author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Larry Lowe, Defendant-Appellant.
    Gen. No. 11,135.
    Fourth District.
    April 29, 1970.
    Rehearing denied June 1, 1970.

      Robert D. Owen, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   TRAPP, J.

Defendant was convicted of murder upon the verdict of a jury and sentenced to a term of from 40 to 60 years. He appeals.

Issues presented upon appeal include the sufficiency of Count II of the indictment; the alleged error in admitting into evidence a statement of the defendant to police at the scene without Miranda warnings being given; the alleged error in instructing the jury as to the offense of murder and in refusing certain defendant’s instructions, and whether prejudice to a fair trial resulted from the State’s argument to the jury, and certain events occurring during the trial which will be discussed more fully hereinafter.

Defendant was the husband of the victim. At about 9:00 a. m. on March 10, 1968, the deceased wife was found seated in a chair dead from a shotgun wound in the chest. The shotgun was lying on the floor some few feet from the body. The defendant was discovered seated in the basement with his clothing saturated with blood, and his arms and legs slashed. He appeared to be quite weak, and was shortly thereafter taken to a hospital where he was treated for shock and given a blood transfusion.

The room in which the body of the wife was found was in great disarray with blood scattered about, razor blades were scattered about and pictures of the wife were cut or torn. The chandelier was pulled from the ceiling and a piece of wire was hanging from it, which was said to suggest that there was an attempt at suicide by hanging. Blood was found in the kitchen and in the bathroom. A three-month-old baby of the victim was found in a crib or cot nearby.

The shotgun was owned by the defendant and he testified that it was kept in a gun case in a box in the closet. Investigating officers testified to finding the gun case lying in or across a box resting on a chair in the closet. Defendant testified that his wife was never known to handle or touch the gun.

Neighbors who resided immediately above the quarters of defendant testified that they heard a violent and prolonged quarrel commencing about 1:30 a. m. on March 10th, and continuing until at least 2:00 a. m., when they went to sleep.

The essential factors to be considered primarily arise from the testimony of the defendant. They are that his wife returned home at about 1:30 a. m., having been gone since 1:00 p. m. the previous afternoon. Defendant testifies that he had been drinking. He testified that she came in, changed to her nightgown and came out with the baby. By processes not very clearly brought out, they became involved in a violent quarrel. It is corroborated that the wife seemed to take some pleasure in applying humiliating nicknames to her husband. According to his testimony, she further humiliated him in discussing the paternity of the three-month-old baby. It appears that the victim had an older child of some five or six years whose father was a man named Worley; that she had Worley’s initials and a heart in tatoo on her thumb; and that she, with defendant’s apparent knowledge, spent some six weeks in the west with Worley and returned about eight months before the baby was born.

Defendant testified that he recalls a prolonged quarrel, but that his recollection of what actually transpired fails. He testified that he next recalls discovering himself, at about 4:00 a. m., seated in a chair with the shotgun on the floor and his wife seated in a chair apparently dead; that he walked four blocks to his sister’s to get help but could rouse no one, and then returned and slashed his wrists with a razor. Thereafter, he went to the basement and remained until discovered at about 9:00 a. m. in the morning.

Defendant challenges the sufficiency of Count II of the indictment as a charge of murder. The language of the Count is:

“. . . committed the offense of murder in violation of Chapter 38, § 9-1, Ill Rev Stats, 1967, in that he killed Deanna Lowe without lawful justification by shooting her with a gun, knowing that such action created a strong probability of death or great bodily harm to Deanna Lowe. . . .”

It is recognized by counsel that such is a charge in the language of chapter 38, § 9-1 (a) (2), Ill Rev Stats 1967. It is argued however that the conduct proscribed is so uncertain that the section is unconstitutional and that an indictment through such section:

. . does not allege all the substantial elements of murder because the intention to do the act that results in death is a necessary element which is incorporated in other sections of the Code and which must be alleged in the indictment.”

In The People v. Davis, 35 Ill2d 55, 219 NE2d 468, the court considered an instruction stated in the language of § 9-1 (a) (2) and in substantially the identical language of this indictment. There the argument was made that the jury:

“. . . should have been instructed that they must find that the defendant had the intention to engage in conduct the result of which. . . .” (Emphasis supplied.),

and that the instruction and statute was violative of due process. The court said:

“In our opinion, neither the statute nor the instructions violated the constitutional rights of the defendant,”

and further noted that intent may be implied from the character of the act. It may be pointed out that the comment of the Drafting Committee of the Code concerning the section at issue said that the word “knows” as used in § 9-1 (a) (2) is defined in chapter 38, § 4-5 (b) as,

“. . . consciously aware that such result is practically certain to be caused by his conduct.”

The act of shooting while consciously aware of the probable result, we believe, sufficiently charges an intent to do the act for purposes of defendant’s argument.

It is contended that the court erred in admitting into evidence the testimony of a police officer, Derr, as to the statement of defendant made at the scene:

“I killed her and the gun is on the living room floor.”

No Miranda warning had been given at such time. The argument here is directed to the issue as to whether the defendant was in custody.

A motion to suppress was made and evidence heard. Defendant did not testify upon such motion, but several officers did describe discovering the defendant in his bloody and apparently weakened condition. It is noted that within 15 or 20 minutes defendant was taken to the hospital where he was treated for shock and given blood. Several police officers testified as to asking defendant concerning his injuries and whether he needed medical or hospital care. Derr came upon the scene somewhat later. He appears to have been in a position of supervision of the case. He testified that he asked concerning defendant’s condition and need for care, and that in replying to such inquiry about the need for medical or hospital care, defendant volunteered the statement to which objection is now made. The officers present at this particular time testified that they heard Derr’s questions but did not hear the answers or the statement by the defendant now in evidence. They say that there were no questions concerning the shooting.

Both at the time of ruling upon the motion and at the time the testimony was admitted over objection during the trial, there was no evidence other than that defendant spoke spontaneously, and that there were no questions asked him concerning incriminating facts as in Orozco v. Texas, 394 US 324, 22 L Ed2d 311. It is only when defendant testified in his own behalf at the trial that it is claimed that he was asked if the gun on the floor was the one he used. At this point we find neither renewal of the motion to exclude Derr’s testimony, nor any other pertinent motion upon the issue.

Where there is no apparent custodial interrogation, a police officer is not required to interrupt a spontaneous statement made by the defendant. In re Orr, 38 Ill2d 417, 231 NE2d 424; People v. Routt, 100 Ill App2d 388, 241 NE2d 206; People v. Gonzales, 107 Ill App2d 44, 245 NE2d 791. In Miranda, 384 US 436, 16 L Ed2d 694, it is expressly stated that the rule of exclusion of defendant’s statement does not apply to voluntary statements made without questioning initiated by law enforcement officials.

Defendant next argues that the evidence is not sufficient to sustain a verdict of murder, it being his theory that the evidence does not “exclude” the conclusion that the death was involuntary manslaughter in that the gun was handled recklessly, or that there was an accidental shooting during a struggle over the weapon. It is urged that the shooting must have occurred while the parties were struggling with the gun by reason of inferences argued from the following circumstances: (1) the weapon was fired from a distance of two feet or less, (2) that the decedent was seated in a light chair and that the force of the shotgun blast would have caused the body and chair to be knocked over when fired at such close range, and (3) that the fingerprint expert found only smudges of fingerprints on the weapon, although he was of the opinion that the gun had not been “wiped” to clean it. From such data defendant urges that it is not reasonable to believe that one would shoot to kill with a muzzle within less than two feet, but that one would stand back, and that the fact must have been that the parties were standing and wrestling with the gun and that the decedent was shot and staggered back two steps to collapse into the chair.

The hypothesis that the smudged fingerprints are evidence of a struggle does not seem to explain the testimany of defendant that when he returned to a period of which he has recollection, he picked up the shotgun, extracted the expended shell and laid the gun on the floor. The jury might consider that it appears that such prints were also apparently smudged.

The deceased is described as being 5 feet, 8 inches tall, and weighing 145 pounds. It is a matter for the determination of the jury whether such a person staggering or collapsing backward into the described chair would be more likely to overturn the chair than a shotgun blast received by a seated person whose substantial weight gave some stability to the chair and whose body resilience absorbed some of the blast effect. From the testimony the shot entered the body almost in a straight line or a direct plane. Such fact does not necessarily persuade of a violent struggle over the gun.

The defendant’s testimony directs us to a quarrel during which he became more angry than he had ever been. This is supported by the evidence of the slashed or torn photograph of his wife and the possible attempt to hang himself, and the clear-cut evidence that his wrists were slashed in a substantial attempt to commit suicide.

While the defendant’s statement that he shot his wife, as it appears in the record, is not necessarily conclusive of murder, it is a link in the chain of circumstantial evidence, which considered with all of the other evidence, supports the conclusion of guilt beyond a reasonable doubt. People v. Martin, 77 Ill App2d 183, 222 NE2d 180.

The defendant contends that the court erred in giving People’s Instruction No. 12, which defines murder in the language of chapter 38, § 9-1 (a) (1) and (2). As noted in discussion of the argument upon the sufficiency of Count II, this instruction is in the form and in substantially identical language as the instruction approved in The People v. Davis, 35 Ill2d 55, 219 NE2d 468.

It is urged that the court erred in giving People’s Instruction No. 11 in the language:

“Motive is that which prompts a person to act. The State is not required to prove a motive for the commission of the crime charged.”

