text:
    (No. 33855-6 Cons.
    The People ex rel. Herbert C. Paschen, County Collector, Appellant, vs. Morrison Hotel Corporation, Appellee.

      Opinion filed September 25, 1956.

    John GutknECht, State’s Attorney, of Chicago, (Gordon B. Nash, Charles D. Snewind, Edward E. Plusdrák, William S. White, and Francis X. Riley, of counsel,) for appellant.

      Johnston, Thompson, Raymond, Mayer & Jenner, of Chicago, (Henry J. Brandt, Albert E. Jenner, Jr., and Howard E. Kane, of counsel,) for appellee.
   Mr. Justice Hershey

delivered the opinion of the court:

This is an appeal from two judgments of the county court of Cook County, which ordered refunds to- the Morrison Hotel Corporation of a part of its real estate taxes for the years 1951 and 1952, based on a finding that its assessments for those years were “excessive, discriminatory, amounting to fraud.” Identical questions being presented, the causes were consolidated. Since revenue is involved, the appeal comes directly to this court.

The hotel corporation, owner of the Morrison Hotel located in the Chicago loop area, paid its 1951 and 1952 real estate taxes in full under protest, and after unsuccessfully pursuing its statutory remedy with the Cook County board of tax appeals, filed extensive objections to' the collector’s applications for judgment. However, the only objection pressed and at issue on this appeal is a so-called “specific valuation objection” which charges that the county assessor valued and assessed the property contrary to his own established rule, resulting in an over-valuation and a fraudulent assessment.

To support its position, the objector relies upon the testimony of the chief deputy assessor in Cook County, who appeared as a representative of the assessor in response to an order of the court.

The deputy assessor first described the general procedures which malee up what he called the “assessor’s formula.” Briefly stated, the following four steps are involved : First, the assessor inspects and measures the premises for the purpose of “cubing” the building. Second, a unit price is applied, said unit price multipled by the cube producing what is referred to as the “new cost of the structure.” Third, the age of the building is ascertained and a proper depreciation allowed. Finally, this value so arrived at may be “tempered” with an “economic analysis” which considers the net income derived from the property. In elaborating upon the last point, the witness said: “In assessing hotel buildings, an independent survey of net income is made by my office when the question is brought to our attention; we then request the owner to submit that information. Our office then makes its own independent survey.” These procedures are embodied in the assessor’s own rules and regulations.

The objector’s sole challenge relates to the fourth step, no contention being made that the others were not correctly done. Its argument centers on the matter of room occupancy, a factor sometimes used in determining net income. It appears that in making the 1951 and 1952 assessments, the assessor assumed that occupancy in loop hotels averaged between 90 and 100 per cent. But he learned later, after these assessments were completed, that this assumption was erroneous. Information supplied by the Chicago Hotel Association showed a 74.84 per cent general occupancy figure in 1951 and 72.64 per cent in 1952; and an audit of the Morrison Hotel Corporation for the fiscal year ending August 31, 1953, disclosed a 60.19 Per cent occupancy for its hotel. Thereafter, the assessor made an “adjusted occupancy” of 73 per cent for use in arriving at the objector’s 1953 assessment, the deputy assessor saying “it is a uniform method of always stabilizing occupancy at an average condition within a certain group of buildings.”

There is nothing in the record to show that the objector ever requested the assessor to consider its net income in arriving at the 1951 and 1952 assessments, and there is no showing that the method used in making these assessments differed from that employed in assessing other loop hotel properties. And even at the trial below, the objector’s room occupancy during 1951 and 1952 was not disclosed, nor was its net income for those years brought out.

On this record, we do not believe the objector is entitled to prevail.

No actual fraud was alleged, nor was it charged that the assessments were so excessive as to be constructively fraudulent. Indeed, no attempt was made to prove the actual market value of the property (or of any similar properties), nor were the 1951 and 1952 net income figures disclosed so as to permit of a capitalization process. Rather, the objector is content to rest its case on the assessor’s allegedly deliberate violation of his rules, coupled with a charge of discrimination. (Cf. Calumet and Chicago Canal and Dock Co. v. O’Connell, 265 Ill. 106, 110.) In short, it charges discriminatory treatment by reason of an arbitrary refusal to “temper” each assessment by an “economic analysis” which considers a room occupancy figure of less than 90 to 100 per cent.

It is fundamental that the objector has the burden of establishing a right to judicial relief by clear and convincing evidence, the tax being presumed valid. (People ex rel. Johnson v. Robison, 406 Ill. 280; People ex rel. Schlaeger v. Allyn, 393 Ill. 154; Jeffrey Apartment Building Corp. v. Harding, 347 Ill. 336.) Here, there is no proof that the assessor knowingly departed from any of the rules of his office governing assessment procedure. The objector at no time asked that its net income be taken into account in placing a valuation on the property, nor did it tender to the assessor any information bearing on its income for the years in question. It did not come to the latter’s attention that the occupancy rate which had been used for years in valuing loop hotels might be erroneous until after the instant assessments were completed. What effect room occupancy would have in an “economic analysis” would depend, of course, upon the method used in ascertaining net income. But so far as this record discloses, the identical figure was used for all loop hotels, the burden of any error fell equally upon all in the same class, and there was no discrimination. There is no hint of fraud or lack of good faith in any of the assessor’s actions or any evidence of arbitrary conduct on his part. The worst that can be said is that he made an honest mistake or error of judgment. “If property has been assessed higher than it should have been through a mere error of judgment on the part of the officers making the valuation, the courts are powerless to rectify the error * * (People ex rel. Schmulbach v. City of St. Louis, 408 Ill. 491, 500.) Our constitution provides that the assessment function is to be exercised “by some person or persons, to be elected or appointed in such manner as the general assembly shall direct, and not otherwise.” (Ill. Const., art. IX, sec. 1.) By implication, courts may not intervene to nullify or modify an assessment where the duly authorized officials have exercised honest judgment and there is nothing to establish fraud (either actual or constructive) or illegal conduct on their part. See, generally, Cushman, “The Judicial Review of Valuation in Illinois Property Tax Cases,” 35 Ill. L. Rev. 689.

The objectors having failed to establish the invalidity of the assessments, refunds should not have been ordered. Accordingly, the judgments of the county court of Cook County are reversed, and the cause is remanded with directions to proceed in due course.

