without the presence of an attorney and a statement is taken, a heavy burden rests on the government to demonstrate that the defendant knowingly and intelligently waived his privilege against self incrimination and his right to retained or appointed counsel.
... a valid waiver will not be presumed simply from the silence of the accused after warnings are given or simply from the fact that a confession was in fact eventually obtained.
Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.

From this, defendant argues that the record must reflect he expressly waived his constitutional rights. We reject this argument. The prosecution is not required to prove that defendant by some expression waived his constitutional rights after they were explained to him prior to custodial interrogation. United States v. Hayes, 385 F2d 375 (4th Cir 1967); Bond v. United States, 397 F2d 162 (10th Cir 1968). “ [A]ny clear manifestation of a desire to waive is sufficient. The test is the showing of a knowing intent, not the utterance of a shibboleth. The criterion is not solely the language employed but a combination of that articulation and the surrounding facts and circumstances.” State v. Kremens, 52 NJ 303, 245 A2d 313, at 317 (1968).

The State attempts to meet the absence of a clear manifestation of waiver by defendant with the argument that the oral statements are proof of waiver. This argument, however, fails in the face of Miranda’s mandate that “[a] valid waiver will not be presumed simply . . . from the fact that a confession was in fact eventually obtained.” 384 US 436, at 475. Therefore, we must also reject the State’s argument that defendant manifested a desire to waive his constitutional rights merely by making the oral statements.

Waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege. Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019 (1938). When there is nothing in the record from which appears a clear manifestation of a desire to waive Miranda rights, oral or written statements taken are inadmissible. Moore v. United States, 401 F2d 533 (9th Cir 1968); Sullins v. United States, 389 F2d 985 (10th Cir 1968). In the record before us there is no proof that the defendant waived his constitutional rights. Therefore, as to the oral statements, the trial court erred in overruling the motion to suppress.

From the absence of waiver defendant proceeds to the contention that the written confession he later gave was tainted by the circumstances that produced the oral statements. It is well settled that a confession which follows one coerced by intimidation, fear or other improper influence is presumed to be the product of the same influence. People v. Sweetin, 325 Ill 245, 156 NE 354. If a first oral confession is coerced, a later written confession is inadmissible. People v. Taylor, 33 Ill2d 417, 211 NE2d 673. A confession taken from an accused subjected to an illegal arrest or an unreasonable search and seizure, is presumed to be the product of the illegality. People v. Johnson, 75 Cal Rptr 401, 450 P2d 865 (1969); Killough v. United States, 315 F2d 241 (DC Cir 1962). On a showing of illegal police conduct, the burden falls on the prosecution to prove that the connection between the illegality and the obtained confession was so attenuated as to dissipate the taint. Collins v. Beto, 348 F2d 823 (5th Cir 1965). The lesson of the cases is that taint is predicated on illegality. Therefore, we must determine whether on August 6, either at the Strong residence or at Area 3 Headquarters, there was illegal police conduct.

Defendant was arrested on probable cause. In one of his first oral statements to the police he accused a six-year-old boy of murder in the attempt to extricate himself from suspicion. At Area 3 Headquarters, defendant was asked by Officer O’Neil to repeat the accusation in the presence of the six-year-old boy. He elected, instead, to make the incriminating statement. Defendant had been adequately advised of his constitutional rights. At the hearing of his motion defendant admitted he understood the advice given him. Although it was error for the trial court to admit testimony of defendant’s oral statements without a showing of waiver, it was not illegal police conduct for Sergeant Gorman and Officer O’Neil to listen to what defendant chose to say.

It is significant that when defendant testified in support of his motion to suppress, he did not claim there was any connection between the oral statements and the written confession. In People v. Raddatz, 91 Ill App2d 425, 235 NE2d 353, an accused was subjected to custodial interrogation without benefit of the Miranda warnings. The State conceded inadmissibility of the oral confession obtained. A short time later, an Assistant State’s Attorney took a written confession. Prior to trial a motion was made to suppress both the oral and the later written confession. At the hearing on the motion, the accused testified that when he was questioned by the Assistant State’s Attorney he thought that having confessed orally, there was nothing else he could do but give the written confession. The trial judge, relying on Westover v. United States, a companion case to Miranda, sustained the motion and suppressed the oral and written confessions. On appeal to this court, we sustáined the trial court.

In the case before us the Miranda warnings were given. No illegal police conduct was used to obtain the oral statements. Contrary to Raddatz, defendant did not claim, nor did he show, that his decision to give the written confession was in any way influenced by what he had said orally. Therefore, defendant’s contention that the written confession was tainted by the circumstances that produced the oral statements is without merit.

Defendant’s next contention is that the written confession was taken from him without adequate warnings of his rights under Miranda. This confession was taken by an Assistant State’s Attorney.

Miss Davis: “. . . Now before I take a statement from you, I will first ask if I told you that you do not have to give a statement, that if you did give a statement, it could be used in evidence against you at the trial.”
Defendant: “Yes.”
Q: “You are entitled to have a lawyer while we take the statement, if you want to give it, and if you can’t afford to hire one, you are entitled to have a lawyer at no cost to yourself. Do you understand that?”
A: “Yes.”
Q: “Now knowing that, do you still want to give me a statement?”
A: “Yes.”
Q: “Has anyone promised you anything to give a statement or said they would hurt you if you didn’t give a statement?”
A: “No.”
Q: “No one has threatened you in any way in order to get you to give a statement?”
A: “No.”
Q: “This statement is voluntary on your part?”
A: “Yes.”
Q: “Without anyone forcing you to give a statement.”
A: “That’s right.”
Q: “Knowing that you don’t have to give the statement?”
A: “That is right.”

After the confession was completed, the court reporter transcribed it from his notes. He returned a short time later with a written copy which was read to defendant by Miss Davis. Defendant followed Miss Davis as she read. Defendant made a correction, initialed the pages and signed his name. The officers present witnessed his signature.

Defendant contends that the warnings given him by Miss Davis did not comply with the requirements of Miranda because she told him “[N]ow before I take a statement from you, I will first ask if I told you that you do not have to give a statement, that if you did give a statement, it could be used in evidence against you at the trial.” Defendant argues that these words did not advise him he had the constitutional right to remain silent. We find no merit in this contention. The words of Miranda do not constitute a ritualistic formula which must be repeated without variation in order to be effective. Words which convey the substance of the warning along with the required information are sufficient. United States v. Vanterpool, 394 F2d 697, at 698-699 (2nd Cir 1968). Consistent with this principle, we recently said in People v. Bosveld, 109 Ill App2d 317, at 320-321, 248 NE2d 697:

Miranda is not a ritual of words to be recited by rote according to didactic niceties. What Miranda does require is meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act. We will not indulge semantical debates between counsel over the particular words used to inform an individual of his rights. The crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being interrogated, impart a clear, understandable warning of all of his rights.

Moreover, in Miranda the court with approval quoted from a letter of the Solicitor General which said: “ ‘ [T]he standard warning long given by Special Agents of the FBI to both suspects and persons under arrest is that the person has a right to say nothing and a right to counsel, and that any statement he does make may be used against him in court. . . .’ ” 384 US 436, at 484. The Miranda opinion discloses frequent use of the word "statement” to mean speech.* * In fact, in an introductory paragraph, Mr. Chief Justice Warren said: “[P]rior to any questioning, the person must be warned . . . , that any statement he does make may be used as evidence against him, . . .” 384 US 436 at 444.

Statement means “[t]he use or process of stating, reciting, or presenting orally or on paper; . . . something stated as a report or narrative of facts, events or opinions; . . Webster’s Third New International Dictionary (1966). Therefore, despite some authority to the contrary, we think it the better view that when prior to custodial interrogation defendant was told that he did not have to make a statement, he was told he had the right to remain silent. After being so advised, defendant was warned concerning his constitutional rights to counsel. He was asked if he understood the advice given Mm. He said he did. Then he was asked, “[N]ow knowing that, do you still want to give me a statement?” Defendant answered “Yes.” Defendant gave the written confession. The questions and the responses given show that defendant understood the warnings and voluntarily relinquished his rights. United States v. Hayes, 385 F2d 375 (4th Cir 1967); Alexander v. United States, 380 F2d 33 (8th Cir 1967). The trial court properly overruled defendant’s motion to suppress the written confession.