This is the language of IPX, Criminal, § 3.04, although such was not in effect at the time of the trial. Defendant argues the rule of The People v. Enright, 256 Ill 221, 99 NE 936, which holds that such instruction should not be given where the prosecution introduces evidence of motive and argues it to the jury. Defendant points out that the prosecution questioned the sister of the victim concerning threats to kill his wife made by defendant some two years prior. We do not understand from the record that such evidence was designed to show motive for this shooting.

The defendant argued strongly as to provocation and passion resulting from the humiliating remarks of the wife which were testified to by the defendant. The evidence is that the wife had made the' same or similar remarks upon other occasions. The great anger to which defendant testifies seems to come within the definition of motive. Motive is not necessarily only a desire for gain as appears to be argued by the defendant. The remarks made by the prosecution in closing argument were comments directed to defendant’s argument to the jury upon provocation rather than to assert that the State had proven motive. The giving of the instruction did not violate the rule of Enright.

It is urged that the court erred in giving People’s Instruction No. 14. It is in the language:

“A person kills another ‘without lawful justification’ unless he reasonably believes that the use of the force which resulted in the death of the other was necessary to prevent imminent death or great bodily harm to himself.”

It is urged that there was no evidence to support the giving of the instruction, and that it relates only to self-defense, thereby misleading the jury when applied to the statutory definition of voluntary manslaughter. It is noted, however, that defendant’s given Instruction No. 1 defining voluntary manslaughter included the words “without lawful justification.” The language of the instruction is a reasonable paraphrase of the second sentence found in chapter 38, § 7-1, Ill Rev Stats 1967. It also appears that such words placed in the instructions defining the three forms of offense might create uncertainty in the minds of the jury as to what they must determine. It is not apparent that such instruction misleads or confuses, and there is no such prejudice to defendant as to require reversal. The People v. Rongetti, 344 Ill 107, 176 NE 292.

The defendant argues error in the denial of defendant’s Instruction No. 4 which limits the definition of murder to instances where defendant “intends to kill or do great bodily harm,” and it is further argued that this instruction should have been given rather than People’s Instruction No. 12. Upon the authority of The People v. Davis, 35 Ill2d 55, 219 NE2d 468, this instruction was properly refused.

The trial court refused to give defendant’s Instruction No. 6 which undertook to explain that the presence or absence of malice was the distinction between murder and manslaughter, and continued to state the distinguishing definitions of express and implied malice. It is urged that such denial was error. The trial court gave defendant’s Instruction No. 1 which defined voluntary manslaughter in the language of chapter 38, § 9-2, Ill Rev Stats 1967. In The People v. Davis, the Supreme Court stated its approval of the definitions of homicide which avoided the common law language of “malice aforethought” and the difficulty of expressing to a lay jury the distinctions of malice, express and implied. Upon such authority the denial of the instruction was not error.

The trial court refused to give defendant’s Instruction No. 2 concerning the offense of involuntary manslaughter. This is said to be error. At the instruction conference the trial court noted that the defendant’s evidence was directed to show provocation of the defendant. In argument to the jury defendant’s counsel argued provocation and also that the evidence supported a conclusion of accidental death during a violent struggle with the shotgun.

It is held that an instruction of involuntary manslaughter should be refused where the theory is that death was by accident or misadventure as the two are inconsistent and cannot be reconciled. The People v. Tanthorey, 404 Ill 520, 89 NE2d 403; People v. Dockery, 72 Ill App2d 345, 219 NE2d 687; People v. Johnson, 54 Ill App2d 27, 203 NE2d 283.

The court denied defendant’s Instruction No. 5 which advised the jury that if they could reconcile the evidence upon any reasonable theory other than that of defendant’s guilt there was a duty to do so and to acquit. The court gave an instruction upon the presumption of innocence and the prosecution’s burden of proving guilt beyond a reasonable doubt. The court also gave defendant’s Instruction No. 3 that defendant was entitled to the benefit of the doubt as to whether the killing was murder or manslaughter,

“. . . or if there is a reasonable doubt as to either murder or manslaughter be acquitted.”

As stated in The People v. Russell, 17 Ill2d 328, 161 NE2d 309;

“The jury was not required to search out a series of potential explanations compatible with innocence, and elevate them to the status of a reasonable doubt.”

The correct standard by which the jury measures guilt is that of reasonable doubt. In The People v. Malmenato, 14 Ill2d 52, 150 NE2d 806, the court said:

“Reasonable doubt is a term which needs no elaboration and we have so frequently discussed the futility of attempting to define it that we might expect the practice to be discontinued.”

See IPI, Criminal, § 2.05. It is noted that the defendant did not tender an instruction upon the possible issue of misadventure.

It is urged that the court erred in denying a motion for mistrial by reason of the publication of a news article occurring during the trial. The parties had stipulated that the jury might be permitted to separate each night until the case was submitted to the jury. The news story related to certain testimony taken out of the presence of the jury. It is agreed that the news story was accurate in content, but that the headline was misleading and inaccurate. It reads, “Admits Murder” rather than “Admits Shooting.”

The record shows that the trial court had very sternly admonished the jury upon the necessity of refraining from reading about the trial while they were serving, and requested them to have members of their respective families monitor the news and remove any accounts relating to the trial. Such admonitions were regularly repeated throughout the trial.

Upon a discussion of the motion for mistrial, it was agreed that if any juror answered that he had seen the headline, the members of the jury should be interrogated separately. Defendant’s counsel noted that it appeared to be a conscientious jury and requested the court to make it clear that a juror who had seen the headline would not be punished as a candid answer was desired. When the jury was returned into court, the responses were that no one had seen the headline and the trial was resumed. It is now argued that the jurors, or some of them, would be reluctant to admit a violation of the court’s instructions and that defendant was denied a fair trial. Acceptance of this argument would produce the effect that the mere fact of publication of news concerning a trial would necessitate a mistrial, and there would be some considerable possibility that no criminal case which received publicity would ever be completed. Defendant made no further request for interrogation of the jurors, or inquiry made of them separately. We do not accept the proposition that the trial court may not believe the jurors who respond to the court’s inquiries.

Defendant complains that counsel were not advised of certain arrangements made by the court between the time the jury retired to consider its verdict at 12:55 p. m. and returned its verdict at 9:55 a. m. The record is blank as to what transpired. There is only a suggestion of some threatened disturbance outside of or around the courthouse, and that the court arranged for the jury to complete its deliberations at a hotel following the evening meal. We would be required to indulge the ultimate in speculation to conclude from this record that the jury did not fairly consider its verdict.

Counsel also speaks of rumor in the community immediately prior to the commencement of the trial and a public feeling in favor of. law and order, suggesting that he possibly erred in not asking for a continuance. Nothing in the record suggests prejudice which the customary voir dire would not disclose.

Finally, defendant argues prejudicial error arising from the prosecution’s argument. In opening, the State’s Attorney discussed defendant’s testimony that the officers had asked him questions which elicited the statement, “I shot her . . . .” It was then said, “He has evidently heard of Miranda.” No objection was made by defendant, no motion to strike was made, and the court had no request to admonish the jury. There is nothing in such statement which supports defendant’s argument that the State’s Attorney’s statement must be considered as a disparagement of the decision of the United States Supreme Court.

In arguments before the jury, all counsel referred to provocation as it concerned the offense of manslaughter. Once the State’s Attorney argued that the testimony showed a long continued quarrel and that such did not demonstrate a sudden and intense passion as is described in the Code. No objection or motion was made. Subsequently the prosecution argued that words alone do not amount to provocation within the definition of manslaughter. The court sustained defendant’s objection and no more was said. There was no request to strike or admonish the jury.

Defendant argues that such statement was an incorrect statement of the law, and cites People v. Stepheny, 76 Ill App2d 131, 221 NE2d 798 and People v. Gajda, 87 Ill App2d 316, 232 NE2d 49, as holding that prolonged violent argument may constitute such provocation as to make homicide a voluntary manslaughter. In Stepheny the record shows testimony by the defendant that he fired when the deceased pulled a gun. In Gajda the defendant testified that the decedent had attacked him with a beer bottle. Thus, in each case there was more than a prolonged quarrel.

It is correct that the Illinois Courts have said that quarrelsome words alone do not constitute such provocation as makes homicide voluntary manslaughter. While not frequently expressed in the opinions, the former Illinois statute upon voluntary manslaughter provided that there must be:

. a serious and highly provoking injury ... or an attempt by the person killed to commit a serious personal injury. ...”

Chapter 38, § 362, Ill Rev Stats 1959. Earlier statutes speak of an actual assault or an attempt to commit serious personal injury. The Committee Comments to the present Code, chapter 38, § 9-2, state the intent to define manslaughter as the common law offense in a form compatible with the reported Illinois cases. It is further stated that in such statutory definition the word “conduct” is used in lieu of the former words “highly provoking injury” and “attempt.” Thus, the present Code contains neither an intent nor an effect which alters the statement of the rule concerning provocation and the prosecution did not incorrectly state the law. From the present statute and the explanatory comments there appears to be no legislative intent to extend provocation to quarrelsome words alone.

Finding no substantial error in the record, the judgment is affirmed.

Affirmed.

CRAVEN, P. J. and SMITH, J., concur.


source: Caselaw Access Project

author: CRAVEN, P. J.,

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John R. Lockenvitz, Defendant-Appellant.
    Gen. No. 11,163.
    Fourth District.
    April 28, 1970.
    Thomson, Thomson & Mirza, of Bloomington (John Naylor, of counsel), for appellant.
    Paul R. Welch, State’s Attorney of McLean County, of Bloomington (James M. Carr, of counsel), for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

This is an appeal from a conviction, after a bench trial, of an overweight violation and assessment of a fine against the defendant in the sum of $3,542 and costs. The essential facts are not in dispute. Indeed, the parties have followed the commendable practice of stipulating to the facts so far as they are relevant to this proceeding. The defendant was driving a truck with a rockcrushing machine towed behind it. This unit, in the combination referred to, was a “vehicle” for purposes of this case and was overweight by 35,420 pounds as to allowable limits set by section 228(b) of chapter 95%, Ill Rev Stats 1967.