Reversed and remanded, with directions.


source: Caselaw Access Project

author: Mr. Chief Justice KlingbiEl

license: Public Domain

text:
    (No. 33872.
    National Brick Company, Appellee, vs. The County of Lake et al., Appellants.

      Opinion filed September 25, 1956.

      Robert C. Nelson, State’s Attorney, of Waukegan, and Thomas A. Matthews, of Chicago, Counsel for the Village of Deerfield, for appellants.
    Dady and Dady, of Waukegan, (Ralph J. Dady, Jr., of counsel,) for appellee.
   Mr. Chief Justice KlingbiEl

delivered the opinion of the court:

National Brick Company brought suit in the circuit court of Lake County to declare void a county zoning ordinance and to enjoin its enforcement as applied to plaintiff’s property. The village of Deerfield and the town of West Deerfield were made defendants, as well as the county and its enforcement officials. After hearing evidence the court granted the relief prayed for. The village of Deerfield appeals.

Appellee is the owner of a 128-acre tract of land adjacent, on its east, north and south sides, to the village of Deerfield. The property was within the village limits until 1949, when it was disconnected therefrom on petition of appellee. It had been acquired for the purpose of manufacturing brick from the clay soil on the premises; and a brick-making factory has been operating there continuously since 1924. The tract is bounded on the east by railroad tracks and on the south by a highway, the center line of which is the dividing line between Lake and Cook counties. The adjoining areas are predominantly industrial and commercial, containing a number of manufacturing plants, lumber yard, woodworking shops, and nurseries, as well as the Deerfield sewage treatment plant and the village garage. Some residences are also located in the neighborhood, principally to the west and north of appellee’s property, although few are within % mile therefrom.

The Lake County zoning ordinance in force in 1949, when the property was disconnected from the village, contained a map showing the use districts into which all unincorporated areas of the county were placed. Section 2C of the ordinance provided that “Any addition made to the area regulated by this Ordinance as shown on the zoning maps * * * shall be temporarily classified as in the R-i district” until changed by amendment. The R-i district is the highest classification in the ordinance, restricting use of the property to five-acre residential estates. No change in the classification of the area has been made, and no new map has been adopted to show the zoning of the present tract, although in 1952 the ordinance was amended in certain respects not material here.

To reverse the decree appellants contend first that since the land was voluntarily disconnected from the village at a time when the present provisions were in effect, it was the appellee rather than the county board which imposed the restriction on the property, and the former therefore cannot be heard to complain that the classification is arbitrary and invalid. No authority is cited for the position, nor are any reasons advanced to sustain it. There is no merit to the appellants’ contention.

It is next urged that the ordinance was not shown to be unreasonable or confiscatory as applied to appellee’s land. Three expert witnesses on behalf of plaintiff testified to the extent whereby the land would be diminished in value by the ordinance. Their opinions placed its value as high as $4000 per acre for industrial purposes, and as low as $100 to $500 per acre if restricted to a minimum five-acre site residential use. A valuation engineer for the railroad testified that the brick-making plant and equipment could not be economically converted to other uses; that its present value is $791,000; and that its salvage value would be little or nothing, in view of the cost of removal. Three owners of property in the vicinity, as well as two members of the county board, testified that in their opinions the use of the tract for industrial purposes would not have a detrimental effect on neighboring properties. Extensive evidence was introduced showing that the north branch of the Chicago River, which forms part of the boundary of the present property and flows from north to south, is contaminated by sewage from the Deerfield treatment plant, the capacity of which is exceeded at times by the inflow from the combination sanitary waste and storm water pipe; and that at such times raw sewage is discharged into the ditch or stream, resulting in serious pollution and possible detriment to health if the area were developed for residential uses. It is pointed out that such overflows of raw sewage are not conducive to residential development.

On behalf of defendants, four expert witnesses testified that the property was adaptable to residential use, although in their opinion the strip within 300 feet of the railroad would be more valuable for industrial purposes. Of the defendants’ expert witnesses only one testified that the best use was for the R-i classification, with the five-acre limitation. The others could not recommend the five-acre restriction, although they testified that except for portions along the railroad tracks and the present sites of the clay hole and brick-making building, the property was suitable for residential use. In addition to the expert witnesses, nine residents of the general neighborhood testified that continued operation of the brick-making plant would be detrimental to the use and enjoyment of their homes.

While counties have statutory authority for the enactment of zoning ordinances, the power is not unlimited. The ordinance, to be valid, must have a substantial relation to public health, safety, morals, or general welfare. Where there is no material relation to the public good the county cannot, under the guise of a zoning regulation, either confiscate the property or inflict a substantial financial injury upon the owner. (Midland Coal Corp v. County of Knox, 1 Ill.2d 200.) Whether the necessary relationship exists depends in each case upon the particular facts and circumstances. Among the factors to be considered are the character of the neighborhood, the use of nearby property, the extent to which property values are diminished by the restrictions, and the gain to the public compared with the hardship imposed upon the individual property owner. (Hannifin Corp. v. City of Berwyn, 1 Ill.2d 28; Trust Co. of Chicago v. City of Chicago, 408 Ill. 91.) Zoning laws that result in relatively little gain or benefit to the public while inflicting serious injury or loss on the property owner cannot be sustained. Midland Electric Coal Corp. v. County of Knox, 1 Ill.2d 200.

In this case the location of the tract in close proximity to the railroad and other industrial and commercial enterprises is not disputed. According to the great weight of the evidence its value for residential purposes would be only a small fraction of its value for industrial use. In addition, the plaintiff’s large investment in buildings and improvements, used for many years in its brick-making operations, would be wiped out. As against this extreme hardship defendants’ evidence shows some expert opinion that if not restricted to five-acre minimum sites the highest and best use would be for residential purposes, and some conclusions of persons residing in the general area that the plant impairs the enjoyment of their homes. Regardless of the credibility of the witnesses — a matter primarily within the province of the chancellor (See Pioneer Trust & Sav ings Bank v. Village of Oak Park, 408 Ill. 458, 467) — we think this evidence clearly fails to show a benefit to the public sufficient to justify the serious loss inflicted upon the plaintiff. Even the defendants’ witnesses, with one exception, admitted there would not be a ready market for home sites having the present minimum of five acres.