In the jury trial, the oral statements and the written confession were admitted in evidence. As we have concluded above, admission of the oral statements without proof of waiver violated defendant’s Miranda rights. Were the oral statements defendant’s only inculpatory utterances, this error would result in reversal of the conviction in this case. However, there are circumstances under which failure to comply fully with Miranda can be harmless. Commonwealth v. Padgett, 428 Pa 229, 237 A2d 209 (1968) . Errors of a constitutional nature can be regarded as harmless, if we are able to declare beyond a reasonable doubt that the error did not contribute to the finding of guilty. Chapman v. California, 386 US 18, 17 L Ed2d 705, 87 S Ct 824 (1967); People v. Smith, 38 Ill2d 13, 230 NE2d 188. When we say the error did not contribute to the finding of guilty, we mean that the erroneously admitted evidence did not prove an element of the crime not established by other properly admitted evidence. In making this declaration “[o]ur judgment must be based on our own reading of the record and on what seems to us to have been the probable impact of the [oral statements] on the minds of an average jury.” Harrington v. California, 395 US 250, at 254, 23 L Ed2d 284, 289 S Ct 1726 (1969). Necessarily, to make this declaration, we must eliminate the other evidence on which the jury could have predicated its verdict. People v. Smith, supra.

This evidence consisted of twelve exhibits and twelve witnesses for the prosecution; one witness, defendant himself, and a group of exhibits for the defense. The prosecution exhibits were photographs, a gray shirt, rags which contained blood, a curtain with blood, a knife, defendant’s pair of shoes which had blood on them and defendant’s written confession in which he identified the knife, described how he stabbed and killed Wendaland Jones.

The first two witnesses for the prosecution were Wendaland Jones’ parents. Beulah Jones, the mother, testified concerning the life condition of Wendaland before he was found dead. Samuel Jones, the father, described how he found the boy’s body during the early morning hours of August 6th. Ineary Strong, wife of defendant’s stepbrother, gave testimony from which the jury could have found that defendant saw Wendaland on August 5, 1966. Mrs. Strong described what occurred the morning of August 6th when she gave police officers permission to search her home. She described to the jury the conversation she heard among defendants, Sergeant Gorman and Officer O’Neil. She said the officers discovered a pair of shoes. When asked who owned the shoes, defendant said they belonged to him. Mrs. Strong said that it was then that Sergeant Gorman warned defendant of his constitutional rights. A short time later, according to Mrs. Strong, Officer O’Neil found a knife in her kitchen.

Officer O’Neil was the only other witness who described oral statements the defendant made the morning of August 6th. His testimony was more detailed. He described his arrival at the Jones’ residence. O’Neil said that from the place where deceased was found, to the rear of 6447 South Bishop, he and his fellow officers followed what appeared to be bloodstains. O’Neil said that when they knocked on the door of the Strong residence, defendant answered and admitted them to a basement where he saw what appeared to be bloodstains between the two rear doors, on some rags, on a lace curtain, near and on a refrigerator, and on some clothing. After the pair of shoes with what appeared to be bloodstains on them was found, defendant said they were his. O’Neil’s testimony concluded with his description of defendant’s oral statements.

The other eight witnesses for the prosecution were two crime laboratory officers who identified the exhibits taken from the Strong residence; the official court reporter who took defendant’s written confession; the Assistant State’s Attorney, Miss Barbara Davis, who told the jury how she took the written confession; a coroner’s pathologist, Dr. John Belmonte who described the injuries found on Wendaland Jones and gave the cause of death as a laceration of the heart from a gaping wound in the chest; and finally, three laboratory technicians who identified as blood the brown spots which Officer O’Neil testified he saw on the lace curtains, on the rags, including those on defendant’s pair of shoes.

Defendant then testified. He told the jury of his birth in Mississippi, his limited education there, and his move to Chicago where he held menial jobs up to the time of his arrest. He corroborated prosecution witnesses concerning the arrival of the police at the Strong home on August 6th. He denied making the oral statements attributed to him by Officer O’Neil at Area 3 Headquarters; and he denied giving and signing the written confession.

The written confession in every material respect was almost identical in its inculpatory aspects to the oral statements defendant made during the morning of August 6th and which Mrs. Strong and Officer O’Neil described to the jury. Thus, in the trial of the charge against defendant, the oral statements did not prove any element of the crime that was not established more strongly by other competent evidence. Therefore, when we compare the overwhelming evidence of defendant’s guilt with the evidentiary worth of the testimony concerning defendant’s oral statements heard by the jury, we have no hesitancy in declaring beyond a reasonable doubt that admission in evidence of the oral statements without adequate proof of waiver was harmless error. Judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.

       384 US 436, 16 L Ed2d 694, 86 S Ct 1602 (1966).

       For recent examples of the “articulation and the surrounding facts and circumstances” from which this court found waiver of constitutional rights, see People v. Johnson, 112 Ill App2d 148, 251 NE2d 393 and People v. Zepeda, 116 Ill App2d 246, 253 NE2d 598.

       See, for example 384 US 436, at 475: “An express statement that the individual is willing to make a statement and does not want an attorney followed closely by a statement could constitute a waiver.”

       United States v. Fox, 403 F2d 97 (2nd Cir 1968); but see the dissenting opinion of Judge Moore, 403 F2d 97, at 104.

       For cases in which the word “statement” is used in this sense, see State v. Renfrew, 280 Minn 276, 159 NW2d 111 (1968); Penn v. Commonwealth, 210 Va 242, 169 SE2d 427 (1969); State v. McKnight, 52 NJ 35, 243 A2d 240 (1968); State v. Bonner, 252 La 200, 210 So2d 319 (1968); Abbott v. Beto, 409 F2d 1324 (5th Cir 1969); People v. Raddatz, 91 Ill App2d 425, 235 NE2d 353.

       See Soolook v. State (Alaska), 447 P2d 55 (1968); People v. Doherty, 67 Cal2d 9, 429 P2d 177 (1967); Duckett v. State, 3 Md App 563, 240 A2d 332 (1968); Guyette v. State (Nev), 438 P2d 244 (1968); State v. Gillespie, 100 NJ Super 71, 241 A2d 239 (1968).


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Appellee, v. Sanford Amsterdam, Appellant.
    Gen. No. 52,955. (Abstract of Decision.)
    First District, Fourth Division.
    March 11, 1970.


author: MR. JUSTICE DRUCKER

text:
    Fred Maynard, Plaintiff-Appellant, v. Irving Davis Company, Defendant-Appellee.
    Gen. No. 53,598.
    First District, Fourth Division.
    March 11, 1970.

      Karno & Schey, of Chicago (Alan L. Jonas, of counsel), for appellant.
    Stanton & Healy, of Chicago (Edwin A. Strugala, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff’s cause of action against Bill McMillan, a co-defendant, was based on a battery committed by Bill McMillan against him. Plaintiff’s claim against the defendant was by reason of Bill McMillan’s intoxicated condition which was allegedly brought on either in whole or in part by the sale or gift of alcoholic beverages by the defendant to Bill McMillan. (Illinois Dram Shop Act, Ill Rev Stats 1965, c 43, § 135.) The jury returned a verdict in favor of the plaintiff and against the defendant, Bill McMillan, in the sum of $6,750 and also returned a verdict of not guilty in favor of the defendant Irving Davis Company (hereinafter referred to as the defendant).

Plaintiff appeals from an order denying his motion for a directed verdict against defendant and from the order denying his motion for judgment in his favor notwithstanding the verdict of the jury. On appeal, plaintiff also urges that the trial court improperly instructed the jury by refusing to give his instruction No. 20.

Testimony of Fred Maynard, the plaintiff:

On Sunday, May 22, 1966, he went to Santa Fe Park to watch stock car races. As he was watching the races, he had a conversation with a girl and asked her if she wanted a beer. He bought her a beer and they sat down at a nearby table. The beer was in a milk shake size dixie cup. They sat at this table for ten or fifteen minutes. Bill McMillan’s name was never mentioned during the conversation. He had seen McMillan race before but he did not know him personally.

When he first saw McMillan, the girl was still sitting next to him. McMillan walked over to them along with two other fellows. He observed that McMillan had bloodshot eyes and was pale. The girl introduced him to McMillan. McMillan’s conversation with him was not friendly. The girl remained seated next to him.

McMillan left after this first conversation and walked over to the beer stand and bought a beer. He saw McMillan drink it. He was still talking to the girl while McMillan drank his beer. After McMillan finished his beer he again walked over to the table and said a couple of words to the girl. He did not remember what was said. McMillan left and bought another beer.

After finishing the second beer, McMillan and the other two fellows came back over to him. As McMillan approached him this third time, he noticed that McMillan “looked real mad and he was sort of weaving when he walked.” The girl was sitting next to him. McMillan said, “You better get out of here, fellow,” and then hit him in the face. His nose and face were bleeding. He saw McMillan hit the girl in the face with his fist before he went to the washroom to clean up. After he cleaned up, he immediately left the racetrack. In his opinion McMillan was intoxicated the first time he saw him.