This section of the statute declares it to be a violation whenever a vehicle in excess of the weights therein specified is operated “upon the highways” of this state. In this case the vehicle was operated “across” State Route 66. At no time did the defendant operate the vehicle on a state highway in any direction other than directly across the highway. The penalty for a violation of section 228(b), on the basis of the overweight here, is specified by statute at the rate of ten cents per pound. The imposition of the statutory penalty is required in the event of a finding of guilty. People v. Thompson, 89 Ill App2d 297, 231 NE2d 605 (4th Dist 1967). Section 221 of chapter 95%, Ill Rev Stats 1967, prohibits driving an overweight or oversize vehicle “on, upon or across” any highway. No specific penalty is recited in connection with this section. Thus, section 234 of chapter 95%, Ill Rev Stats 1967, would be applicable. That section calls for a penalty of not less than $10, nor more than $100, or imprisonment for not more than ten days, for a violation “of any provision of this Act for which another penalty is not provided.”

The appellant urges that driving “across” the highway is not prohibited by section 228 (a) but only by section 221(a) and that, accordingly, the general and lesser, rather than the specifically scaled and greater penalty, should have been imposed. He urges that familiar rules of statutory construction compel this re-suit. We are told that “upon” is not the same as “across.” Further, the appellant suggests that when the Legislature meant to say “across” it did so with clarity and precision, i. e., “on, upon or across.” We are then asked to conclude, under these rules of construction, that the mere crossing here involved is not upon but across, and therefore the lesser penalty was the only appropriate remedy. We cannot agree.

At the. point of the crossing, as the vehicle was driven across Route 66, if it was not upon the highway, then where was it? In New York, L. & W. Ry. Co. v. Roll, 32 Misc 321, 66 NYS 748, 752, the court posed the same question and concluded that “No description of its whereabouts at that particular point is better than to say it is ‘. . . upon’ the street where it crosses. It is sufficient, and it is true. It is not necessary that the railroad should pass along the surface of the street in order to be . . . upon it.”

The prohibited operation of a vehicle “upon” includes “across” for the simple reason that you cannot get across without being upon, assuming the surface of the highway to have been used. See In re Syracuse & South Bay Ry. Co., 33 Misc 510, 68 NYS 881; Merrill v. Chicago, North Shore & M. R. Co., 171 Wis 464, 177 NW 613.

It is true that such a conclusion leaves section 221(a) which prohibits vehicles of a size and weight exceeding the limitation specified from being operated on, upon or across with little for the “across” part to prohibit. Rules of statutory construction, however, are meant to be aids useful in ascertaining legislative intent. They are not meant to be barriers that obscure the intent or prohibit its realization. One such rule of statutory construction that a statute should be construed to give meaning to each word and phrase may be offended by our conclusion. Nonetheless, we are not prepared to say that the Legislature, by expressly prohibiting the crossing of highways in certain instances and in using specific prohibitive expression in others did not intend the phrase “operate upon” to apply to driving across.

In Northern Illinois Coal Corp. v. Langmeyer, 342 Ill App 406, 96 NE2d 820 (4th Dist 1951), the court did reach such a conclusion. There, however, the coal company trucks that were involved were operated across a township road from property of the coal company to other property of the coal company. The company owned the fee to the township road over which the public had an easement or right-of-way for public travel. The trucks that were operated across the road exceeded the weight limits applicable to the road, and the statutory language prohibited such operation “upon” and the court held that this did not apply to the crossings.

The conclusion of the court there, however, at least in some measure, seems to have been predicated upon the fact that the public easement was “for purposes of travel” and the use there involved was so regulated by the decree of the lower court as not to “constitute an unlawful encroachment or obstruction upon the road and does not interfere with the easement of the public.” We thus view this case as different on the facts and prefer to distinguish it from Langmeyer. However, insofar as the court there concluded that “upon” didn’t mean “across,” we are not in agreement.

The action of the Circuit Court of McLean County in imposing the specific penalty was correct and that action is affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James O’Laughlin, Defendant-Appellant.
    Gen. No. 11,180.
    Fourth District.
    April 28, 1970.
    John C. Weinman, of Decatur, for appellant.

      Basil G. Greanias, State’s Attorney of Macon County, of Decatur, and Garry E. Davis, Assistant State’s Attorney, for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

The defendant appeals after a plea of guilty to a charge of burglary and a sentence of one to ten years. The defendant asserts in this court that he did not knowingly waive his right to present evidence in mitigation and that his court-appointed counsel was incompetent in failing to request a hearing in mitigation and in his failure to object to certain matters set forth in the probation report. He further askes this court to reduce the sentence as disproportionate to the offense and excessive.

On May 19, 1969, the defendant pleaded guilty to the charge of burglary and filed a petition for probation. The report of the probation officer was thereafter filed and a hearing was held on defendant’s request for probation. The probation report recommended that probation be denied. At the time of the probation hearing the record indicates that the defendant and his court-appointed counsel had read the report of the probation officer and, except for the recommendation, indicated that the information contained therein was substantially correct. The court denied probation and then called the cause for hearing evidence in aggravation and mitigation. The People waived the right to present evidence in aggravation and the defendant, through his attorney, waived the right to offer evidence in mitigation. Thereafter the court sentenced the defendant to an indeterminate term with a minimum of one year and a maximum of ten years.

The trial court then advised the defendant of his right to appeal in accordance with Rule 605 of the Rules of the Illinois Supreme Court (Ill Rev Stats 1967, c 110A, § 605). The defendant at that time indicated he did not want to appeal but at a later date indicated to the court his desire to appeal.

In People v. Nelson, 41 Ill2d 364, 367, 243 NE2d 225, 227 (1969), the court stated:

“The burden of presenting mitigating circumstances in a record falls upon a defendant and it is he who must make a substantial showing in order to justify a reduction of sentence on review. We have held that it is incumbent on the defendant to request hearing, and failure to do so constitutes a waiver. (People v. Muniz, 31 Ill2d 130, 138 [198 NE2d 855].) . . . When defendant’s counsel was asked if he had any witnesses he replied that he did not and when asked if he had any comments he replied T have no comments, your honor.’ A hearing in mitigation and aggravation was had, defendant was given ample opportunity to be heard and his failure to take advantage of it constituted a waiver.”

Here, as in Nelson, the defendant was afforded an opportunity to present anything relevant to sentence in mitigation. This record establishes a waiver of that right.

Having examined the probation report and the information therein contained relevant to the defendant and his prior record, it cannot reasonably be said that waiver of matters in mitigation on behalf of the defendant by and through his counsel establish in any way incompetence of counsel. Nothing is suggested here to indicate that waiver of hearing in mitigation operated to the substantial prejudice of the defendant nor to indicate the incompetence of counsel. See People v. Dean, 31 Ill2d 214, 201 NE2d 405 (1964).

The appellant suggests that it was error for the trial court to receive and consider evidence relating to prior arrests which did not result in convictions and cites in support thereof People v. Jackson, 95 Ill App2d 193, 238 NE2d 196 (1st Dist 1968). In the instant case there was no evidence received in aggravation. The probation report, however, did contain an arrest record from the files of the Decatur Police Department and a record, more commonly referred to as a “rap” sheet, relating to the defendant from the Department of Public Safety, Bureau of Criminal Identification and Investigation. These two documents do indicate occasions where the defendant was arrested and charges made with disposition not shown or dismissal thereof being shown.

Once guilt has been ascertained, either by trial or a plea of guilty, then the sentencing process is undertaken. A sentencing judge is not limited to the narrow issue of guilt nor are the stringent rules of evidence applicable to that stage of the proceeding. His task, within fixed statutory or constitutional limits, is to determine the type and extent of punishment. Highly relevant, if not essential, to his selection of an appropriate sentence is the possession of the fullest information possible. Consideration of the information in the probation report here, at this stage of the case, was not objectionable. See People v. Spann, 20 Ill2d 338, 169 NE2d 781 (1960).

In People v. Forman, 108 Ill App2d 482, 247 NE2d 917 (4th Dist 1969), we discussed the Jackson case which, on its facts, indicates that the trial judge gave consideration and weight to prior arrests which did not result in convictions. There is no such intimation in the record in the instant case, and we adhere to the views expressed in Forman with reference to the desirability of a sentencing judge, after the issue of guilt has been determined, having the fullest information possible relevant to the sentence to be imposed.

We turn next to defendant’s contention that the sentence here is excessive. In this case the court imposed a true indeterminate sentence, employing the statutory minimum as the minimum sentence. The ten-year maximum is not excessive. It is most desirable in the fulfillment of the sentencing function that the sentencing judge impose an indeterminate sentence — one that gives great latitude to parole authorities. That is obviously what the court did in this case, and the sentence here is exactly in accord with every concept of modern penology and sentencing. See: People v. Brown, 60 Ill App2d 447, 208 NE2d 629 (1st Dist 1965); People v. Scott, 117 Ill App2d 344, 253 NE2d 553 (4th Dist 1969). A sentence such as the one here involved affords the appellant early parole eligibility and the opportunity to convince the parole authorities of the desirability of putting him on parole. A sentence such as this decreases the possibility of disparate sentencing. The judgment of the Circuit Court of Macon County and the sentence imposed are affirmed.