Appellants urge that even if the present classification is unreasonable or confiscatory as applied to the property, the five-acre requirement is separable and may be stricken without affecting the balance of the requirement. Invoking the rule that an invalid portion of a statute may be declared void without affecting remaining provisions complete in themselves, appellants insist that the classification be sustained as a residential one without the area requirement. The contention is without merit. A court cannot substitute its judgment for that of the county board and, in effect, make a zoning classification of its own. The factors or reasons which make appropriate a particular zoning restriction are matters for legislative policy. Courts can determine only whether the municipal body had authority to pass the ordinance and whether the ordinance as written bears a reasonable relation to the public health, safety, morals, or welfare. (See 2700 Irving Park Bldg. Corp. v. City of Chicago, 395 Ill. 138, 147.) Where a zoning ordinance is improper, a court cannot change or modify the restrictions so as to uphold only a portion thereof. Its function is limited to declaring the ordinance void, the effect of which in this case is to leave the property unzoned. See LaSalle National Bank v. City of Chicago, 4 Ill.2d 253.

The zoning ordinance of Lake County, insofar as it applies to plaintiff’s property, is arbitrary and unreasonable, and cannot be sustained. The decree of the circuit court is correct, and is accordingly affirmed.

Decree affirmed.


author: Mr. Justice Hershey

text:
    (No. 33891
    The People of the State of Illinois, Defendant in Error, vs. Leonard Dogoda, Plaintiff in Error.

      Opinion filed September 25, 1956.

      T. Renfroe Eaton, of Chicago, for plaintiff in error.
    Latham Castre, Attorney General, of Springfield, and John Guticnecht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugara, Irwin D. Broch, John T. GarraghER, Rudorph L. Janega, Wirriam L. Carrin, and John J. Stamos, of counsel,) for the People.
   Mr. Justice Hershey

delivered the opinion of the court:

After a nonjury trial in the criminal court of Cook County, the defendant, Leonard Dogoda, was found guilty of attempted burglary and sentenced to a term of one to three years in the penitentiary.

The indictment charges that the defendant attempted to break and enter a certain store building in Chicago belonging to the National Tea Company, with intent to steal, take and carry away personal property of the company; that he did certain overt acts toward the commission of that offense; and that he was intercepted and failed.

The record for the prosecution contains the evidence of the dawyer who incorporated the company, the store manager, three police officers, an unsigned statement allegedly made by the defendant, and stipulations as to his age and a prior conviction. For the defense, the defendant and his employer testified.

At 6:00 P.M. on November 2, 1954, all of the doors and windows of the store were locked and intact. However, on the following morning the rear doors were found to have been “chewed” as if something had gnawed on the wood, wood splinters were scattered around, one step-down bolt was torn out, and a brace was bent out straight.

Three police officers, in a squad car dispatched to the scene at 2:3o A.M. on November 3, 1954, saw two men walking out of an alley behind the store and cutting through a station lot and driveway in a direction toward the officers. The officers stopped the car, jumped out, yelled “stop, police officers,” and, as the men started running, fired three shots in the air. One of them, the defendant, was apprehended some distance away and taken to the police station. Upon returning, the officers found the tampered rear doors. One of them said he saw marks on the doors “as would be made by a crowbar.”

Another police officer who investigated (in a different car) told of finding a “2x4” wedged in the center crack between the two rear doors of the store. At dawn he went back to the scene and found two crowbars hanging on a fence about 50 feet away.

A statement of the questions asked the defendant and his answers disclose that he and a person he knew as Andy were at a tavern from 9:30 to 11:00 P.M. on the night in question, then went to another tavern, and finally to a third. Afterward, they walked east on Sixty-third Street “where the store was located which we made an attempt to break into.” They found two “2 x4s” in an open lot nearby and used these in an unsuccessful effort to pry open the doors. As they were leaving, the police arrived. They started running, heard shots fired, and shortly thereafter the defendant was caught.

The statement negates any coercion or inducement and shows voluntary character, and, in answer to the final question whether he would sign, gives the defendant’s answer as “I’m not saying until I consult my attorney.”

The defendant, on the stand, said he played cards at home until 7:30 or 8:00 P.M. and then left for a tavern. He left there about 10:30 P.M. for another tavern, and then to another. By this time he had “had plenty.” He said that when he and Andy were on Sixty-third Street near the corner, they saw two squad cars, heard somebody shout “halt” and also heard shots fired. They got panicky and started to run. Since he had been picked up before, he said he wanted to avoid any time in jail and save the money involved in an arrest. He denied being behind the store or in the alley, attempting to pry open the doors and possessing the crowbars or “2 x 4s.” Finally, he refuted the statement, saying it wasn’t true beyond the point where he made a correction on his brother’s name.

The defendant contends as follows: (1) The evidence is so unsatisfactory as to require a reversal. (2) The statement, containing matters contrary to known facts, unsigned, unsworn, denied and taken while he was under alcoholic influence, is insufficient to support the conviction. (3) It was error to admit the tools not shown to have been in the defendant’s possession. (4) There was no proof of any personal property in the store, much less any proof of ownership. (5) The indictment and evidence did not establish the value of the property as being more than $50.

The first two contentions may be considered together. For without the statement there is nothing to connect the defendant with the physical evidence found at the scene and implicate him in the crime; but the statement, if taken as admitted and believed, eliminates any reasonable doubt of guilt when considered with other facts of record.

The statement need not have been sworn to be admissible; and since the police officer who took it testified that it was a true and correct transcript of the questions and answers, it was not necessary that it be signed. (People v. Gukouski, 250 Ill. 231.) The defendant does not deny having made a statement before an officer who typed it, nor does he deny that the statement submitted was taken by that officer. He does refute part of it, for on his direct examination in answer to a question put by his own counsel, he said “that statement wasn’t true beyond the point where I have made a correction on my brother’s name.” But it is significant that this point in the statement follows these incriminating answers: that while his alleged accomplice was prying on the door with a “2 x 4” the defendant was pushing on the door so he could get his “2 x 4” in better; that his intentions after gaining entry were probably to' take something; and that his intentions were, regarding the merchandise he would have taken, to “sell it I suppose.”

While the defendant does not assert that the statement was coerced, he does claim that it was vitiated by drunkenness on his part. This poses a fact question, opposing the defendant’s word to that of the arresting officer regarding his sobriety or degree of intoxication and necessitating a consideration of other relevant matters. It was for the trial court sitting without a jury to resolve this issue, and there is ample support in the record for its determination.