He then described his injuries and doctor’s fees.

On cross-examination he testified that McMillan “had gotten pushed out of the race and he was really mad.” Another driver had forced him out in some illegal manner. He had seen this happen. The girl also told him that McMillan had been forced out of the race.

Testimony of Carl Werner, called by the plaintiff:

He was employed as a bartender by the defendant during May 1966. On May 22, 1966, he did not see any altercation between plaintiff and defendant. He knew Bill McMillan but not personally. He did not know the plaintiff well enough to talk to him. If he was tending bar on May 22 at Santa Fe Park, he probably sold McMillan some beer.

He did not have a clear memory of May 22, 1966. He could not remember what day in the week May 22, 1966 was, nor could he specifically remember selling Bill McMillan any beer that night. He could not recall seeing any fight.

Opinion

Plaintiff contends that the trial court erred in refusing to grant his motions for a directed verdict or judgment notwithstanding the verdict. He argues that a review of all of the testimony pertinent and relative to the issue of defendant’s liability is uncontradicted and unimpeached and, therefore, the trial court should have directed a verdict in his favor at the close of all the evidence or, in the alternative, granted his motion for judgment notwithstanding the verdict.

In Galarza v. Melter, 116 Ill App2d 173, 253 NE2d 469, the trial court directed the jury to find in favor of plaintiff on the question of liability when defendant did not proffer any evidence but rested after plaintiff’s case was presented. This court reversed and remanded the cause holding that “disputed inferences could have been drawn from the evidence and the issue of liability should have been submitted to the jury.” We found that:

“A directed verdict is proper if all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors the movant that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria Eastern R. R. Co., 37 Ill2d 494, 229 NE2d 504 (1968). In Ladd v. Ruck, 108 Ill App2d 379 (1969), the court stated at page 382:
“ ‘The Pedrick rule does not require that verdicts be directed or motions notwithstanding verdicts be granted merely because a defendant has failed to introduce evidence in his own behalf or has failed to dispute facts presented by the plaintiff.’
“Facts may be undisputed or a defendant may have failed to introduce evidence in his behalf, but it does not follow that issues are, therefore, uncontroverted. Ladd, supra. In Genck v. McGeath, 9 Ill App2d 145, 132 NE2d 437 (1956), where defendant offered no evidence, the court said at page 153:
“ ‘Even where there is no dispute in the evidence but where inconsistent conclusions may legitimately be drawn, the question is one for the jury. Panczko for Use of Enright v. Eagle Indemnity Co. of New York, 346 Ill App 144; Minters v. Mid-City Management Corp., 331 Ill App 64.’ ” See also Ladd, supra.

In the instant case, the facts on which plaintiff relies do not necessarily lend themselves to the conclusion that McMillan was intoxicated, even though he testified that in his opinion and from his observations, McMillan was intoxicated. The jury, basing their conclusion on the same facts, could conclude otherwise. The jury might reasonably have inferred from plaintiff’s evidence (1) that Bill McMillan’s bloodshot eyes and pale features were caused by his having just raced; (2) that Bill McMillan was not intoxicated from drinking beer but was rather “mad” and angry at being illegally forced out of the race by another driver; (3) that the girl with the plaintiff was Bill McMillan’s girl friend since she introduced McMillan and the plaintiff and at the first confrontation defendant acted unfriendly and “smart” toward plaintiff; and (4) that McMillan was provoked by the conduct of his girl friend since he had some words with her and struck her in the face.

The cause was properly submitted to the jury and its verdict is supported by the evidence. Therefore, we find that the trial court properly denied plaintiff’s motions for a directed verdict and judgment notwithstanding the verdict.

Plaintiff also contends that the trial court erred in refusing to give his jury instruction No. 20, IPI No. 5.01, which if given would have informed the jury that it could infer that testimony of witnesses not called would be adverse if the witnesses were under the control of the party and if the witnesses were not equally available to the adverse party. Plaintiff argues that this instruction was tendered because defendant’s counsel repeatedly stated in his opening and closing arguments that the defendant was not present at the time of the occurrence and knew nothing about it, but at no time did the defendant produce any agent, servant, employee or officer of the company to testify that they knew nothing about this incident.

From our review of the record, the only employee of the defendant who may have served beer to McMillan and plaintiff during the evening of May 22, 1966, was Carl Werner, and he was called as a witness for the plaintiff. However, Werner testified that he did not see any altercation between the plaintiff and McMillan, nor could he specifically remember the incidents of May 22, 1966, including the serving of beer to McMillan.

Within this record the plaintiff has failed to show that any other employee (besides Werner), officer or agent employed by the defendant was present or had any knowledge relevant to the plaintiff’s cause of action. Furthermore, there is no showing by plaintiff that any witness or witnesses having relevant knowledge of this occurrence were within defendant’s power to produce at the time of trial and that defendant failed to produce them without justification. The trial court should have a wide discretion in the giving of this instruction (Hildebrand v. Baltimore & O. R. Co., 41 Ill App2d 217, 190 NE2d 630) and we find that in the instant case the trial court properly exercised its discretion in refusing to give the requested instruction.

The judgment is affirmed.

Affirmed.

STAMOS, P. J. and ENGLISH, J., concur.


author: RYAN, J. STOUDER, J.

text:
    Schipper & Block, Incorporated, an Illinois Corporation, Plaintiff-Appellant, v. Carson Pirie Scott & Company, an Illinois Corporation, Defendant-Appellee.
    Gen. No. 68-87.
    Third District.
    March 20, 1970.
    Rehearing denied April 16, 1970.

      STOUDER, P. J., dissenting.
    Letter, Newlin, Fraser, Parkhurst & McCord, of Peoria, and Wilson and Mcllvaine, of Chicago, for appellant.
    Davis, Morgan & Witherell, of Peoria, and Sidley and Austin, of Chicago, for appellee.
   RYAN, J.

Plaintiff is the owner and lessor of a department store building which is leased to the defendant under a 99-year lease which commenced in 1914. It is a net lease with the lessee paying taxes and insurance on the property. Based on an appraisal of the building and land acceptable to the lessor and lessee in 1914, the lease provides for a rental figure of 6% of the appraised value of the land and buildings at the beginning of the period, plus 1% of the appraised value of the buildings. This rent was fixed for ten years. The lease further provides for appraisals to be made for each succeeding 10-year period, with the same percentage rent formula to apply to the new appraisals. Under the lease, each party is required to appoint one appraiser, who must be competent, judicious and disinterested, and who is to appraise the value of the property involved in the lease. If the two appraisers cannot agree upon the value of the property, they are to select a third appraiser and the finding of the three appraisers, or a majority of them, shall be considered binding. In the case no two of the three appraisers agree upon the value, their appraisals shall be averaged.

The original lease requires that the appraisers answer two questions:

“1st. ‘What, in your candid judgment, is the present fair cash value, as a whole, of the several lots, pieces and parcels of ground demised, including the buildings and improvements thereon?’
“2nd. ‘What, in your candid judgment, is the present fair cash value, as a whole, of the buildings and improvements on several lots, pieces and parcels of ground demised?’ ”

In 1924, the lease was amended to provide that in making appraisals subsequent to 1934, the appraisers shall not take into account the then value of any permanent additions or improvements, as distinguished from repairs or replacements, placed upon the premises by the lessee and paid for by the lessee. It is further provided by that amendment that the appraisals of the building for rental purposes shall never be less than its stated value in 1914 which was $502,000.

In attempting to comply with the appraisal terms of the lease for the decade commencing in 1964, each party selected an appraiser. When these appraisers failed to agree on the value, they selected a third appraiser. The trial court found, among other things, that the defendant’s appraiser and the third appraiser agreed and that such agreed figure controlled under the lease.

This action was brought by plaintiff to obtain a construction of the lease, to set aside appraisals made for the purpose of establishing the rent for the 10-year period commencing in 1964, and to have the rent established by the court. After a trial, the trial court entered a decree dismissing the Complaint for want of equity, from which this appeal is taken.

Of the issues presented for review, the more important are: whether one of the appraisers was disqualified because he was not disinterested as required by the lease; whether the appraisers had great latitude in construing the lease; whether the appraisals are invalid as a result of mistake, including mistake in the construction of the lease, and the nature of the relief to be granted if it should be determined that the appraisals are invalid.