Affirmed.

SMITH and TRAPP, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Gregory Cunningham, Defendant-Appellant.
    Gen. No. 11,185.
    Fourth District.
    April 28, 1970.

      Edward Litak, of Danville, for appellant.
    John Unger, State’s Attorney of Vermilion County, of Danville (Larry P. Cramer, of counsel), for appellee.
   CRAVEN, P. J.,

delivered the opinion of the court.

In February of 1969, a petition was filed in the Circuit Court of Vermilion County asking that the appellant, then aged 15 years, be declared a delinquent child. The petition contained the allegation that the appellant entered two residences in Danville with intent to deprive the residents of property, all in violation of a specified section of the Criminal Code. This matter was set for an adjudicatory hearing and no issue is tendered by this appeal as to any procedural defects.

A witness, Joseph Wilson, testified as to his address and to the fact that his residence was broken into and items of personal property, including wristwatch.es and a diamond ring, removed therefrom. Another witness, Ralph Nicholson, also testified as to a burglary of his residence and enumerated the money and property taken therefrom, and described the manner of entry.

An extrajudicial statement of the appellant, taken in the presence of his mother and after complete admonitions as to constitutional rights, was admitted into evidence without objection. This statement, a confession, was witnessed by the mother and the statement recited the breaking of a back door glass at the Nicholson residence and described the property removed therefrom, being essentially the same description as that testified to by Nicholson. The same was true of the breaking into of the Wilson house and the removal of items of personal property from that residence. The circuit court entered an order finding the appellant a delinquent child and adjudging it to be for the best interest of the minor that he be made a ward of the court. The matter was then continued for a dispositional hearing.

This appeal is from that order. It is the contention of the appellant that the extrajudicial confession received into evidence, admitting the offenses described in the petition, is not sufficiently corroborated by other proof to warrant adjudication that the appellant was a delinquent child. The appellant suggests that the extrajudicial confession could not of itself sustain a conviction of a crime and that evidence apart from the confession is needed to prove the corpus delicti. He asserts that the quantum of proof required in a juvenile delinquency adjudicatory proceeding is the same as that required for conviction in a criminal case. This is uncontroverted. See In re Urbasek, 38 Ill2d 535, 232 NE2d 716 (1968). See also Re Winship, 38 USL Week 4253 (US March 31, 1970). In the Winship case the United States Supreme Court explicitly held that which the Illinois Supreme Court determined to have been implicit in the earlier case of Re Gault, 387 US 1, 18 L Ed2d 527, 87 S Ct 1428 (1967).

In 14A ILP, Criminal Law, § 389, cases are collected and cited that hold a voluntary confession of an accused without corroborating evidence is insufficient to authorize a conviction. The independent evidence of the corpus delicti need not of itself be sufficient proof of guilt but need only be a substantial showing which, taken together with the confession, establishes beyond a reasonable doubt the perpetration of the crime by the accused. The corroborating evidence, however, need not establish the fact of the commission of the crime and the defendant’s guilt. The confession and the corroborating evidence may be considered together.

“Corpus delicti” has been defined to mean proof of the fact that a crime has actually been committed and that someone is criminally responsible therefor. See People v. Lueder, 3 Ill2d 487, 121 NE2d 743 (1954).

In this case, the fact that the crimes specified in the petition were shown to have actually been committed is uncontroverted. This fact is established independent of the confession. This evidence, taken together with the confession, establishes not only the fact that a crime was actually committed but further that the appellant was a participant therein. Thus, on the basis of this record, there being no contention of procedural defects nor assertions that the appellant was in any way deprived of any rights at the time of the taking of the statement or its admission, the trial court, as the trier of fact, was clearly warranted in its finding that the appellant should be adjudicated a delinquent. The judgment of the Circuit Court of Vermilion County is affirmed and this cause is remanded to that court for further proceedings.

Affirmed and remanded.

SMITH and TRAPP, JJ., concur.


author: RYAN, J.

text:
    A. M. Eisele, et al., Petitioner-Appellant, v. Morton Park District, Respondent-Appellee.
    Gen. No. 69-41.
    Third District.
    April 29, 1970.

      Moehle, Moehle, Reardon & Sincock, of Peoria, and Don B. Pioletti, of Eureka, for appellants.
    Frank M. Wanless, of Morton, for appellees.
   RYAN, J.

In this action Petitioner-Appellant, A. M. Eisele, together with others, sought to disconnect certain terntory from the Morton Park District, a Municipal Corporation, Respondent-Appellee. The Circuit Court of Tazewell County dismissed said petition because not filed in apt time, from which judgment petitioner has appealed.

The facts set forth in the petition are undisputed. Pursuant to a petition and order under section 2, chapter 105, Ill Rev Stats 1967, an election was held on June 24, 1967, on the question of organizing a park district. The election also included the election of park commissioners who would take office if the formation of the district were approved. The judges of election made their returns to the Circuit Court and on June 27, 1967, the court canvassed the returns and found that the majority of the electors had voted to organize the district. The order also declared the election of the five commissioners receiving the highest number of votes. This petition for disconnection was filed on June 26, 1968. The petition was dismissed on motion of appellee park district which motion alleged that the petition was not filed within the time required by section 3-6b, chapter 105, Ill Rev Stats which section provides, “. . . such petition shall be filed within one year after the park district is organized. . .

The very narrow question presented on this appeal is when is a park district organized? Was the district organized on June 24, 1967 (the date of the election) or June 27, 1967 (the date the returns were canvassed and result declared) ? If the period commences with the earlier date, then the petition was filed too late. If the period commences with the later date, then the petition was filed within the proper time.

Section 3-6b, chapter 105, Ill Rev Stats 1967, which describes the period of time within which the petition to disconnect must be filed, refers to the organization of the district as the event which commences the one year period. Such section does not specify the event which determines when a park district is organized.

So far as Illinois precedents are concerned, there appear to be none dealing directly with the issue at bar. The appellant argues that Western Nat. Bank of Cicero v. Village of Kildeer, 19 Ill2d 342, 167 NE2d 169 warrants a conclusion opposite to that of the trial court. In that case the court stated that under the language of the statute a village comes into legal existence at the time the results of the election are canvassed and the county court officially declares the results to be in favor of incorporation. The language to this effect, however, in the Village of Kildeer case was not necessary to the decision of the case and was dicta. Furthermore, the court in that case had before it a different statute than the one now under consideration.

The appellee relies principally on Indian Creek v. Petitioners for Disconnection, 27 Ill App2d 321, 169 NE2d 598, in which the court stated that the village was organized on the date of the election held to vote upon the proposition of incorporation. Here again, this determination was not necessary to the decision of the case and the language was dicta. Again, as in the Village of Kildeer case the court had before it a statute different from that now under consideration. We consider neither of the above two cases persuasive on the point now before this court.

The authority to create a municipal corporation is a legislative function and any attempt to delegate this authority to courts is a violation of the constitutional principle of separation of powers. 37 Am Jur Municipal Corporations, §§ 7 and 8; City of Galesburg v. Hawkinson, 75 Ill 152.

The legislature may provide by general law for the creation of a municipal corporation on the happening of some future event such as the acceptance of the provisions thereof by a vote of the people and such a provision does not constitute an unlawful delegation of legislative authority. People v. Reynolds, 5 Gilman (10 Ill) 1.

The power to enact laws necessarily includes the right in the lawmaking power (the legislature) to determine and prescribe the conditions upon which the law in a given case shall come into operation. People ex rel. v. Salomon, 51 Ill 37. The legislature may prescribe that the law will become effective on a certain date following its approval at an election. Erlinger v. Boneau, 51 Ill 94. It is competent for the legislature to pass a law which by its own terms may be made to depend “upon any other indifferent contingency the legislature in its wisdom may prescribe.” Home Ins. Co. v. Swigert, 104 Ill 653.

In Blake v. The People for Use of Caldwell, 109 Ill 504, the statute providing for the organization of drainage districts provided for the performance of certain acts and a determination by the court that such acts had been performed and further provided:

“and upon entering of such order of record said district is hereby declared to be organized as a drainage district.”

The court stated at page 511 :

“It is the statute that creates the corporation,— not the county court; but the statute only becomes operative when the prescribed facts are found, and the finding is entered of record by the county court, as directed by the act.”

The court here determined that the language of the act prescribed that the drainage district came into being at the time that the court entered the order declaring the same to be organized as a drainage district.

In certain school cases our courts have found in the language of the legislative act an expression of intent that the school district came into existence on the day of the election on the proposition of establishing the school district. People ex rel. Bodecker v. Community Unit School Dist. No. 316, 409 Ill 526, 100 NE2d 573; People ex rel. Smail v. Board of Education, Community Unit School Dist. No. 202 of Fayette County, 343 Ill App 362, 99 NE2d 385.

We conclude from an analysis of the authorities that the legislature may prescribe the future event which will bring into existence a municipal corporation. Such an event may be the election on the proposition. It may be the canvass of the results of the election and the entry of an order declaring the results thereof or it may be some other event prescribed by the legislature.

In examining the Park District Code (Ill Rev Stats 1967, chapter 105, section 1-1 et seq.) in search of an expression of legislative intent as to the event which shall bring a park district into existence, we note the usage of language in several sections of the Code which in our opinion is indicative of legislative intent. Section 2-6 is entitled “Canvass of Returns.” This, section provides as follows:

“The judges at such organization election shall make return thereof to the said circuit judge. The said judge shall canvass such returns and shall enter an order upon the records of his court determining and declaring the remits of the election. . . .” (Emphasis added.)