The defendant next objects to the admission in evidence of the crowbars and the “2 x 4s.” However, they were found in close proximity to the scene of the crime, and in his statement the defendant acknowledged that he and his accomplice used tools of this nature in their attempt to enter the building. Under these circumstances, the evidence was properly admitted.

The defendant’s next contention is that there was no proof of any personal property in the store, much less any proof as to' the ownership of such possible property. Actually, it is true that there was no' direct proof of such, although it might well be inferred from the mere proof concerning the grocery store building that there were groceries inside. However, it is unnecessary to indulge this inference. An attempt is a crime that falls short of completion through means other than the defendant’s voluntary relenting, (People v. Lardner, 300 Ill. 264,) and where the attempt is to burglarize a building, with intent to commit larceny, one form of frustration would be the absence of property in the building. The larceny attempt cases are analogous. See People v. Moran, 123 N.Y. 254, Com. v. McDonald, 5 Cush. (59 Mass.) 365, People v. Jones, 46 Mich. 441, and State v. Wilson, 30 Conn. 500, all sustaining convictions on fruitless dips into empty pockets.

Finally, the defendant argues that an attempted burglary cannot be based on an intent to commit petty larceny (i.e., property valued at less than $50.) He points to the attempt statute which reads "with intent to commit the crime of murder, rape, robbery, larceny or other felony.”' (Ill. Rev. Stat. 1953, chap. 38, par. 85,) and insists that the word “larceny” used therein refers to that larceny which is a felony, but excludes that which is only a misdemeanor.

This argument, basically ejusdem generis, is not persuasive. To determine whether the larceny in the foregoing statute includes petty larceny (a misdemeanor), as well as grand larceny (a felony), we look to the larceny statute. There larceny is defined as including both. The “other felony” mentioned in the attempt statute refers to other crimes of that degree; but the mere position of the word “larceny” in the series of words does not require us to rule out misdemeanor larceny as a crime, the intent to commit which may be the subject of an attempt. This was the holding in Kelly v. People, 132 Ill. 363, 367-8, as regards assault with intent to commit “murder, rape * * * larceny or other felony,” an assault to commit such crime being made out on proof of assault to commit petty larceny. The language of that case applies here: “Whether the value of the goods stolen is more than $15.00, or just $15.00, or less, in either case the crime is larceny.”

For the reasons stated, the judgment below is affirmed.

Judgment affirmed.


author: Mr. Justice Maxwell

text:
    (No. 33901.
    The People of the Statep of Illinois, Defendant in Error, vs. Peter Edward Kenzik, Plaintiff in Error.

      Opinion filed September 25, 1956.

      Warren J. Carey, of Chicago, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and John GuTknEcht, State’s Attorney, of Chicago, (Fred G. Leach, Edwin A. Strugala, Irwin D. Bloch, John T. Gallagher, Rudolph L. Janega, and William L. Carlin, of counsel,) for the People.
   Mr. Justice Maxwell

delivered the opinion of the court:

Peter Edward Kenzik has filed his writ of error to review a verdict and judgment finding him guilty of the crime of murder and fixing his punishment at death. Kenzik, hereinafter called defendant, at the time of trial was a person 48 years of age and was arraigned as an indigent person with court-appointed counsel March 4, 1955. On March 14, 1955, counsel withdrew their appearance and the Public Defender of Cook County was appointed to represent the defendant. On April 4, 1955, the Public Defender was given leave to withdraw and another attorney was appointed by the court to represent the defendant. The case was set for trial on May 2, 1955, at which time the defendant moved for a change of venue. The change of venue was granted and the case then transferred for trial before another judge. Defendant’s counsel then filed a motion for continuance supported by affidavit, setting forth that since the day of appointment as counsel for defendant, his attorney had been actively engaged in the trial of many cases which consumed more than 19 days of actual trial, not taking into account preparation time. This attorney informed the court that he had conversed with the defendant only three times since his appointment and then for only 15 to 20 minutes on each occasion, that he had not yet been able to properly investigate the facts, consult with witnesses, adequately consult with defendant or make necessary office and library preparations. The attorney further informed the court that it was necessary to have a short continuance in order to have the required time to personally find witnesses. If not granted this continuance defendant’s attorney informed the court that he was wholly unprepared for trial. The court then turned to the State’s Attorney for further advice in the matter and was informed by the State’s Attorney’s assistant in charge of the trial that the defendant had been arraigned February 28, 1955, (at which time defendant had no attorney,) that two months had passed, that an elderly witness had been brought to Chicago for the second time from the State of Mississippi with the understanding that the case would proceed to trial on that date. It was the prosecuting attorney’s opinion that the State would be prejudiced by a continuance in view of the fact that they could not guarantee production of the witness at a later time. The court interrogated the prosecution witness, who stated she was 77 years of age, that she was under a doctor’s care, that she was getting sick and could not stand it much longer.

The court then discussed the matter with defendant’s attorney and learned from him that he had been in the case for less than 30 days, that he had spoken to the defendant briefly on but a few occasions, that defendant had given him some written material consisting of nearly 200 pages which he had just finished reading over the week-end prior to the trial date. The court then indicated that the case should be called for trial and defendant’s motion for continuance be denied. It was then during the noon hour and the court recessed until 2 :oo o’clock, meanwhile advising defendant’s attorney that if he had any trouble securing witnesses he should prepare subpoenas and the court would direct the sheriff to serve them as rapidly as possible and that if, during the course of the trial, any of the witnesses subpoenaed by the defendant did not appear the court would issue a capias for their production. It was then that defendant’s attorney interrogated the defendant for the record disclosing thereby that said witnesses, whose attendance defendant desired, were employed in the city of Chicago, that defendant knew where they were employed but did not know their home addresses and further that other witnesses resided outside the State of Illinois. The court then stated that permission would be granted defendant’s attorney to sit down with defendant in the bailiff’s room in order that he might “get these witnesses straightened” before picking a jury. The court announced the trial would resume at 2:00 o’clock in the afternoon. At this time the defendant then informed the court that he felt that he was not guilty of the crime charged, that he had proof another man was involved in the case and was not prepared to go to trial that day and because of the circumstances felt that his attorney could not be of help to him and so preferred to be without counsel. The defendant stated that the State could have their own way in prosecuting him and that he would have nothing to say to the jury or to the court. After making it clear to the court that he did not desire the assistance of counsel the trial was ordered to proceed. The indictment was read to the defendant and he persisted in his plea of not guilty. The court then granted defendant’s counsel permission to withdraw from the case.