For various reasons which are hereinbelow set forth, we feel that the decision of the trial court in this case must be reversed. First of all, the defendant’s appraiser, Walter Kuehnle, was not disinterested as required by the lease. Plaintiff’s objection on this point is well taken and should have been heeded by the trial court. Accordingly, his appraisal cannot be considered as binding under the lease whether standing alone or in conjunction with the third appraiser, or for purposes of averaging. The facts are that Kuehnle had appraised the department store building for the defendant to assist the defendant in securing a reduction in assessed value in 1960 and 1961, and again in 1964 at the same time the appraisal was being made under the lease. During the period 1959 through 1964, Kuehnle or his firm received $34,100 compensation from the defendant for various services, exclusive of services in connection with the lease appraisal. The tax appraisals were signed by Mr. Kuehnle and filed with the Peoria County Board of Review. The purpose for taking an appraisal before the Board of Review is to establish as low a value as possible in order to obtain as low a real estate tax as possible. Furthermore, neither Kuehnle nor the defendant disclosed this fact to the plaintiff, and the fact was not discovered by the plaintiff until Kuehnle’s deposition was taken in this suit. Thus, when Kuehnle was selected to appraise the property in conjunction with the lease, he had already formed preconceived opinions as to value under circumstances which militated in favor of low value and had made these opinions a matter of record, all without disclosure to the plaintiff.

The trial court in its order found that the appraisers were “qualified in their profession and were unbiased.” In a supplemental opinion the trial court stated: “The only charge of bias made in the Complaint related to the appraiser Kuehnle and the thrust of the evidence was that having appraised the property on previous occasions he had a preconceived notion of their value. Having considered the cases cited, the court is not of the opinion that this was sufficient to disqualify Kuehnle from giving a disinterested opinion of appraisal nor would it cause him to be so biased as to require his opinion to be set aside or disregarded. It was evidence which went to the weight of his testimony and nothing else.”

The prior relationship of the appraiser Kuehnle with the defendant and the property involved was not a matter that went to the weight of the testimony as the trial court’s opinion stated. This relationship concerns his qualification as an appraiser. The terms of the lease provide: “No person shall be competent to act as an appraiser for either of said parties except it be a person competent, judicious and disinterested.” If such a relationship as Kuehnle had with the defendant and the property involved made him an “interested” person, then he was not competent to act as an appraiser by virtue of the provisions of the lease.

These provisions were special qualifications contained in the lease and govern the qualifications which the appraisers in this case must possess. We are not concerned herein with the general law relating to disqualification of appraisers, but with the special qualifications of the appraisers set forth in the lease. The cases of Giddens v. Board of Education, 398 Ill 157, 75 NE2d 286 and Sebree v. Board of Education, 254 Ill 438, 98 NE 931, which held that prior employment by a party involved did not disqualify an appraiser are not in point. In those cases the leases involved did not require that the appraisers be “disinterested.”

Disinterested is defined as: “Not having any interest in the matter referred to or in controversy; free from prejudice, partiality; impartial or fair-minded; without pecuniary interests; not previously interested; not biased or prejudiced.” 27 CJS 314. The term “distinterested” does not simply mean a lack of pecuniary interest but it requires the appraiser to be one not biased or prejudiced. Words and Phrases, Disinterested.

Bias and prejudice are conditions of the mind. City of Naperville v. Wehrle, 340 Ill 579, 173 NE 165; In re Adoption of Richardson, 251 Cal App2d 222, 59 Cal Rptr 323. Although the terms are often used interchangeably or together to indicate a single state of mind, they are not exactly synonymous. Littrell v. State, 22 Okla Crim 1, 209 P 184, 186. “Bias” in its legal acceptation, means only a leaning toward one of the parties rather than the other; and “prejudice” imports the formation of a fixed anticipatory judgment as contradistinguished from those opinions which may yield to evidence. “Prejudice” means a prejudging of a case from any cause. It means a settled or fixed opinion. Words and Phrases, Prejudice.

Kuehnle by his prior appraisal of the property for tax purposes had prejudged the value of the property. He had formed a conclusion as to the value thereof prior to his appointment as an appraiser.

In Scott v. Arden Farms Co., 26 Del Ch 283, 28 A2d 81, the value of stock of dissenting stockholders was to be determined by appraisers who were “disinterested persons.” One Davis had previously advised Scott, one of the dissenting stockholders, and had given Scott a detailed report in which he had computed an “appraisal valuation” of complainant’s stock. For purposes of an appraisal proceeding to determine the value of the stock, Scott subsequently designated Davis as an. appraiser. The court held that Davis was not a “disinterested” person. The language of the court at page 86 is quite appropriate in our case:

“It by no means follows from the facts that Davis would necessarily act unfairly in appraising the stock. But the risk that his judgment might be influenced, consciously or subconsciously, by his previous conclusions and recommendations, or by a tendency to attempt to justify them, is such that he should not be expected to act with the freedom of mind required. In consequence, he is not a ‘disinterested’ person.”

In Kraft v. Tenningkeit, 204 Iowa 15, 214 NW 562, the statute provided that the court shall appoint a commission of one or more of “disinterested” surveyors to locate lost, destroyed or disputed corners and boundaries. The commissioner appointed had previously acted, unknown to the plaintiff, for the defendant in making a survey of the premises in question. The court stated at page 563:

“The plaintiffs were entitled to have a commissioner appointed who had not formed or expressed an opinion in relation to the subject matter.”

The court continued on the same page:

“May it be said that a commissioner, who, prior to his appointment, acted in the very matter for one of the litigants, is absolutely free and mentally untrammeled by his former findings and would be uninfluenced by his opinion based upon his prior investigations and mathematical calculations?”

Many factors may indicate that an appraiser is not disinterested. Even factors which considered individually and standing alone might not indicate interest might combine to do so according to the circumstances of the case. Repeated employment as an appraiser for one of the parties, while not conclusive, may be evidence of a disqualifying interest. Farmers Conservative Mut. Ins. Co. v. Neddo, Ill Ind App 1, 40 NE2d 401, 408 (1942); Orr v. Farmers Mut. Hail Ins. Co. of Missouri, 356 Mo 372, 201 SW2d 952 (1947); Note, 104 ALR 563, 566 (1936). Concealment or failure to disclose facts which might cause the other party to question the appraiser’s disinterestedness at the time of his appointment is evidence of bias. Coon v. Nat. Fire Ins. Co. of Hartford, 126 Misc 75, 213 NYS 407, 410-12 (S Ct 1925); Bradshaw v. Agricultural Ins. Co., 137 NY 137, 32 NE 1055 (1893).

The repeated employment of Mr. Kuehnle by the defendant, the substantial compensation that was paid pursuant to this employment, the nondisclosure of this employment by the defendant, the nature of this employment which was to secure a tax reduction by establishing a lower appraised value, and the preconceived opinion thus formed as to the value of the property in question are all factors which combine to negate the condition of disinterest as required by the lease.

A second major error in this case involves the construction of the lease itself. The lease as amended requires that “. . . the. appraisers . . . shall not take into account the then value of any permanent additions or improvements, as distinguished from repairs or replacements, placed upon said buildings by the lessee and paid for by the lessee; provided, however, that the appraisal of said buildings for rental purposes shall never at any time be less than the several amounts set forth on page 13 of said lease, reference to which is hereby had for greater certainty.” The evidence disclosed that many changes had been made to the building by the lessee. The trial court allowed the appraisers complete discretion in construing the meaning of the lease as they saw fit with regard to these changes. This was error. The appraisers called for under the lease are neither judges nor arbitrators. Their function is to appraise value pursuant to the lease. They have no authority to construe the lease. In the event of disagreement or uncertainty, the court has the final authority to determine the legal significance and meaning of the language of the lease. Union Trust Co. v. Board of Education, 348 Ill 256, 180 NE 819 (1932).

In this case, both Kuehnle and the third appraiser, Newcombe, erred in misconstruing the meaning of the above-quoted language of the lease. They also erred in applying different methods of valuation to the building and the improvements. They further erred in their method of allocation of items as between repairs or replacements and permanent additions. They further erred as to their understanding of the meaning of the words “then value.” A correct understanding and application of the lease is a condition precedent to a valid appraisal.

From the provisions of the original lease and the two questions therein which the appraisers are required to answer, it is apparent that the appraisers’ authority under the lease is to determine value and they are to determine the value of the various parts which they appraise “as a whole.” They are given wide discretion in determining value but the lease does not give to the appraisers any authority to construe the terms of the lease. We think that the trial court erred in holding that “the appraisers had great latitude in construing the lease.”