The italicized words of this section as above quoted are indicative of legislative intent. The legislature calls the election the “organization election” which is an expression of intent that it is the election which effects the organization of the district. Further, this section makes it clear that the order of the court only determines and declares the results of the election. It does not provide as did the statute in Blake v. The People for Use of Caldwell, supra, “and upon entering of such an order of record said district is hereby declared to be organized.”

Section 2-7 is entitled “District Deemed Organized” and provides in part:

“. . . in case a majority of the votes cast upon the question so submitted shall be in favor of the establishment of such district, said district shall then be deemed organized. . . . (Emphasis added.)

The word “then” in this section refers back to the casting of a majority of votes in favor of the proposition as the event which brings into existence the district and does not refer to the canvassing of the results of the election and the entry of an order by the court declaring the same. Neither the canvass of the returns nor the entry of such an order is mentioned in this section 2-7 which is entitled “District Deemed Organized.”

Finally, we find further expression of legislative intent on this subject in section 2-7.1 which is entitled “Two or more park districts within municipality — New district deemed organized.” This section provides in part:

“In case of a proposal to organize a park district as provided in Section 2-2.1, the district shall be deemed organized if the proposal to organize . . . receives the favorable vote of a majority of all votes cast on the question, and also receives the favorable vote of a majority of the votes cast within each of the existing park districts .... Thereupon the old park districts shall cease to exist, and the newly organized district shall succeed to all of their property. . . .” (Emphasis added.)

In this section as in section 2-7 the canvass of the returns and the entry of an order by the court declaring the results of the election are not mentioned. The word “thereupon” as used in this section refers to the casting of the majority of the votes in favor of the proposition as being the event which brings a new district into being and dissolves the old district.

From an analysis of the above provisions of the Park District Code we conclude that a park district is organized within the meaning of that term as used in section 3-6 (b) on the date of the election on the proposition for the establishment of a park district and that the petition to detach therefrom must be filed within one year from the date of the election on the proposition.

Accordingly, the decision of the Circuit Court of Tazewell County is affirmed.

Affirmed.

STOUDER, P. J. and ALLOY, J., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Mildred Daly, Administratrix of the Estate of Donna C. Daly, Deceased, Plaintiff-Appellant, v. James H. Bant and John Konecnik, Defendants-Appellees.
    Gen. No. 69-194.
    Second District.
    April 29, 1970.

      Thomas L. Ruth, Jr., of Barrington, for appellant.
    Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

This case presents the ever-troublesome issue of the circumstances under which the trial judge may properly determine that the evidence presents no factual question for the jury’s consideration, and that the verdict should be directed.

At about 7 p. m., on July 29, 1967, Donna C. Daly, 15 years of age, was a passenger in a Ford automobile, presumably driven in a westerly direction on Three Oaks Road by William Cunningham. Their destination at the time was the New Place Teen Club on Route 31.

At the time and place in question, the defendant, James H. Bant, individually and as agent or employee of the defendant, John Konecnik, was driving a milk-truck tractor and trailer in a southerly direction on Route 31. Three Oaks Road intersects Route 31 near the crest of a hill, a short distance south of Route 14. All traffic on Three Oaks Road is required to stop before entering Route 31. The milk truck and the Ford car driven by Cunningham collided at the intersection of Three Oaks Road and Route 31. As the result of this collision, Donna C. Daly received bodily injuries which caused her death.

Mildred Daly, Administratrix of the Estate of Donna C. Daly, deceased, filed a wrongful death action against the defendants, James H. Bant and John Konecnik, wherein she alleged that Bant, individually and as agent of Konecnik, was guilty of the following acts or omissions at the time and place in question:

(a) failed to keep a proper lookout;

(b) operated the motor vehicle at an excessive rate of speed in violation of section 49 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 95%, par 146);

(c) failed to keep his motor vehicle under control;

(d) followed traffic ahead of his vehicle too closely in violation of subsections (a) and (b) of section 61 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1967, c 95%, par 158 (a) (b)).

These allegations were denied in the answer filed by the defendants, as were the other material allegations of the complaint.

Occurrence witnesses, Charles T. Stark, Jr., age 16, and Thomas Kleeman, age 15, testified on behalf of the plaintiff. Stark testified on direct examination that the car which he was driving entered Route 31 from Route 14; that he was driving in a southerly direction on Route 31 at a speed of 65 m. p. h., and was destined for the New Place Teen Club; that he noticed no traffic in front of him, but was aware of a truck which followed him closely for about one-half mile to the intersection of Route 31 and Three Oaks Road; that the truck was about three feet to the rear of his car as he went through the intersection; that he saw no traffic at the intersection; and that when he was a half block past the intersection, he saw a Ford car bounce off the side of the truck at the intersection.

On cross-examination, Stark stated that as he drove up the hill approaching the intersection, the truck stayed about three feet behind his car; that his car was travel-ling at a speed of 65 m. p. h.; that the truck slowed down as it approached the intersection; that he did not see any cars as he passed through the intersection; and that he saw the accident occur through his rear view mirror when his car was about one-half block beyond the intersection.

Stark was then handed a statement which he had made on August 5, 1967, and he acknowledged that therein he had stated that the Cunningham car was travelling 65 m. p. h. when the accident happened; and that the truck was in the center of the intersection at the time.

Kleeman testified, on direct examination, that he was a passenger in the left rear seat of the Stark car at the time of the occurrence; that just before the collision, the traffic was clear on Route 31; that as the car in which he was riding approached the intersection, the truck was following behind it a distance of about one car length, and at the intersection, the truck was about two car lengths behind; that the speed of the car in which he was riding was from 60 to 65 m. p. h.; that he did not remember seeing any traffic on Three Oaks Road as he passed through the intersection; and that thereafter, he noticed that the truck in question was involved in a collision there.

On cross-examination, Kleeman testified that he did not see any cars approaching Route 31 on Three Oaks Road. He also stated that in a statement given on August 7, 1967, he estimated that the speed of the truck before the collision was about 50 m. p. h., and to the best of his knowledge, the car in which he was riding was travelling around 60 m. p. h.; and that at the time of the collision, the truck was five car lengths behind the car in which he was riding. It was his opinion that the Cunningham car slid into the truck. On redirect, he stated that just prior to the collision, the truck was following behind the car in which he was riding, a little less than a car length.

Two witnesses testified that the decedent was industrious, responsible and an excellent scholar. Photographs of the vehicles involved in the collision, and exhibits relative to the earnings of the decedent, were received in evidence. No further evidence was offered on behalf of the plaintiff.

The defendants filed a motion for a directed verdict at the close of the plaintiff’s case. This motion was granted, a verdict was directed in favor of the defendants and judgment was entered on the verdict. The plaintiff filed a motion for a new trial which was denied, and this appeal followed.

The plaintiff here contends that whether the defendant, Bant, kept a proper lookout was solely a jury question; that it was the province of the jury to resolve this question of fact, all conflicts in the evidence, the reasonable inferences to be drawn therefrom, and the credibility of the witnesses; that the truck driven by the defendant Bant was, pursuant to section 49 of the Uniform Act Regulating Traffic on Highways, restricted to a speed of 50 m. p. h. as it approached the intersection; that the defendant Bant was also under duty to decrease the speed of the truck when approaching the crest of the hill and when crossing the intersection; that the plaintiff had a right to elect whether to sue the driver of the Cunningham car and the defendants, or any one of them; and that the issue of whether separate acts of negligence occurred as the proximate cause of the plaintiff’s injury was also for the determination of the jury.

There was no testimony which detailed how the collision occurred. The evidence indicated that the defendant Bant was driving the milk truck in a southerly direction on Route 31 at a speed of from 50 to 65 m. p. h.; that he was following the car driven by Stark at a distance of from three feet to one car length; and that, at the intersection, the truck was about two car lengths behind the Stark car. Neither Stark nor Kleeman testified that they saw any traffic on Three Oaks Road. When the Stark car was about one-half block beyond the intersection, Stark, through his rearview mirror, saw a car bounce off the truck when the truck was in the center of the intersection. Kleeman was of the opinion that the ear slid into the side of the truck. Stark gave a statement that the Cunningham car was travelling 65 m. p. h. immediately before the collision.

Photographs, which were admitted in evidence, showed extensive damage to the front of the Cunningham car and also revealed a stop sign at the intersection which required traffic on Three Oaks Road to stop before entering upon Route 31. The foregoing testimony, the exhibits, and the photographs, constitute the entire evidence in this case.

Trial courts direct verdicts in order to promote the efficient and expeditious administration of justice where no substantial factual dispute exists. Our constitution carefully preserves the rights of litigants to have a substantial factual dispute resolved by the jury, in that it is here that the evaluation of the credibility of witnesses may prove decisive. See: Illinois Constitution, Article II, section 5.

In Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), at pages 504 and 505, the court said:

“But the presence of some evidence of a fact which, when viewed alone may seem substantial, does not always, when viewed in the context of all of the evidence, retain such significance. As the light from a lighted candle in a dark room seems substantial but disappears when the lights are turned on, so may weak evidence fade when the proof is viewed as a whole. Constitutional guaranties are not impaired by direction of a verdict despite the presence of some slight evidence to the contrary (Chamberlain; Blume, ‘Origin and Development of the Directed Verdict,’ 48 Mich L Rev 555, 576-7), for the right to a jury trial includes the right to a jury verdict only if there are factual disputes of some substance.”