The jury was then impaneled and sworn for selection. During selection of the jury it appears that defendant did not interrogate any of the jurors and when informed by the court as to his rights concerning their selection stated that since he was without counsel he felt that he was “given a grave injustice” and would have nothing to say to the jurors. The court again asked defendant if he desired the court to appoint counsel and his reply was that if given sufficient time to prepare his case he would like to have an attorney appointed.

At the end of the day, when the State had selected and tendered two panels and had called the last panel of four jurors the court brought in the defendant out of the presence of the jury and informed him that he had a right to keep the jurors together during the entire trial. The court stated, “This means that the defendant has a right to keep them from going home each night. On the other hand, the defendant in person can waive that right. That means the jury can separate to go home each night. What do you wish done?” The defendant replied, “I wish that they would have the proper rest and go home each night.” The court then informed defendant that he had waived his right to have the jury kept together during the trial and that they could separate and go home each night. Defendant was also informed by the court that his right to have the jury kept together was a right which he could waive.

On the following day the balance of the jurors were selected. When the defendant again asked for a continuance and assistance of counsel, the court, after inquiring from the assistant State’s Attorney as to his sentiments concerning a continuance, ordered the case to proceed. Thereupon a procession of prosecuting witnesses appeared and testified without any objections or cross-examination on the part of the defendant or the court.

It appears from th'e record that on March 13, 1953, Clara Erickson Miller died from wounds received on the same day. The defendant, under the name of Peter Miller, was married to deceased since 1949. Their home was in Chicago and the mother of the deceased, Katie Erickson, lived with them. The married couple separated in February, 1953. Defendant on several occasions had returned to the apartment and on one of said occasions pointed a gun at his wife and threatened to shoot her. The evening of decedent’s death, at approximately 6 :oo o’clock, defendant visited the apartment and talked to Mrs. Erickson while waiting for his wife to return from work. After 15 or 20 minutes his wife returned and sat on the couch next to him. Her mother went to the kitchen for coffee and while there heard her daughter scream “Mama, come quick, Pete is killing me.” The mother rushed into the room and saw defendant jabbing a butcher knife into his wife’s breast and while the witness struggled with him she in turn received stab wounds. Defendant left without a word, the authorities were called, and mother and daughter were taken to the hospital where the daughter died.

Defendant could not be located until February 10, 1955, when the Chicago authorities took him into custody in San Diego, California. Defendant told a police lieutenant of Chicago that he had been in the apartment of his wife on the date of her death but remembered nothing that happened while there, as everything was a blank.

At the close of the State’s case, the court again offered to appoint counsel for the defendant. Defendant’s reply was that he would desire counsel, providing counsel had sufficient time to prepare. He indicated that 30 days was sufficient time for preparation of his defense and his request was denied. On the following day after court was convened and in the presence of the jury the court informed defendant that it was his right to present evidence in his defense. Defendant replied that he had already made it clear to the court that he was not prepared to defend himself, that he had no attorney and felt that he would only be incriminating himself if he said anything. When asked by the court if he cared to take the stand at that time or not and that he had the right so to do, defendant stated he was not prepared and would not take the stand. In reply to the court’s question as to whether he had other evidence to present in his behalf defendant informed that he hadn’t had sufficient time for that. The court then inquired, “So that you are not now presenting any evidence on behalf of yourself as a defendant in this case, is that correct?” The defendant then replied, “That is correct.” Thereafter the court announced, “Let the record show that the defendant not having presented any evidence on behalf of the defendant and having so informd the court, the court will consider the defendant has rested.”

After argument by the prosecution the court informed the defendant that he had a right to address the jury in final argument and defendant again stated he had nothing to say, that he was not guilty of the crime, that if the jury found him guilty without counsel, he had nothing further to say. When asked for instructions to be tendered the jury, defendant informed the court that he was not familiar with court procedure and would not know what to say. The court then replied: “Then the Court takes it that you have no instructions to offer to the jury on your behalf at this time.” The defendant replied he had nothing to say. Neither the State’s Attorney nor the court gave any of the instructions which are usually given in felony cases on behalf of defendants.

The verdict rendered by the jury found the defendant guilty and fixed his punishment at death. Upon its own motion, the court ordered that a motion for a new trial be entered and later appointed the same attorney who appeared with defendant at the opening of the trial, for the purpose of preparing a motion for a new trial or for any other proceedings. Upon a hearing of the motion for new trial witnesses were called and evidence was presented in support thereof. Testimony of three of the jurors was heard. The foreman testified that during the course of the trial and before the jury verdict he had read a newspaper article concerning the defendant, that other jurors had called the article to his attention. He stated that he informed them of the fact that unless presented in court nothing was to be considered as relevant. Although stating that his verdict was not influenced by the newspaper article, he did state that he and other jurors could not help having the newspaper article in mind at the time they deliberated. Another juror stated he read the article but was not influenced by it. A lady juror testified that she heard one of the other women say she had heard a news broadcast the evening prior to retirement of the jury for deliberation on its verdict. She also stated that another lady juror stated that someone had read the newspaper article in the morning paper.

The article in question related that a jury of seven women and five men was completed to try defendant accused of murdering his wife in a named judge’s court. It further informed that the jury was qualified to impose the death penalty. The second paragraph stated that the defendant had a long criminal record and had fled after the slaying. It also stated that the Federal Bureau of Investigation had named defendant as one of its ten most wanted men and that defendant had been captured in California the past February.

Defendant assigns as error the trial court’s refusal to grant him a continuance to make adequate preparation for his defense; denial of the assistance of competent counsel; the trial court’s reference to defendant’s refusal to testify in his own behalf in the jury’s presence; allowing the jury to separate during the trial, during which time they were influenced by prejudicial matters published by newspapers and radio and prejudicial argument of the assistant State’s Attorney. The State denies each of these assignments.