In Marceron v. Chevy Chase Services, Inc., 258 F2d 155, the lease provided that the rent shall be determined by a committee of appraisers whose appraisal shall be binding upon the lessor and lessee as to the question of rental value of the leased premises. The court said at page 158:

“Here we are dealing with appraisers appointed solely to appraise value of real estate and its rental value. To be sure they had to make a preliminary or tentative interpretation of their instructions and powers as defined in the leases. But that does not carry with it power to do so with finality. The parties could have vested such final authority in third persons, but it is not to be implied from a grant of authority to appraise value.
“Thus it appears that the appraisers’ construction of the formulae can properly be reviewed by the trial court and by us. The appraisers’ construction of the formulae, as distinguished from appraisal of value, being ultra vires, is clothed with no presumption of correctness. The trial court’s affirmance of the appraisers’ determination is likewise no obstacle to de nova construction in this court, first because the trial court’s decision was based partly on an erroneous ground, namely that the appraisers’ interpretation of their own charter of authority was conclusive on the parties; and second, because unlike the question of land or rental value, it is one purely of law and involves only construction of a written instrument.”

We think that the lease requires that the appraisers first value the property as it stands at the time of the appraisal, including all repairs, replacements, permanent additions and improvements. That is to say, that they arrive at a valuation “as a whole.” Secondly, the appraisers must then deduct the “then value” of the permanent additions or improvements as distinguished from repairs and replacements. In arriving at the “then value” of the permanent additions or improvements, the appraisers must consider the additions or improvements as a part of the whole and not as separate and independent items standing alone and separate and distinct from the entire structure. If this is done, each part will have a value as it relates to the whole and the sum of the parts will not be found to exceed the whole.

We further feel that these appraisers erred in their determination of what was a repair or replacement as distinguished from what was a permanent addition or improvement. We believe that the lease clearly means that only those permanent additions or improvements which do not constitute repairs or replacements are to be deducted from the appraised value of the building. Thus, although a deduction would be in order for the then value of an item which was not a part of the original structure, consideration would have to be given to that portion or that part of such an item, if any, which constitutes repair or replacement of a part of the original building. Under the 1924 Amendment, repairs and replacements are not to be deducted from the appraised value of the whole building. Permanent additions and improvements are only to be deducted to the extent that they do not constitute repairs or replacements. It is the opinion of this court that the parties should reopen their negotiations under the lease and begin anew the appraisal procedures called for in the lease under these guidelines. If disinterested appraisers are selected and these guidelines are followed, the rent can be determined under the lease and the court will not be required to either fix the value of the property or the amount of the rent.

The function of appraisers under a lease provision like the one involved in this case is limited to the determination of the value of the property. Appraisers are not arbitrators. Norton v. Gale, 95 Ill 533 (1880); Sebree v. Board of Education of Chicago, 254 Ill 438, 446, 98 NE 931 (1912). So long as the appraisers are not disqualified and act within the scope of their authority under the proper construction of the lease, their appraisal will be binding in the absence of mistake or fraud. The appraisers’ ultimate determination of value will not be set aside merely because it might appear to a Court to be too high or too low, but it will be set aside (1) upon a showing of a fundamental mistake more than mere error of judgment, (2) disqualification of the appraisers, (3) fraud or (4) undervaluation such as to give rise to an inference of bad faith, partiality or constructive fraud. Union Trust Co. v. Board of Education of Chicago, 348 Ill 256, 266, 180 NE 819 (1932); Board of Education v. Frank, 64 Ill App 367, 373 (1896); Giddens v. Board of Education of Chicago, 398 Ill 157, 168, 75 NE2d 286 (1947). Citing numerous cases, our Supreme Court stated in the Union Trust Co. v. Board of Education of Chicago case at pp 266-267:

“It has been repeatedly held that a mistake of appraisers in giving effect to an element of value not within the scope of the appraisal nullifies the appraisal since the result is an appraisal of a subj ect matter other than that submitted.”

Some of the fundamental mistakes made by the appraiser Kuehnle in this case were: He used one method of fixing value for the building and an entirely different method of fixing value for what he believed to be the lessee’s permanent improvements, with the result that the sum of the values of these items which he felt constituted permanent improvements exceeded the value he attributed to the entire building with the permanent improvements attached. He further erred in treating as permanent additions or improvements things which are primarily or entirely repairs or replacements. He treated virtually the entire work done on the exterior of the building as a permanent addition or improvement though the work, aside from beautification and modernization, represented no change in actual function or utility of the exterior save the elimination of natural light and ventilation. Under the formula which we have previously elaborated, this exterior work would have to be regarded, to a degree, at least, as repair and replacement. There is no dispute that the exterior was badly deteriorated before this work was done. We do not feel the necessity for the court to make the appraisal nor to categorize by physical description and separation each and every item of repair, replacement, permanent addition or improvement. The appraisers can and should perform this function along the guidelines set forth above.

The appraiser Newcombe testified that he attempted to visualize the building as though it were “kept alive” in its original 1914 condition without change or alteration. He felt that such was the meaning of the lease. Such a construction is erroneous. Newcombe further erred in taking into consideration as a depreciating factor the influence of the lease itself which required reappraisals every ten years. This was improper and unfair to the lessor. Such a construction was condemned by our Supreme Court in Springer v. Borden, 210 Ill 518, 71 NE 345 (1904) and the Giddens case previously cited. In the Springer case, the court said at page 522:

“According to the theory of defendant, a lease under very favorable terms to the lessee may be made still more favorable to him by showing that the terms of the lease depreciate the value of the reversion. A reduction in the value of the reversion would be equal to a reduction of rent, and the reduction of rent would reduce the value of the reversion, and so on in endless succession. The rule contended for is wholly impractical. ... No such plan for fixing the rental could have been anticipated by the parties.”

The rent under the Kuehnle and Newcombe appraisals is $63,940 per year, whereas the rent for the preceding 20 years which the parties had agreed to, based on 1%% of the sales, has been from $140,000 to $165,000 per year. The rent under these appraisals is less than the 1924 rent of $75,000 per year and is only $5,000 more than the rent for the decade which began in 1913. A comparison of these rents give cause to the court to suspect that errors have been made. We have indicated above what we believe those errors to be. This is not to say that fraud, either actual or constructive, has been shown or is required to be shown by the plaintiff in order to invalidate the appraisals. In view of the rulings that have hereinabove been made, we need not pass on such matters.

Other minor points were raised. The trial judge suggested conduct on the part of the plaintiff that would tend to preclude plaintiff from attempting to separate repairs and replacements from permanent additions and improvements. This was a suggestion of the court and was alluded to in its opinion. The trial court made no finding of estoppel. We find no conduct on the part of either party to this lease, however, which would operate to bar either party from the segregation of those items set forth in the lease. The fact that the parties agreed to certain rentals on previous occasions without the necessity of resorting to the appraisal method spelled out in the lease does not bar them from resorting to the appraisal method when simple negotiation failed to resolve the rental for the current decade. Neither does the failure to keep a running account of repairs and replacements operate as an estoppel since the lease does not require this.

Evidence was offered by the plaintiff concerning the lease to the Bergner department store across the street. Such evidence to similar property in such close proximity was incorrectly excluded by the trial court. Such evidence is both relevant and material to a consideration of value. While it is not the function of the court to spell out for the appraisers in detail what matters they should consider, nor is it for the court to interfere with the methods used by the appraisers, there is no good reason why this court should avoid an opportunity to clarify and remedy misapprehensions and misunderstanding concerning this case in order that future litigation may be avoided and the matter may be resolved. In that connection, it is fair to say that the Bergner lease is relevant to the subject of this appraisal and could properly be considered by the appraisers in arriving at their decision. They would have to decide what weight should attach to this and the other factors.

Plaintiff has asked for an award to cover its attorneys’ fees in this litigation. The lease provides that the lessee will pay lessor’s attorneys’ fees incurred as a result of any “default” on the part of the lessee. Although mistakes have been made in the resolution of this matter, the parties have attempted to utilize the procedures set forth in the lease to resolve the rent question. We find no actual “default” on the part of the lessee and accordingly we are not disposed to make an award of attorneys’ fees in this case.

It should further be pointed out that contrary to the statements of Kuehnle and Newcombe and contrary to the finding of the trial court, there was no actual agreement on value between Kuehnle and Newcombe. The evidence showed that they did not reach agreement on the value of the building. What they reported was that the full fair cash value of the building was $502,000 because this was the minimum value called for in the lease. In fact, their appraisals were something less than this figure and were not in agreement with each other. Because of the lack of disinterest on the part of Kuehnle and because of the fundamental mistakes that were made by both Kuehnle and Newcombe, it would likewise be improper to average the appraisals as provided in the lease to arrive at a figure.