And, at page 510, the court said:

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

The fragmentary evidence on the issue of the defendants’ negligence did not establish that the defendant Bant failed to keep a proper lookout; operated the truck at an excessive rate of speed in violation of section 49 of the Uniform Act Regulating Traffic; failed to keep his motor vehicle under control, or followed traffic ahead of his vehicle too closely in violation of subsections (a) and (b) of section 61 of the Uniform Act. In addition, this evidence did not establish any relationship between the alleged negligence of the defendants and the proximate cause of the decedent’s injury and death. There was no direct evidence relative to what took place prior to and at the time of the collision, and there was no proof that the Cunningham car came to a stop before entering the intersection.

The alleged statutory violation by the defendants, even if true, did not constitute negligence per se. Piper v. Lamb, 27 Ill App2d 99, 109, 169 NE2d 164 (1960). The mere failure to perform a statutory duty does not necessarily constitute negligence; a party may be negligent if the circumstances under which he, she, or it fails to observe the statute indicate a neglect of duty; but the mere failure, alone, to comply with the statute, may not be negligence. Brackett v. Builders Lumber Co. of Decatur, 253 Ill App 107, 112 (1929). The violation of a statute by acts of omission or commission, is only prima facie evidence of negligence. Burke v. Zwick, 299 Ill App 558, 563, 20 NE2d 912 (1939). In the case at bar, the violation of a statute must be considered with all the other facts and circumstances in determining whether the defendants were negligent before and at the time of the occurrence in question.

The law requires affirmative and positive proof of actionable negligence as the proximate cause of the injury or damage suffered to warrant an assessment of damages. The causal relation between the alleged negligence and the injury must be established by a preponderance of the evidence and with reasonable certainty. Withey v. Illinois Power Co., 32 Ill App2d 163, 170, 177 NE2d 254 (1961). Such proof was not presented in the case at bar.

In her complaint, the plaintiff alleged that the decedent, at the time and place in question, was in the exercise of ordinary care for the safety of her person and the defendants denied this allegation. No evidence was offered on behalf of the plaintiff, either with reference to the conduct of the decedent, or the driver of the car in which she was riding, at and immediately prior to the collision; and no evidence was offered to establish that the decedent was a girl of careful habits. The failure of the decedent to exercise ordinary care constituted contributory negligence which would bar recovery.

In McInturff v. Chicago Title & Trust Co., 102 Ill App2d 39, 243 NE2d 657 (1968), at page 46, the court stated:

“It has long been the law that ordinary care in a particular case is that degree of care which is exercised by ordinarily prudent persons under the same or similar circumstances; that a person has no right to knowingly expose himself to danger and then recover damages for an injury which he might have avoided by the exercise of ordinary care; that a failure to see what is clearly visible is not such conduct as is compatible with due caution for one’s own safety; . . .
“The burden rests on the plaintiff in a wrongful death action to prove that the decedent was in the exercise of due care at the time he sustained the injury causing his death, and where there were no eyewitnesses to the accident, it is competent to prove that the deceased was a man of careful habits. Petro v. Hines, 299 Ill 236, 238, 239, 132 NE 462 (1921).”

In this case there is an absence of any direct or positive evidence that the defendants’ negligence was the proximate cause of the decedent’s injury; an absence of any substantial proof that the defendants were guilty of negligence; and the plaintiff has failed to prove that the decedent was in the exercise of ordinary care for her own safety at and immediately prior to the collision which caused her death.

Under these circumstances, we believe that it may fairly be said, that all of the evidence when viewed in its aspect most favorable to the plaintiff, so overwhelmingly favors the defendants that no contrary verdict based on this evidence could ever stand.

. Consequently, we find that the trial court properly directed a verdict for the defendants at the close of the plaintiff’s case. Thus, the judgment of the trial court is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: JONES, J.

text:
    In the Matter of the Estate of Leon Jarodsky, Deceased. Mary Jarodsky, Claimant-Appellee, v. Citizens National Bank of Paris, Administrator-Appellant.
    Gen. No. 11,116.
    Fourth District.
    May 4, 1970.

      George V. Dole, of Paris, for appellant.
    Roger Fruin and Carl A. Lund, Fruin & Lund, of Paris, for appellee.
   JONES, J.

Defendant, administrator of the estate of Leon Jarodsky, deceased, appeals from an Order of the Circuit Court partially approving the claim of Petitioner, Mary. Jarodsky, against decedent’s estate.

The facts disclose that Leon and Mary Jarodsky were married in 1937. It was his second marriage and he had two daughters by a previous marriage. Mr. Jarodsky engaged in a real estate business in which he bought, sold and rented properties in Edgar County, Illinois, and Vermillion County, Indiana, during the years 1943 to 1956. In those years thirty-six parcels of real estate were acquired, in four of them Leon Jarodsky was the sole grantee and in thirty-two of them Leon Jarodsky and Mary Jarodsky were the grantees. In the latter years of this operation, and culminating in 1956, the real estate properties were converted to cash and the proceeds deposited in banks in St. Louis, Missouri, in five savings accounts, three in the name of Leon Jarodsky, sole, and two in the names of Leon and Mary Jarodsky, jointly. In 1956, decedent withdrew $35,000 from the St. Louis bank accounts for use in purchasing two theater properties in Paris, Illinois, the deeds to which conveyed title to Leon Jarodsky, sole. The theaters were operated by decedent until his death intestate in 1966. Mary Jarodsky assisted in the operation of the theaters by taking tickets, cleaning, etc.

Appellant was appointed administrator of the decedent’s estate. The attorney for the administrator was Ward Dillavou who also had served as attorney for deeedent for many years prior to his death. The administrator filed an inventory which listed the two theater properties in Paris, Illinois, as being the sole property of the decedent. The widow, Mary Jarodsky, asserting that the real estate business was a joint operation of herself and decedent, and that one-half of the profits therefrom were hers, filed her Amended Statement of Claim against the estate of her deceased husband in three counts, one based on an alleged contract, another for declaration of a resulting trust, and the third for declaration of a constructive trust. The Defendant administrator filed an answer and an affirmative defense of loches. • One of the decedent’s daughters, with leave of court to intervene, filed an answer.

The attorney for the administrator, in anticipation of being a witness at the hearing on the claim, withdrew and special counsel was appointed to represent the administrator in defending against the claim.

After a hearing the trial court found that the real estate business had been operated as a partnership of Leon Jarodsky and Mary Jarodsky; that the net profits of the partnership business, plus interest earned, was $30,-023.40; that Mary Jarodsky’s share of $15,011.70 represented 42.88% of the total deposits in the St. Louis bank accounts and accordingly 42.88% of the $35,000 withdrawn for purchase of the Paris theater properties was her money and was used for the investment. The court further found that the fair cash market value of the two theaters was $42,500; that Mary Jarodsky had proven her claim, based upon a resulting trust; that 42.88% of the value of the theaters is $18,224, for which amount the claim was approved, to be paid in due course of administration. Defendant administrator appealed but was not joined by the daughter of the decedent.

It has been frequently stated by Illinois' courts that where the purchase money for land is paid by one person and the title conveyed to another the law construes such facts to constitute a resulting trust. As stated in Baughman v. Baughman, 283 Ill 55, 119 NE 49:

“ ‘A resulting trust does not arise from or depend upon any agreement between the parties. Its very name implies that it is independent of any contract and is raised by the law itself upon a particular state of facts. It results from the fact that one man’s money has been invested in land and the conveyance taken in the name of another. It is immaterial whether the purchase was made and the money paid by the trustee or the cestui que trust. This may be done by either without the knowledge of the other. No matter how or by whom done, if the fact exists,— if it was done at all, — by mere operation of law a trust is raised in favor of the party whose money was used to purchase the land, either to the whole or his equivalent portion of the land.’ (Bruce v. Roney, 18 Ill 67.) Such a trust also ‘results in favor of one who pays only a part of the price. In other words, where two or three persons together advance the price and the title is taken in the name of one of them, a trust will result in favor of the other with respect to an undivided share of the property, proportioned to his share of the price.’ 3 Pomeroy’s Eq Jur sec 1038; Hinshaw v. Russell, 280 Ill 235.” See also West v. Scott, 6 Ill2d 167, 128 NE 2d 734; Wright v. Wright, 2 Ill2d 246, 118 NE2d 280; Craven v. Craven, 407 Ill 252, 95 NE2d 489.

Where a man pays for land and causes it to be conveyed to his wife or child the presumption is that it was intended as a gift or advancement. Reed v. Reed, 135 Ill 482, 25 NE 1095. The reasons for so holding do not apply, however, where the wife pays for the land and causes it to be conveyed to her husband. Wright v. Wright, supra.

The burden of proof rests upon the party seeking to establish a resulting trust, and the evidence to be effective for this purpose must be clear, convincing, unequivocal and unmistakable and must establish beyond a doubt the payment by the claim beneficiary at the time the title was taken in the alleged trustees. Baughman v. Baughman, supra; Heineman v. Hermann, 385 Ill 191, 52 NE2d 263; West v. Scott, supra.