None of the cases cited by both defendant and the State are directly in point with the case at bar in respect to the question of a defendant’s right to a continuance in a criminal case on the ground of inadequate time for necessary preparation. As a general rule this is understandably within the province of the trial court’s discretion. However, the cases uniformly hold that a defendant is entitled to a continuance for adequate preparation for his defense. People v. Trimble, 345 Ill. 82; People v. Dunham, 334 Ill. 516; Sutton v. People, 119 Ill. 250.

It is true that in the present case several elements are lacking in defendant’s motion for continuance. It does not assert that defendant has a meritorious defense nor does it assert the facts expected to be proved by missing witnesses. However, in the particular case it is understandable that the appointed counsel was evidently actively engaged in other cases with prior commitments. There is a general tendency by the courts to exercise a greater leniency and wider discretion where it is necessary to protect the rights of indigent persons accused of crime through appointment of counsel not of their own choosing. This court has on other occasions indicated that whereas the incompetency of counsel appointed by a trial court could be availed of as error on review yet the same incompetence in another attorney of a defendant’s own choosing under a retainer could not be availed of. (People v. Pierce, 387 Ill. 608.) The charge here being homicide a jury finding the defendant guilty has a wide latitude in fixing the defendant’s penalty — from a minimum of 14 years imprisonment to death. This court must recognize the right of a guilty person in homicide cases to present to a jury or a court (if heard without a jury) the full facts and background surrounding the charge with reasonable opportunity to obtain such facts. It cannot be denied that appointed counsel, busy with prior commitments, must be afforded reasonable time to obtain all the facts from the defendant and other witnesses not only for the necessary preparation of a defense on the merits but also for a hearing of matters in mitigation of his sentence. It also follows he must be given reasonable time to assemble facts to properly prepare and present a motion for continuance where necessary. Although the prosecution has pointed out that, in the discourse before the trial court, it appeared that the alleged witnesses of the defendant would testify only as to his character, it does appear that defendant informed the court that a nonresident witness would testify as to conversations between the defendant and his wife one week prior to the occurrence. Defendant also told the court that he had proof that another man was involved in the case.

In view of our belief that there should be another trial so that the rights of all parties concerned can be vigilantly guarded we shall refer to only one other assignment. It is true that the trial court explained to the defendant his right concerning the separation of the jury during the trial of the cause and that defendant assented to their separation. However, under the circumstances in the particular case, we do not feel that the defendant knowingly and understanding^ waived his right concerning the separation of the jury. These elements must be present to constitute an effective waiver. (People v. Williams, 399 Ill. 452; People ex rel. Swanson v. Fisher, 340 Ill. 250.) There are many trial courts which do not permit the separation of a jury in any felony case. The reason for this needs no explanation. (See People v. Strause, 290 Ill. 259.) It would be difficult to find competent counsel learned in the trial of criminal causes who would advise a defendant, charged with homicide such as the present defendant with the same attending circumstances, to agree to the separation of a jury. The opportunity for interference by outside prejudicial matters is quite evident. It is most difficult for men trained in the law to exclude these prejudices — let alone a jury of laymen. That the same verdict might have followed had there been no prejudicial matters brought to the jury is of no consequence — such a conclusion is one only of conjecture at best.

The declarations of this court concerning this issue, as pronounced in People v. Hryciuk, 5 Ill.2d 176, at 181-185, require no further elucidation and are reaffirmed. The fundamental issue concerning defendant’s receiving a fair trial must manifestly require our holding that the trial court’s denial of the motion for new trial was in error and that this cause should be reversed and remanded for a new trial.

The judgment will therefore be reversed and the cause remanded for a new trial.

Reversed and remanded.

      This opinion was prepared by the late Mr. Justice Maxwell and has been adopted and filed as the opinion of the court.


author: Mr. Justice Daily

text:
    (No. 33933.
    The People of the State of Illinois, Defendant in Error, vs. Samuel Bybee, Jr., Plaintiff in Error.

      Opinion filed September 25, 1956.

      Paul E. Thurlow, of Joliet, for plaintiff in error.
    Latham Castle, Attorney General, of Springfield, and William H. Small, State’s Attorney, of Galesburg, (Fred

      G. Leach, and Edwin A. Strugala, of counsel,) for the People.
   Mr. Justice Daily

delivered the opinion of the court:

Under an indictment returned to the circuit court of Knox County, Samuel Bybee, Jr., hereinafter referred to as the defendant, was charged, in counts I and IV thereof, with the crime of statutory rape, in count II with the crime of rape by force, and in count III with having taken indecent liberties with a minor. At the jury trial which followed on June 23, 1954, a verdict was rendered finding the defendant guilty of statutory rape under the first count of the indictment and fixing his punishment at 40 years in the penitentiary. After the defendant’s motions in arrest of judgment and for a new trial were overruled, judgment and sentence were entered in accordance with the jury’s determination. Writ of error has now been prosecuted to this court.

The People’s evidence indicates that on the morning of November 21, 1953, as the complaining witness was walking to her place of employment, she was approached by the 26-year-old, married defendant, who invited her to ride with him in his automobile to visit a mutual friend. The girl agreed, and, after receiving her employer’s permission, she entered the automobile for this purpose, but instead of driving to his promised destination, the defendant drove to a neighboring public park area, known as Lake Storey, where the criminal act was committed.

The fourteen-year-old complaining witness testified that she customarily worked each Saturday at the residence of Dr. Jackson Erffmeyer, in Galesburg, Illinois, and that on the morning in question she left for work at approximately 8:24 A.M., rode a bus to within a short distance of the Erffmeyer residence, and then started walking to her place of employment, when a light blue, four-door automobile honked and pulled to the curb. She stated that Bybee, whom she then knew as Bob Baker, was driving, and that after some conversation he suggested they ride to a nearby drive-in restaurant to see Felicia Hunt, a mutual friend. According to the witness, she looked at her watch and noticed the time was 8 ¡45 A.M., and since she was to be at work not later than 9 :oo A.M., she told Bybee she would have to get her employer’s permission and thereupon went to the door of the Erffmeyer home and asked Mrs. Erffmeyer if she could be a few minutes late. After receiving consent, she entered the automobile with the defendant and proceeded toward the restaurant, but instead of stopping, the defendant continued until he entered the Lake Storey area. The complaining witness then described how Bybee tried to remove her clothing, how she first resisted, but later submitted to his advances because of threats and exhaustion. Thereafter, she continued, the defendant drove her back to her place of employment where she told Mrs. Erffmeyer what had happened. She also stated that she was later taken by her mother to the office of Dr. Erffmeyer for an examination and to the State’s Attorney’s office; that she identified the defendant from a police photograph and later from a group of four individuals at police headquarters; and that on the date of the offense, Bybee was wearing levis, engineering boots, a green leather baseball cap, and a brown, fur-collared jacket.