Defendant urges that the decisions of the trial court ought to be sustained unless they are against the manifest weight of the evidence. The plaintiff has correctly pointed out that such rule is not the test in this case. The evidence concerning the appraiser’s interest is largely undisputed. The controversy involves the application of the law relating to disqualification of appraisers and the manifest weight rule has no application. First Nat. Bank v. Dierking, 87 Ill App2d 4, 230 NE2d 520 (1967). Likewise, whether the trial court’s conclusion that the appraisers correctly construed the lease is manifestly against the weight of the evidence is of no consequence. It is not the evidence with which we are concerned here. It is the law. The manifest weight of the evidence rule does not apply to constructions of law.

For the reasons stated, the decree of the trial court in this case is reversed. The parties are instructed to begin anew the appraisal procedure called for in the lease subject, however, to the instructions, findings and guidelines of this opinion.

Reversed.

ALLOY, J., concurs.

STOUDER, P. J., dissents.

DISSENTING OPINION

STOUDER, J.

I do not agree with the majority of the court. The judgment of the trial court is not, in my opinion, erroneous as found by the majority and I believe that the trial court’s action ought to be affirmed. As can be seen from the majority opinion, there are two general areas of controversy involved in this case. The first relates to the qualifications of appraisers and the second relates to the infirmities in the appraisal itself.

With respect to the qualifications of appraisers, I am unable to find any support or authority for the proposition as stated in the majority opinion that requiring appraisers to be “competent, judicious and disinterested” imposes special qualifications upon the appraisers. Terms such as “impartial,” “unbiased,” “unprejudiced” and “disinterested” may have shaded differences in meaning as applied in a particular context. It does not appear that “disinterestedness” is a quality uniquely and distinctively different from the usual qualifications expected of an appraiser.

Indeed, the language in Giddens v. Board of Education, 398 Ill 157, 75 NE2d 286, negates any conclusion that disinterestedness is a special qualification not ordinarily expected of an appraiser. In Giddens the court states, “Nevertheless, notwithstanding the failure to incorporate in the leases a broad provision commanding that the appraisers shall be disinterested and impartial, it is undoubtedly true that, in addition to an interest as lessee or mortgagee of school fund property or being a representative of one of the parties, other circumstances exist which will subject an appraiser to disqualification.” Later in the opinion the court states, “While it is evident from an examination of the authorities that all do not agree as to the particular grounds which are sufficient to disqualify arbitrators and appraisers, two propositions may be deduced. First, each case must in a large measure, be governed by its own circumstances and second, an interest or bias to disqualify may be small, but it must be direct, definite and capable of demonstration, rather than remote, uncertain or speculative. The facts and circumstances existing in the case at bar compel the conclusion that whatever interest Clark and Seleenbrecher had in the valuation reported by the Board of Appraisers, it is indirect, remote and uncertain and consequently, insufficient to require disqualification.” The majority opinion declines to follow or apply Giddens because of the purported special qualification of disinterestedness. Since the Giddens case itself dispels any such conclusion and since no other authority is cited in support thereof, it is my conclusion that the Giddens case is applicable and supports the trial court’s conclusion.

The conclusion that a preformed opinion of value ought not disqualify an appraiser is, I believe, in accord with the intentions of the parties to such a lease. Periodic revaluation provisions in long-term leases were developed in the late 1800’s and early 1900’s in an effort to introduce a limited amount of flexibility into the lease. The provisions may be said to be an active compromise between the interest of an owner and user of land. Usually, as in the instant case, the property involved is commercial and the long-term lease is a business transaction entered into with deliberation and forethought. It is to the interest of each party that the periodic adjustments provided for in such leases be determined as reasonably as possible. Before any adjustment or modification can be mutually agreed upon, it would appear reasonable that each party seek and secure professional advice. Such favorable advice may be then used as a basis for negotiation and in the event that the parties fail to agree, the parties would then propose the appointment of an appraiser favorable to their position. How can such favorable advice be known except that the person have a preformed opinion of value?

To hold as does the majority, that a preformed opinion of value thereby disqualifies an appraiser is contrary to the intention of the parties and subjects them to a hazard not originally intended or contemplated. The opinions of professional appraisers exercising their highest skill and best judgment may vary widely, yet according to the majority, the lessor and lessee are each expected to select an appraiser whose opinions of value are unknown. Such a result is not required since in my opinion, the mechanism of the appraisers appointed respectively by a lessor and lessee selecting a third appraiser, is sufficient to assure protection of the legitimate interest of each party.

At this point it should be observed that it was not only Kuehnle, the appraiser appointed by the lessee, who had a preformed opinion of the value of the property. Ehlers, the appraiser appointed by the lessor, also had such a preformed opinion. It cannot be said that he was any less an advocate of a particular position than was Kuehnle, whose qualifications are deemed suspect by the majority of the court. The fact that each of the parties appointed an appraiser who had previously formed an opinion of value of the property has two important consequences. First, it must be regarded as a mutually binding construction of the contract and second, neither party ought to be permitted to complain about the same alleged misconduct of the other.

As I have heretofore indicated, I believe that the Giddens case is of persuasive authority in support of the trial court’s action and that the distinction which forms the basis for the majority’s disregard for this authority does not exist. In any event, I do not believe that the force and authority of the Giddens case is diminished or rebutted by Scott v. Arden Farms Co., 26 Del Ch 283, 28 A2d 81, the principal case relied upon in the majority opinion to support reversal of the trial court. The Scott case can be distinguished on its facts and I find no justification for extending or applying the conclusions to the instant case.

In analyzing the Scott case, it should be noted that it is a decision of a trial court interpreting and applying a Delaware stock appraisal statute. In resisting the application of the shareholder for the appointment of a third appraiser, the corporation argued that Davis (appraiser appointed by shareholder) was disqualified for two reasons, first, he had been an agent of the shareholder and second, unknown to the corporation, he had previously formed an opinion of value of the shares in question. The quotation appearing in the majority opinion represents the court’s views on the second objection and the court does, in fact, conclude that the prior opinion of value disqualified Davis. This result seems to me somewhat inconsistent with the court’s disposition of the other alleged fact of disqualification, namely, Davis’s employment. With respect to this issue the court indicated that the corporation ought to have known of Davis’s employment because of his negotiations and accordingly, any objection thereto was waived. This reasoning would appear to be equally applicable to Davis’s preformed opinion of value. If Davis, as an investment counselor, was negotiating with the corporation to secure the value of the shares, would it not follow that his negotiation was based on an opinion of value? Furthermore, the opinion is silent on the qualifications of Bancroft, the appraiser appointed by the corporation, and accordingly, what the court might have decided if such an appraiser had also formed an opinion of value cannot be ascertained.

Accordingly, it is my opinion that the finding of the trial court that Kuehnle was disinterested is supported by the evidence and hence, his participation in the appraisal did not render such appraisal void.

This brings me to the next issue, namely, that the appraisers erred in construing the lease and the trial court erred in approving or agreeing with such construction. Appellant has devoted many pages of its brief to numerous charges of lease misconstruction by the appraisers Kuehnle and Newcombe. Appellant’s major premise is that the valuation by Kuehnle and Newcombe was too low and, therefore, must be wrong. Recognizing that valuation appraisals are matters of judgment, appellant has attributed what it deems to be a bad result to improper construction of the lease.

In Sebree v. Board of Education of Chicago, 254 Ill 438, 98 NE 931, the court said, “As long as appraisers act honestly and in good faith, they have a wide discretion as to their methods of procedure and sources of information. Their conclusions, in the absence of fraud or mistake, will be binding upon the parties. Norton v. Gale, 95 Ill 533, . . . Stose v. Heissler, 120 Ill 433, 11 NE 161, . . . Pearson v. Sanderson, 128 Ill 88, 21 NE 200, Chicago Auditorium Ass’n v. Corporation of Fine Arts Bldg., 244 Ill 532, 91 NE 665 .. . .” Thus, the principal issue is whether the appraisers misconstrued the lease or whether the differences in valuation represented the exercise of an appraiser’s judgment.

Appellant makes many generalized assertions as to errors of the appraisers, but when such generalizations are cleared away, specific respects in which the lease was misconstrued are lacking. The vagueness of appellant’s position is mirrored in the opinion of the majority of the court which although suggesting areas of error, nevertheless leaves the nature of such error vague and undefined.

The basis for alleged misconstruction of the lease is the amendment of 1924, which provides, “. . . the appraisers . . . shall not take into account the then value of any permanent additions or improvements, as distinguished from repairs or replacements, . . . .”

Each of the three appraisers valued all of the leased buildings as a whole. Ehlers valuation was $2,262,000, Newcombe’s valuation was $850,000 and Kuehnle’s valuation was $1,000,000. Each then deducted the value of the permanent improvements and found a value for the buildings less the value of such permanent improvements. Ehlers opinion of such value was $1,950,000, Newcombe and Kuehnle each concluded that after deducting the value of the permanent improvements, the value of the buildings was less than the minimum value as established by the lease ($512,000) and hence, each set forth such minimum valuation as the basis upon which the rent was to be computed. Neither Newcombe nor Kuehnle, as contended by appellant, found that the value of the permanent improvements exceeded the value of the buildings.