In this case the trial court found that the consideration furnished by the claimant for part of the purchase price of the Paris theater properties came from her share of the profits of the real estate business which had been deposited in the St. Louis bank accounts. Claimant’s evidence of the partnership and of the profits therefrom was based in principal part upon purported books of account of decedent containing financial records of purchases, sales and rentals of real estate properties over an eleven year period. Defendant strenuously objected at the trial to the books of account being admitted into evidence and asserts here that their admission was error and requires reversal, there being no other sufficient evidence of a partnership nor of any interest of claimant in the St. Louis bank accounts. In its order approving the claim, the trial court expressly found that the record books of account submitted by the claimant into evidence (Exhibits 1 through 11) were admissible as record books of a partnership between decedent and claimant and that the record books were largely in the handwriting of decedent and are books of account admissible into evidence. Over objections of defendant administrator, claimant testified on direct examination that the exhibits “are the books that my husband kept each year for the real estate and for taxes and for equipment that he bought and sold, that the books were kept by decedent and his employees, that claimant had occasionally written in the books herself and that what she wrote was as instructed

by the decedent.” Called as a witness by claimant, Attorney Dillavou testified that he had been attorney for the decedent for many years, could recognize his handwriting, and identified a large portion of the handwriting in the exhibits as being that of decedent, including the following entry which was made at the top of page one of claimant’s Exhibit 1: “All real estate operation is partnership Leon & Mary Jarodsky joint title & bank acct.” Another witness called by claimant was an employee of an accounting firm who did work for decedent from 1946 to 1948, who testified that a Mr. McKnight, deceased at the time of the trial, had been an accountant employed by the same firm and that an entry on page twenty-one of Exhibit 2 was in the handwriting of Mr. McKnight. That entry was undated and was headed “partnership — Leon and Mary Jarodsky.” The entry was a summary of the capital contributions of Leon and Mary to the partnership and shows that the total partnership investment was $7,200 and that each of the partners had contributed, at different times and in different amounts, one-half thereof. The las* notation on that page was “bank account is jointly owned.”

Claimant was incompetent to testify to any transactions between herself and decedent because of Section 2 of the Evidence Act (c 51, § 2, Ill Rev Stats). It is Defendant’s contention that there was insufficient foundation laid to permit the record books to be admitted into evidence pursuant to section 3 of the Evidence Act (c 51, § 3, Ill Rev Stats). Defendant argues that claimant made no showing that the books of account were original entries, made by decedent in the usual course of business, and true and correct, as required by the statute and cases such as Rude v. Seibert, 22 Ill App2d 477, 161 NE2d 39; National Malleable Castings Co. v. Iroquois Steel & Iron Co., 333 Ill 588. It is true, as Defendant contends, that if the account books had been those of the claimant the foundation proof was insufficient to justify admitting the books into evidence. However, that thrust of Defendant’s argument overlooks the fact that the account books in question are not those of the claimant-witness, but those of decedent. The claimant testified that the account books were those of the deceased and kept by him each year in the real estate business and identified much of the handwriting as decedents. Her testimony in that regard was properly admitted. In re Weiss’ Estate, 299 Ill App 620, 20 NE2d 177; People v. Lefens’ Estate, 269 Ill 472, 109 NE 965. In addition to the foundation testimony of the claimant, Attorney Dillavou testified to the profusion of entries in the account books in the handwriting of the decedent. Under these facts we deem it immaterial whether sufficient foundation was laid to admit the books under section 3 of the Evidence Act, or whether the books would be admissible under Supreme Court Rule 236. The books were properly shown to have been those of the decedent, they were replete with his handwritten entries made over a span of eleven years of real estate business, they contained in his writing a statement that there was a partnership of himself and claimant, they contained in the writing of an employee an explicit statement of a partnership showing the capital contributions of the partners. The fact that some of the entries in the books were made by decedent’s employees and some by the claimant in nowise rebuts the presumption that the books were those of the decedent and admissible in evidence as admissions binding on him and his estate. People v. Lefens’ Estate, supra; Weigle v. Brautigam, 74 Ill App 285. Defendant’s contention that the statement of partnership by decedent and his employee could have been spuriously made after decedent’s death is belied by the jaded appearance of the statements, as much so as the remainder of the books in which they were contained. We believe the trial court was correct in admitting into evidence the books of account as an admission of decedent and we note, as the trial court must have done, that Defendant offered no evidence to show that the account books were incorrect, incomplete, ingenuine, or in fact, anything other than that which they appear to be, the books of account of decedent. The trial court was correct in admitting the books of account into evidence and in finding that the real estate business was a partnership of decedent and claimant, that one-half the profits therefrom were claimants and that when decedent used claimant’s funds in purchasing the theater properties in his own name, a resulting trust arose pro tanto, in favor of claimant.

Defendant also argues that the claim of petitioner should be defeated by loches, pointing out that the theater properties were acquired by decedent in his own name in 1956 and that claimant made no effort to assert her interest until after the death of decedent. It is asserted that by the one act of acquiring the theater properties in his own name Leon Jarodsky stripped his wife of substantially all of her funds and it should be expected that she would have at once set about redressing such a grievous wrong. While defendant shows that there had been a ten-year lapse of time in which the claimant could have maintained an action for an interest in the theater properties during her husband’s lifetime, no evidence whatsoever was offered to show that claimant’s delay had any adverse effect or prejudice upon the rights of the estate or anyone concerned. No rights of third persons have intervened. Laches depends on the facts of each case, and no simple yardstick can be devised by which a plaintiff’s diligence can be measured. The fact that a family relationship existed, with consequent hesitation to litigate, is a proper matter to be considered on the issue of loches. Urban v. Brady, 86 Ill App 2d 158, 230 NE2d 65. Claimant and Leon Jarodsky remained husband and wife and resided together as such from the time of his acquisition of the theater properties until his death. As between parties standing in intimate personal relationship with each other, great leniency is indulged in the application of the doctrine of loches. Remus v. Schwass, 406 Ill 63, 92 NE2d 127; Lutyens v. Ahlrich, 308 Ill 11, 139 NE 50; Ryder v. Emrich, 104 Ill 470.

Nothing appears in the record of this case that would require petitioner’s claim to be barred by loches.

For the foregoing reasons the order of the trial court allowing plaintiff’s claim will be affirmed.

Affirmed.

CRAVEN, P. J. and TRAPP, J., concur.


text:
    Jack R. Cox, Administrator of the Estate of Roxanne Cox, Plaintiff-Appellant, v. Richard I. Nicholes, Administrator of the Estate of Joan Cox, Deceased, Defendant-Appellee.
    Gen. No. 11,171.
    Fourth District.
    May 4, 1970.
    John T. Allen, of Danville, for appellant.

      Hutton, Hegeler, Buchanan & Laury, of Danville (Jackson R. Hutton, of counsel), for appellee.
   TRAPP, J.

Plaintiff, as administrator of the estate of a child aged six years, brought action against the estate of the mother of the child. The deaths resulted when the automobile driven by the mother was struck by a train.

Prior to trial the court ordered that a count alleging ordinary negligence be stricken and dismissed. At the trial the court directed a verdict for the defendant upon a count alleging willful and wanton negligence of the mother.

Upon this appeal, the issue is whether the court erred in such disposition of the count for ordinary negligence. Defendant’s motion did not specifically plead the “Guest” statute, chapter 95%, § 9-201, Ill Rev Stats 1965, but did allege that plaintiff could not recover without proof of willful and wanton negligence. The cause is argued here upon the basis of the application of the statute.

The issue at hand was determined by the opinion of the Supreme Court in Rosenbaum v. Raskin, 45 Ill2d 25, 257 NE2d 100. The Court said:

“We therefore hold that it would be unreasonable to assume that the legislature intended the statute to apply to a child of the tender age of seven years or under.”

The order of the trial court which struck and dismissed the count for ordinary negligence is reversed, and the cause is remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

CRAVEN, P. J. and SMITH, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Village of Riverwoods, a Municipal Corporation of Illinois, Plaintiff-Appellant, v. County of Lake, a Body Politic and Corporate of Illinois, and Travenol Laboratories, Inc., a Wholly Owned Subsidiary Corporation of Baxter Laboratories, Inc., Defendants-Appellees.
    Gen. No. 69-159.
    Second District.
    May 4, 1970.

      Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellant.
    McClory, Lonchar, Nordigian and Clark of Waukegan, Jack Hoogasian, State’s Attorney of Lake County, of Waukegan, and Bell, Boyd, Lloyd, Haddad & Bums, of Chicago, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

In May, 1968, Travenol Laboratories, Inc. petitioned the Lake County Board of Appeals for amendments and variations to the Lake County zoning ordinance concerning 181 acres of land owned by them bounded on the west by Saunders Road, on the north by Hawthorne Lane, on the east by .the northern Illinois Toll Road, and on the south by County Line Road; 130 acres consisting of various tracts of land, to be rezoned by amendment to “Limited Industrial” classification and “Office and Research” classification from the present classification of “Office and Research” and “Suburban Residential” classifications, respectively, and variations on a 51-acre tract zoned “Office and Research” to permit parking lots and driveways for occupants of the industrial tract. The area of 51 acres proposed to be used as a parking lot is on the west side of the property adjacent to the Village of Riverwoods. The Village of Deerfield is separated from that part of the subject property to be rezoned, on the east side, by the Toll Road.

The Village of Riverwoods filed a protest against the petition, but the Lake County Board of Supervisors, pursuant to the recommendation of the Zoning Board of Appeals, passed a resolution granting the rezoning amendments and variations on the 181 acres. Although the resolution did not carry by a three-fourths favorable vote, the Board declared the resolution passed and adopted. Thereafter, in this declaratory judgment action, filed by Riverwoods, the trial court held that the Village of Deerfield, not Riverwoods, was the nearest adjacent municipality to the land affected by amendments; that, since Deerfield did not protest the amendments, a three-fourths vote of the Board of Supervisors was not required to grant the amendments; that all requirements of section 3158, chapter 34, Ill Rev Stats 1967, had been met and that the reclassification amendments were thus valid in all respects. The court also held that the validity of the amendments granted under section 3158, the validity of the variation granted under section 3154, were separate and distinct issues of law; that the driveways and parking lots which were allowed by the variation were proper subjects for the variation under section 3154, and no amendment under section 3158 was necessary for such uses; that the reason for granting the variation was properly set forth in the resolution of the Board of Supervisors; and that the variation was in full compliance with section 3154 and valid in all respects.