This account was corroborated, at least in part, by the testimony of the employer, Elizabeth Erffmeyer. She stated that on the morning of the alleged attack, the prosecutrix knocked at her door at approximately 8:45 A.M. and received her permission to be late for work in order to meet Felicia, and that she then noticed a blue, four-door automobile, with a noisy muffler, pull away from the curb. According to the witness, prosecutrix returned to the house at approximately 9:25 A.M. and advised her of the preceding events.

Dr. Jackson Erffmeyer then testified that he saw the prosecutrix at his office at 10:45 A.M. on the morning in question and that an examination by him disclosed a vaginal tear, a small amount of bright red blood, and the presence of live spermatozoa. On cross-examination, however, he admitted that it would have been possible for the act of intercourse to have occurred some ten hours prior to the time of the examination.

William Allison, a Galesburg policeman, stated that he saw defendant on November 25, 1953, and that on this occasion, he was wearing heavy-type work shoes, a green leather billed cap, and a fur-collared jacket, and that he was driving a light blue, four-door, 1951 Dodge automobile.

Another police officer, A1 Rowe, testified that he had, without success, on prior occasions, shown certain photographs to the complaining witness in order to establish the true identity of the man she knew only as Bob Baker, and that on November 25, she identified Bybee’s photograph as that of her assailant. He also told how he and two deputy sheriffs apprehended the defendant on November 27, 1953, and stated that at the time of his arrest, Bybee was wearing levis and three-quarter length shoes, and was driving a blue 1950 or 1951 Dodge four-door sedan. Max Jones, one of the deputy sheriffs referred to by Rowe, recalled that Bybee was wearing a brown, fur-collared jacket and logger boots, and was driving a late model, blue Dodge which had a defective muffler. A similar description was given by Edwin Watkins, the other arresting deputy sheriff.

The last to testify for the People was the mother of the complaining witness. She stated that her daughter left home for work on the morning of November 21, but returned before 10 A.M. and told her of the rape. The mother also testified that on December 9, 1953, the defendant came to her place of business and admitted the rape, but threatened to smear the daughter’s name unless the prosecution was dropped, whereupon the mother called the police and had him evicted from the premises.

Bybee’s defense was an alibi, and in support thereof, he produced several witnesses who saw him at various times during the morning of November 21. Two witnesses testified that they saw the defendant at a restaurant around 8:15 A.M.; two others placed him at a service station in Knoxville, a neighboring town, at approximately 8:2o A.M., and a Galesburg storekeeper said he was in hi§ place of business between 8:2o A.M. and 8:4o A.M. on the morning in question. Daniel Parrish and his mother both testified that the defendant was at their home sometime between 9:00 A.M. and 9:30 A.M., but on cross-examination they both admitted that they were not sure of the time but were merely basing it on the. time of day that various things were customarily done around the household, such as the father leaving for work and the son’s eating breakfast.

Max Hillman, an ordained minister and tree surgeon, testified that his hired lady ordinarily came to work at 9 :oo A.M. and that soon after she arrived on the morning in question, Bybee telephoned and wanted to borrow some tools. Thereafter, according to Hillman, the defendant came to his home for the tools, arriving between 9:3o A.M. and 9:35 A.M. On cross-examination, the witness admitted that he had talked to a police officer soon after- Bybee’s arrest but could not remember whether he had then said that the defendant arrived at his home some thirty minutes later than his testimony indicated. Nevertheless, the People’s rebuttal witness, William Allison, testified that he talked with Hillman on December 2, 1953, and was told on that occasion that Bybee did not arrive at the Hillman residence until after 10:00 A.M.

Nellie James testified that she also received a telephone call from the defendant on the morning of the assault, in this case between 9 :oo A.M. and 9:3o A.M. However, on cross-examination she admitted that she did not remember the exact time but that the call could have been received as late as 10 o’clock. Her husband, Omer James, stated that he saw the defendant at approximately 10:30 A.M. on this particular forenoon.

Samuel Bybee, Jr., then testified in his own behalf that he had met the complaining witness on at least one occasion prior to November 21, 1953, but did not remember whether he then gave her his true name or whether he told her that his name was Bob Baker. Bybee admitted that he owned a blue four-door 1951 Dodge automobile and that on the day of the alleged crime, he wore blue jean overalls, high top boots, a green leather billed cap, and a fur-collared jacket, but emphatically denied that he had either seen the prosecutrix on the day in question, or that he had ever taken indecent liberties or had sexual intercourse with her. According to his testimony, the defendant arrived at the Hobby Grill restaurant about 8:15 A.M. on the morning of November 21, 1953, and then proceeded directly to the Knoxville service station where he stayed until between 8:30 and 8:35. Thereafter, he drove his automobile to' Galesburg and entered a leather shop about 8:50 A.M., leaving at approximately 9:00 o’clock. After exchanging a few remarks with an acquaintance at a nearby lunch counter, Bybee then drove to a Galesburg service station and telephoned both Max Hillman and Nellie James between 9:05 and 9:15 o’clock. Thereafter, continued the defendant, he motored to the Parrish residence for a ten minute visit commencing at approximately 9:2o A.M., after which he proceeded to the Hillman home, arriving at about 9:35. Finally, Bybee said that he was in the company of Max Hillman until after 10:00 A.M., at which time he drove to the Omer James residence where he was employed for the balance of the day. Although admitting that he visited the mother of the complaining witness on December 9, Bybee denied that he at any time confessed his guilt but said that his sole purpose in talking with her was to see why he had been “picked on.”