From the foregoing it appears that the low valuation objected to by the lessor cannot be the result of misconstruction of the 1924 lease amendment quoted above, but rather represents differences in valuation of the buildings as a whole. The appraisers employed a variety of techniques and methods in arriving at their opinions of value. This is what appraisers are expected to do.

Union Trust Co. v. Board of Education, 348 Ill 256, 180 NE 819, and Marceron v. Chevy Chase Services, Inc., 258 F2d 155, announce the general rule that appraisers must act in accord with the directions establishing their authority. Such cases do not support the conclusion that the appraisers in the instant case violated any directions contained in the lease. In the Union Trust Co. case, Supra, the appraisers did not determine fair cash market value. Instead, they determined a fair rental value when owned by a particular owner, namely, a tax-exempt agency. In the Marceron case, supra, the court concluded that the two lots described in separate leases ought to have been appraised as a unit. Neither of the foregoing cases presents any factual similarity or analogy from which it can be concluded that the appraisers in the case at bar failed to follow the directions in the lease in any particular respect.

The majority opinion alludes to errors which the appraisers allegedly committed in determining that certain items were permanent improvements rather than replacements. It does not appear to me that permanent improvements can be distinguished from replacements as a matter of law and that, in fact, this is an area peculiarly requiring the competence of appraisers, as well as an area in which there may be significant differences of opinion. Although the majority has indicated that the appraisers Kuehnle and Newcombe erred in the allocation of particular items as between permanent improvement and replacement, yet no criteria or formula is offered or proposed which suggest that the allocation is anything other than a matter of judgment.

If the appraisers erred as indicated by the majority of the court, it should follow that other appraisers ought to be able to ascertain from the opinion what they should do differently from what Newcombe and Kuehnle and for that matter Ehlers, did. To me, the opinion offers no such directions or guidelines and consequently, the absence thereof seems to me to be contrary to the conclusion that the appraisers erred in construing the lease.

A further error is attributed to the appraiser Newcombe in that he considered the revaluation lease as depredating the value of the premises. According to the majority, this was improper, citing an authority Springer v. Borden, 210 Ill 518, 71 NE 345, and Giddens v. Board of Education, 398 Ill 157, 75 NE2d 286. The Springer case did hold that such consideration was improper. However, I do not believe that the Springer v. Borden case is applicable. Except in a companion case decided at the same time (Columbia Theatre Amusement Co. v. Adsit, 211 Ill 122, 71 NE 868), the Springer case had not been followed in any subsequent decision. In Sebree v. Board of Education of Chicago, supra, and Giddens v. Board of Education, supra, the court declined to follow Springer and in each case held that the appraisers could consider the effect of a revaluation lease. The court indicated that there was a difference of opinion among reputable appraisers as to the effect of such a lease upon value, but concluded that the appraisers were at liberty to consider its possible effects. Although Springer v. Borden, supra, has not been specifically overruled, it would appear that both in Sebree and Giddens its principle holding was rejected, and, under the authority of Giddens and Sebree, the appraiser Newcombe committed no error in considering the effect of the revaluation lease.

In conclusion, the history of revaluation leases and the litigation with respect thereto, as well as the history of the lease involved in this case, reveal the difficulties and problems associated with such leases. The appraisal procedure is usually, as in the instant case, resorted to when the parties are in disagreement on values. Either the lessor or lessee is likely to be disappointed or even outraged by a result which is contrary to their hopes or expectations. I believe that the appraisal procedure was fairly conducted in a manner and before a forum selected by the parties. Accordingly, I believe that the trial court’s action ought to be affirmed.


author: ALLOY, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. H. D. (Rusty) Gill, Defendant-Appellant.
    Gen. No. 69-74.
    Third District.
    March 31, 1970.
    Rehearing denied April 23, 1970.

      Theodore Jackson, of East Moline, for appellant.
    James N. DeWulf, State’s Attorney of Rock Island County, and Walter Brand, of Rock Island, for appellee.
   ALLOY, J.

This is an appeal from the conviction of defendant H. D. (Rusty) Gill, under 1967 Ill Rev Stats, c 38, § 16(1) (b) which provides “A person commits theft when he knowingly: ...(b) Obtains by deception control over property of the owner; . . . .” Defendant was sentenced from two to ten years in the Illinois State Prison following conviction.

The record discloses that early in 1968, Mr. Whiteside, after a conversation with defendant Gill got in touch with four East Moline businessmen to find out if they would be interested in a motel venture in West Branch, Iowa. These four men, Messrs. Jacobson, Polios, VanHoe and Coopman, met with Gill and Whiteside. Defendant Gill was an independent consultant with offices in Tip-ton, Iowa. Prior to his discussions with the five men referred to, defendant Gill had worked with two East Mo-line men in establishing a Dutch Inn motel in East Moline. It was shown that the East Moline Dutch Inn motel venture involved an agreement between Gill and other investors which provided that the investors were to furnish $12,500, and if a study showed that the motel was not feasible $12,000 was to be refunded to the investors. The East Moline Dutch Inn motel was approved and the $12,500 went for the purchase of the Dutch Inn franchise. Defendant Gill was paid a finder’s fee by Dutch Inn, Inc., with respect to the East Moline motel.

Later, in 1968, after Gill had talked to Mr. Whiteside and explained the previous Dutch Inn project in East Mo-line, Whiteside had talked with the four East Moline men referred to and they all met with Gill. During the preliminary meetings Gill explained the plan- to build the motel and also explained that a feasibility study would be required to determine if the West Branch, Iowa, location was adequate, if land was available, and what it might cost to construct and operate a motel in West Branch. There were a number of meetings between Gill and the five interested parties in the venture. All of these meetings were held in Illinois. Defendant Gill was asked expressly by Dr. Jacobson, one of the investors, how Gill was going to be paid out of the project. The only answer which Gill gave was that Dutch Inn, Inc. would take care of it. Gill talked with this group of investors about constructing a Dutch Inn motel, and they testified that he indicated to them that he represented Dutch Inns of America motel chain. He explained the project to the prospective investors and also outlined how the East Moline project was handled, using advertising materials provided by Dutch Inns in talking with the new investors. He also told them that a deposit of $12,500 would be needed to get the project under way and that such sum would be used for the purchase of the franchise in a leaseback arrangement from Dutch Inns of America.

The five joint venturers then attempted to incorporate as Par 4 Realty, Inc., but the incorporation was never completed. An attorney, a Mr. Schrager, was retained to represent the investors. After a number of additional meetings with defendant Gill, the group decided to go ahead with the project and each of the four investors sent their attorney $3,125, making a total of $12,500. The fifth investor, Mr. Whiteside, was to perform services as his contribution to the group. Before sending money to Gill, Attorney Schrager requested that Gill advise him of his connection with Dutch Inns of America. Gill wrote the attorney a letter stating that he had authority from Dutch Inns to “arrange, license, and leaseback motel inn projects in the United States of America and Mexico.” The attorney then made out a check for $12,500 to an organization designated by Gill called Associated Independent Consultants, Inc., and mailed such check to defendant Gill in Iowa, along with an application for a leaseback and franchise from Dutch Inns of America. Gill had directed that the check be made payable to Associated Independent Consultants, Inc., and cashed the check on July 5,1968. Shortly thereafter problems arose with respect to the feasibility study of the proposed West Branch location. The investors then sought return of their money less $500 which, they stated, was to be retained if the project did not go through. The attorney specifically requested that defendant Gill return the money. He was first told by defendant Gill that Dutch Inns had the money. Later defendant Gill told him that he still had the money but that the group owed him for the services. The money was never returned.

At the trial in the cause the testimony of the investors and the attorney Schrager included statements that Gill did not have authority or capacity to accept checks for Dutch Inns of America. Defendant Gill testified that he was to be paid for his services to the group, but that he was not able to give any specific examples of work or services he had performed for the investors. He testified that much of his work for the group would be in the future as the motel project progressed. Defendant Gill also stated that he was authorized by the investors to negotiate not only with the Dutch Inns but also other motel chains. The investors, however, testified Gill talked to them only with respect to a Dutch Inn motel.