On July 10, 1969, the Village of Riverwoods filed its notice of appeal from the order granting summary judgment to Travenol and denying Riverwoods’ cross motion for summary judgment.

The contentions of Riverwoods, as stated, are: (1) that a single zoning petition with mutually supporting requests for amendments and variations affecting 181 acres of land is, in effect, a request for a legislative amendment; such a major change to such an extensive tract of land has a direct effect on the existing character and zoning integrity of an immediately adjacent municipality ; and where the muncipality whose boundaries were nearest and immediately adjacent to the land affected filed a written protest, the resolution of the County Board, in amending the zoning classification and granting a variation without a three-fourths favorable vote was invalid; (2) the resolution of the County Board of Supervisors granting a variation to the defendant Travenol was invalid because there was no proof submitted by the petitioner of practical difficulties or particular hardship in the way of carrying out the county zoning and building ordinances; nor were there any findings of fact specifying statutory reasons for making the variations included in or accompanying the resolution of the County Board granting the requested variations.

In opposition to these contentions the County of Lake and Travenol Laboratories, Inc., state: (1) the validity of the zoning amendments granted pursuant to section 3158, and the validity of the variation granted pursuant to section 3154, present separate and distinct questions of law; the validity of the rezoning amendment being determined solely by the terms of section 3158, and the validity of the variation being determined solely by the terms of section 3154; (2) the circuit court properly ruled that the zoning amendments granted Travenol pursuant to section 3158 by the Lake County Board of Supervisors were valid; (3) the circuit court properly held that the zoning variation granted Travenol pursuant to section 3154 by the Lake County Board of Supervisors was valid.

Section 3158, chapter 34, Ill Rev Stats 1967, pertaining to zoning reads in part as follows:

“The regulations imposed and the districts created under the authority of this Act may be amended from time to time by ordinance or resolution, after the ordinance or resolution establishing same has gone into effect, but no such amendments shall be made without a hearing before the board of appeals. ... In case of written protest against any proposed amendment, signed and acknowledged by the owners of twenty percent of the frontage proposed to be altered, or by the owners of twenty percent of the frontage immediately adjoining or across from an alley therefrom, or by the owners of twenty percent of the frontage directly opposite the frontage proposed to be altered, or in cases where the land affected lies within one mile and one-half of the limits of a zoned municipality, by the city council or president and board of trustees of the zoned municipality with limits nearest adjacent, filed with the county clerk, such amendment shall not be passed except by the favorable vote of three-fourths of all the members of the county board.”

Section 3154 of the same statute pertaining to variations reads in part as follows:

“The regulations by this Act authorized may provide that a board of appeals may determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any of such regulations relating to the use, construction or alteration of buildings or structures or the use of land; or the regulations by this Act authorized may provide that the county board may, by ordinance or resolution determine and vary their application in harmony with their general purpose and intent and in accordance with general or specific rules therein contained in cases where there are practical difficulties or particular hardship in the way of carrying out the strict letter of any such regulations relating to the use, construction or alteration of buildings or structures or the use of land; provided, however, that no such variation shall be made by such county board without a hearing before the board of appeals. . . .
“Where a variation is to be made by ordinance or resolution, upon the report of the board of appeals such county board may by ordinance or resolution without further public hearing adopt any proposed variation or may refer it back to the board of appeals for further consideration and any proposed variation which fails to receive the approval of the board of appeals shall not be passed except by the favorable vote of three-fourths of all the members of the county board. Every such variation, whether made by the board of appeals directly or by ordinance or resolution after a hearing before a board of appeals shall be accompanied by a finding of fact specifying the reason for making such variation.”

In essence, the contention of the Village of Riverwoods is that no matter in what guise the factual situation is presented in the petition for both zoning amendments and variations, on such an extensive tract of land it is a request for a major zoning change and, in fact, is a request for legislative amendment. Therefore, the granting of this major zoning change was invalid because the resolution of the County Board was adopted by less than three-fourths favorable majority after the Village had filed its written protest. Plaintiff cites the case of Sinclair Pipe Line v. Richton Park, 19 Ill2d 370, 167 NE2d 406, in which the court stated at page 373:

“The variation procedure as prescribed in the act is designed to provide a flexible method for relaxing the rigid requirements of the ordinance in cases of individual need. It is not designed to work major changes in the zoning plan. Amendments by the legislative body are available for that purpose. Ill Rev Stats 1959, chap 34, par 3158.
“The property here involved is a large tract that constituted a major portion of the residential zone of which it is a part. A variation for an industrial use would radically alter the nature of the entire zone. Under these circumstances the authority of the zoning board of appeals to grant a variation is open to serious question.”

However, the factual situation in that case is entirely different from the factual situation presented herein. In Sinclair the zoning was primarily residential and the variation was for an industrial use. In Traders Development Corp. v. Zoning Board of Appeals of Peoria County, 20 Ill App2d 383, 156 NE2d 274, it was held that an ordinance cannot add to, subtract from, or affect the provisions of the statute, and it was ruled that the zoning ordinance which made certain provisions of section 3154 applicable to amendments granted under sectian 3158 was invalid. In Rector v. Board of Appeals Under Zoning Ordinance of City of Danville, 342 Ill App 51, 95 NE2d 99, it was held that a change in the zoning ordinance to allow construction of a water storage tank on lots zoned for residential purposes was a “variance” and was not a change in classification from residential to heavy industrial as to require proceedings under provisions relating to amendment of zoning regulations.

Both the Traders case and the Rector case recognize the complete independence of sections 3154 and 3158. We believe that the circuit court correctly held these two sections are independent of each other, and that Riverwoods’ contention that its proximity to land for which a variation was granted, pursuant to section 3154, gave it a right to require a three-fourths vote under section 3158 is without merit. Also, under section 3158 Riverwoods had no right to file objections since the factual situation is that Riverwoods was not the nearest adjacent village to the land rezoned by amendment.

In Village of Bannockburn v. Lake County, 17 Ill 2d 155, 160 NE2d 773, the court was concerned with the definition of the word “frontage” as used in section 3158, and stated at pages 158 and 159:

“In reading the language of the statute here, we find no need whatsoever for construction, interpretation or labored effort to ascertain the legislative intention. In this statute there is neither ambiguity nor room for construction. It seems to us abundantly clear that the legislature expressed its intention in clear and unmistakable terms and the only function of the court under such circumstances is to declare and enforce the law as enacted by the legislature.”

As the language of both sections under consideration is unambiguous, to accept the arguments of plaintiff would render null and void certain distinctions the legislature saw fit to enact into law. This we cannot do.

We next consider plaintiff’s contention that the resolution of the County Board granting the variation was invalid because it did not comply with the requirements of section 3154 inasmuch as no findings of fact were included specifying statutory reasons for making the variation, and furthermore, that no proof was submitted by petitioners of practical difficulties or hardship to warrant the granting of a variation. It is stated that the parking lots outside the proposed industrial district extend the use and size of the proposed industrial tract and that the parking lots were not necessary and created a hardship only in that it was convenient and desirable for Travenol to develop the entire tract. Driveways and parking areas are permitted in land classified “Office and Research” which is the zoning of the 15 acres upon which a variation was granted. As these uses are permitted in areas zoned “Office and Research,” defendant Travenol contends there is no necessity for a variation even though one was granted. However, we believe the trial judge correctly held that a variation was required in his oral opinion. He stated that he did not believe a variation was necessary so far as driveways were concerned, but that obviously Travenol was looking for more extensive parking than ordinarily would be required in “Office and Research” zoning.

Having read the record, we are satisfied that sufficient proof was submitted by defendant Travenol to allow the trial court to properly conclude that they had satisfied the statutory requirement of proving practical difficulties and particular hardship.

The contention that the variation granted is invalid because the resolution of the Board of Supervisors did not state the reason for granting a variation is without merit. We conclude that the necessity for the variation is substantiated by the record. Furthermore, the Board sufficiently stated its reason for granting the variation, and also in its resolution referred to the recommendation of the Zoning and Planning Committee of the Board of Supervisors and the recommendation of the Zoning Board of Appeals.

In Downey v. Grimshaw, 410 Ill 21, 101 NE2d 275, the court said at page 25:

“. . . The reference in the ordinance to the recommendation, of which the findings of fact were a part, was a substantial and sufficient compliance with the statute.”

In Kaczorowski v. Elmhurst Chicago Stone Co., 10 Ill2d 582, 141 NE2d 14, the court stated at pages 584 and 585:

. . The board of supervisors concurred in the findings and recommendation of the board of zoning appeals, and adopted a resolution granting ‘a variation’ in accordance therewith.”

and at pages 585 and 586:

“In our opinion the findings in this case complied with the statute. There was here no generalized repetition of the statute as was the case in Lindburg v. Zoning Board of Appeals, 8 Ill2d 254. Here the practical difficulties are the added amount of heavy truck traffic to which the board expressly referred and the added transportation costs that must obviously accompany it. That this hardship is unnecessary appears from the finding that the proposed change in operations would make no appreciable difference to the plaintiffs.”

Here the necessity of a variation to provide for driveways and parking and for ingress and egress seem apparent and the trial judge was correct in his specific finding that the resolution of the County Board contained the findings of fact required by section 3154 as to the reason for granting the variation. The judgment of the circuit court of Lake County is affirmed.

Judgment affirmed.

DAVIS, P. J. and MORAN, J., concur.