The jury found defendant guilty. A post-trial motion was overruled. At a time set by the court for a hearing in aggravation and mitigation, defendant presented a petition for probation. The State’s Attorney at the time told the court that it was felt that defendant should be punished by a sentence in the penitentiary. The court then asked “Anything in mitigation?” to which attorney for defendant replied, “Just that my client has never been convicted of a crime before, Your Honor, except for some traffic offenses. This is not a crime of violence, I know the Court will use its own good judgment to pass sentence on this man for consideration of the crime committed and the offense. Thank you. Mr. Gill come up here please.” The court then asked, “Have you anything to say before I impose sentence Mr. Gill?” The defendant answered, “No, sir.” The court then sentenced Gill to the Illinois State Penitentiary for not less than two nor more than ten years.

On appeal in this Court, defendant claims that the trial court erred in denying certain portions of defendant’s motion for a bill of particulars; that improper testimony by state’s witnesses was allowed by the court with respect to the capacity of Gill to accept money for Dutch Inns, Inc.; that the State did not prove the crime as alleged in the indictment, in that it did not prove that the crime occurred in Illinois or the ownership of the money; and also that defendant was not proven guilty beyond a reasonable doubt. The defendant also contends that the trial court abused its discretion in denying probation and in failing to refer the matter to a probation officer for investigation and, likewise, that the sentence imposed was excessive.

Defendant Gill had requested a bill of particulars specifying the day, month and year of the offense and the name of the owner of the property. The State furnished a bill of particulars which stated that defendant Gill had led complaining witnesses to believe that he had authority from Dutch Inns, Inc. to accept money, when in fact he did not, and that the offense occurred in East Moline, Illinois, the law offices of attorney Sehrager and the Chamber of Commerce Building. Defendant contended that this was still not specific enough and that the court erred in not entering an order requiring a more detailed bill of particulars. As stated in People v. Bain, 359 Ill 455, at 472, 195 NE 42, a bill of particulars is addressed to the sound discretion of the trial court. It is only where it is made to appear that the defendant cannot properly prepare his defense without a bill of particulars that the court will require the prosecution to furnish a bill of particulars. It is pointed out that the object of a bill of particulars is to give defendant notice of the specific charges against him and to inform him of the particular transactions in question so that he may be prepared to make his defense. The effect, therefore, is to limit the evidence to transactions set out in the bill of particulars, as it informed the defendant of the particulars of the offense sufficiently to enable him to prepare his defense. It is apparent from the record that there is no specific date that could be set forth as the exact day when the defendant was alleged to have committed the deceptive practice which resulted in the taking of the money, since the State contended that defendant obtained the money through a series of representations, and then later refused to return the money. The events leading up to the receipt of the money were all part of the crime and tended to disclose that defendant wrongly intended to take the money by deception. The bill of particulars described the way the crime was committed as completely as the State could, and on the basis of the record there was no error in the refusal to require a more detailed bill of particulars under the facts. There was no element of surprise involved in this cause. People v. Gray, 251 Ill 431, 96 NE 268. There was, therefore, no abuse of discretion by the trial judge in refusing a more specific bill of particulars.

Defendant also contends that neither the indictment nor the bill of particulars stated clearly who owned the money. The indictment stated the money was the property of Coopman, Jacobson, Polios, VanHoe and Whiteside, doing business as Par 4 Realty, Inc. This correctly described the situation as the money was the property of the individuals, and since they had never incorporated, they were merely doing business as Par 4 Realty, Inc. The only reference to the corporation was the addition of the abbreviation “Inc.” There was a showing that there was, in fact, no corporation and that the money did belong to the individuals. There was no variance between the indictment and the proof so that there was no error in this respect (People v. O’Dell, 343 Ill App 395, 99 NE2d 367).

Several of the investors testified at the trial, in answer to questions, that defendant had no authority to accept money from Dutch Inns. Objections were made to such questions. They all answered after objections were overruled that Gill had no such authority. On cross-examination it was shown that the witnesses had no actual, personal knowledge whether Gill was authorized by Dutch Inns to accept the money. Defendant contends that this was error and it was prejudicial to his case as the jury was unduly influenced by such testimony. While it is true that it was improper to allow the witnesses to testify as to Gill’s authority to receive money for Dutch Inns, it was brought out in the cross-examination that the witnesses had no basis for their testimony that Gill had no authority, and the testimony of the defendant Gill himself showed he had no authority. His testimony also indicated that he did not intend to turn over the $12,500 to Dutch Inns, since he stated he was investigating several possible projects. Defendant Gill testified that he explained to the investors that he handled the East Moline Dutch Inn project and was paid a finder’s fee by Dutch Inns, Inc. The same amount of $12,500 was required in the East Moline project. The record shows sufficient evidence, also, that the same sum of $12,500 was obtained from investors in the case before us in order to obtain a franchise from Dutch Inns. Gill testified that he was to receive the entire $12,500 for his work as a consultant. Thus his testimony established that defendant Gill did not intend to send the money to Dutch Inns, Inc., as he had led the investors to believe.

On the basis of the record, therefore, the error which was committed was not prejudicial and would not justify a reversal on this ground since there was no affirmative evidence by defendant Gill himself or anyone that he did have authority to act for Dutch Inns, Inc. Gill actually indicated by his testimony that he did not intend to pay the money to Dutch Inns.

On the issue as to whether the State proved the crime as alleged in the indictment under 1967 Ill Rev Stats, c 38, § 1-5, it is provided that an offense can be committed either wholly or partly within the State and that if the offense is committed partly within the State of Illinois, if either the conduct which is an element of the offense or the result which is such an element, occurs within the State, the person could be subject to prosecution in this State even if part of the offense is committed outside the State. The crime of theft in the case before us involves control of the property of the owner by deception in excess of the value of $150. An element of the crime is deception referred to which occurred in the State of Illinois. The meetings with the investors were held in Illinois and it was in Illinois that Gill represented that he was going to try to obtain the Dutch Inns franchise for $12,500. Defendant Gill wrote a letter to Attorney Schrager which was delivered to Schrager’s office in Illinois confirming that defendant Gill was authorized to act for Dutch Inns. While the check was mailed to defendant Gill in Iowa as he directed, it was, in fact, deposited as mail in Illinois. A substantial element of the crime charged, therefore, occurred in Illinois, and it was sufficiently shown that the crime was committed in this State.

On the issue of whether defendant was proven guilty beyond a reasonable doubt, the record showed clearly that defendant told the group of investors that he represented Dutch Inns and was going to take the $12,500, which they were to give to him, and use this to purchase a franchise and leaseback arrangement with Dutch Inns. While the defendant testified that he had told the investors that defendant himself was to receive and retain the entire $12,500 for his services, this was contrary to the testimony of the investors. The jury apparently believed the testimony of the investors. The jury, therefore, was justified, on the record, in the finding that defendant had obtained the money from the investors by deception in violation of the statutory provision.

The defendant contends that it was error for the trial court not to refer his petition for probation to a probation officer for investigation (People v. Donovan, 376 Ill 602, 35 NE2d 54). It is clear that applications for probation should not be arbitrarily denied but a trial judge can determine whether it is necessary to refer the petition for probation, for investigation where he knows all of the pertinent facts which might be disclosed by such investigation (People v. Brown, 392 Ill 519, at 523, 64 NE2d 739). While an investigation is the normal and orderly procedure, unless there is a showing that an investigation would have disclosed facts which might potentially change the determination of the trial court on the question of probation, the action of the trial court in not referring the probation petition for investigation would not be considered reversible error. In the cause before us the defendant was given a specified time for a hearing in aggravation and mitigation and the court indicated that defendant’s counsel could present anything which he wished to present. Only a short statement was made which indicated that defendant had no criminal record and, thereafter, defendant was given the opportunity to speak, but defendant said nothing. An opportunity was therefore available to defendant and his counsel to communicate any information or details which they felt an investigation might show.

In People v. Smice, 79 Ill App2d 348, 223 NE2d 548 (cited by defendant), it was there shown that the court had no information on which to determine if the request for probation was proper. While the Appellate Court affirmed the conviction it remanded the case to the judge to obtain a probationary or presentence report and with such report to reconsider the petition for probation. In the cause before us, the trial judge was informed of the background of defendant. The court also held a hearing in aggravation and mitigation (which was not done in the Smice case) and gave defendant’s counsel and defendant an opportunity to present anything which either counsel or defendant felt might aid the judge in determining what sentence to impose. On the basis of the record, therefore, we do not believe that it was reversible error to omit a probation investigation in this case.

"While defendant contends that the sentence imposed in this case was excessive, there is no contention that it does not come within the range of penalties provided for the offense of which defendant was convicted. We have had nothing specific directed to the attention of the court which would justify action by this Court in reducing such sentence or remanding for review and reconsideration of the sentence. The judgment of the Circuit Court of Rock Island County will, therefore, be affirmed.

Affirmed.

RYAN, P. J. and STOUDER, J., concur.