The defendant now contends (x) that the verdict of the jury was against the law and the evidence and that the lower court erred in overruling his motion for a directed verdict, (2) that there was no proof that the offense had been committeed in Knox County, (3) that a variance or inconsistency existed in the verdict itself, and (4) that the trial court erred in giving certain instructions for the State and in refusing others which were offered by the defense. However, contrary to Supreme Court Rule 38, (Ill. Rev. Stat. 1955, chap, 110, par. 101.38,) the defendant, in support of his fourth contention, has included in his abstract of record only those instructions of which he complained without regard to others which were both given and refused. Since the suitability of a particular instruction can best be judged by considering it in connection with all the other instructions which were given in the specific case, (People v. Wilson, 1 Ill.2d 178; People v. Shelton, 388 Ill. 56; People v. DeRosa, 378 Ill. 557; People v. Shader, 326 Ill. 145; City of Roodhouse v. Christian, 158 Ill. 137,) and since this court is not bound to- search the record itself to supply abstract deficiencies, (People v. Mattei, 381 Ill. 21; Clinton v. Drainage Commissioners, 341 Ill. 135,) we have repeatedly held that error cannot be predicated upon the giving, refusal, or modification of certain instructions unless all instructions which were given and tendered are completely set forth in the abstract. (People v. Husband, 4 Ill.2d 451; People v. Tabet, 402 Ill. 93; People v. Gawlick, 350 Ill. 359; People v. Weil, 243 Ill. 208.) In view of the fact the defendant has failed to satisfy this requirement, we will not now inquire whether the trial court erred in this respect but will limit our considerations to the other assignments of error.

The rule is that a verdict rendered in a criminal case will be disturbed only where it is so improbable as to raise a reasonable doubt of the defendant’s guilt. (People v. Quevreaux, 407 Ill. 176; People v. Fisher, 303 Ill. 594; People v. Allen, 413 Ill. 69.) Here, Bybee was positively identified by the complaining witness, his automobile matched the description given by both the victim and her employer, the clothing he admitted wearing on the date of the crime was identical to that worn by the attacker, he had previously known the victim but could not remember whether he used the name “Bob Baker,” and medical testimony showed the girl had in fact been sexually molested. On the other hand, the only contrary evidence was his own denial and the alibi testimony which covered the period from 8:45 A.M. to 9:25 o’clock, the time of the alleged crime. Daniel Parrish and his mother testified that they may have seen Bybee as late as 9:3o A.M. Max Hillman, another alibi witness, stated that he received a call from the defendant soon after his hired lady arrived for work, which was customarily about 9 :oo A.M. but did not actually see Bybee until at least 9:3o, and according to evidence of his previous inconsistent statement, perhaps as late as 10:00 A.M. The only other person to> testify concerning Bybee’s whereabouts during the period of the alleged assault was Nellie James, who first said she received a call from Bybee between 9 :oo and 9:3o A.M. and then later said it could have been about 10 o’clock. The evidence as to an alibi is somewhat conflicting, and it cannot be said to raise such a-reasonable doubt of guilt as to warrant the setting aside of the jury verdict. In so deciding, we are not unmindful of the argument made by counsel for the defense in his brief to this court that certain evidence for the prosecution was improperly admitted. However, these points were neither raised in his motion for a new trial nor in his assignment of errors to this court, and are therefore waived. (People v. Reck, 392 Ill. 311; People v. Mattei, 381 Ill. 21; People v. Dron, 360 Ill. 309; People v. Hotchkiss, 347 Ill. 217.) It is our opinion that the verdict of the jury was not against the law and the evidence and that the lower court did not err in overruling the defendant’s motion for a directed verdict.

Next, the defense contends that proper venue was not proved. The record indicates that the prosecutrix, after having testified the criminal act was committed in Knox County, was cross-examined upon the following particulars:

“Q. Do you know where the Warren County line is, * * *?
A. No.
Q. Are you able to tell whether or not the place where you stopped the second time is in Knox County or Warren County?
A. It’s in Knox.
Q. How do you know that, * * *?
A. Because the county line goes on quite a bit further than where we were.
Q. Didn’t you just testify that you didn’t know where the Warren County line was?
A. Yes.
Q. But you now know that the Warren County line goes much further than where you were?
A. Yes, but I don’t know where it’s at.”

The defendant argues that because this witness did not know where the county line was, and since no other evidence of venue was offered, the State failed to sustain this material allegation. With this we cannot agree. It is not at all contradictory for an individual to know that he is in a particular county, city, or State without being able to accurately define the geographical boundaries. Here, the complaining witness categorically testified that the crime was committed in Knox County, and although she was uncertain as to that county’s territorial limits, we believe that her testimony upon this point was sufficient to prove venue as alleged.

Finally, the defendant contends that since count I and count IV of the indictment were practically identical, a finding of guilt only as to the former implied an acquittal of the latter, and thus, a variance or inconsistency existed in the verdict itself. Although this argument is indeed novel, we find it to be without merit. It is true that where different counts charge separate and distinct crimes, a conviction upon only one count is equivalent to an acquittal of the others, (People v. Potts, 403 Ill. 398; People v. Weil, 243 Ill. 208,) but we know of no instance in which this court has extended the principle to counts charging the same crime. In fact, to do so would be an absurdity. We would in effect be saying that the inference of acquittal arising from the jury’s silence was strong enough tO' overcome its express contrary finding. Such, of course, does not meet the test of common sense. The more reasonable explanation is, that having found the defendant guilty under count I, and realizing that count IV was identical, the jury did not deem it necessary to indulge in specific repetition, and since defendant was in no way prejudiced by this omission, he has no grounds for complaint.

It is our opinion that the defendant in this case received the fair and impartial trial to which he was entitled, and although the sentence was indeed severe, it was not excessive. (People v. Laughery, 396 Ill. 213.) The judgment of the circuit court of Knox County is, therefore, affirmed.

Judgment affirmed.


author: Mr. Justice Davis

text:
    (No. 33934.
    The People of the State of Illinois, Defendant in Error, vs. Sylvester Moore, Plaintiff in Error.

      Opinion filed September 25, 1956.

      Sylvester Moore, pro se.

   Mr. Justice Davis

delivered the opinion of the court:

This case comes before us on writ of error brought by defendant, Sylvester Moore, to the criminal court of Cook County. By this writ he seeks to reverse judgment and sentence to the Illinois State Penitentiary for life on a habitual criminal count.

On May 11, 1955, the defendant was indicted on three counts. The first count charged Moore and Arthur Irvin with armed robbery of $65 from Robert Durand. The second count was a habitual criminal count which realleged the charge of armed robbery and further set forth that the same Sylvester Moore was indicted in Cook County on a charge of robbery by indictment No. 48705 in June, 1928, pleaded guilty, and was convicted and sentenced to “the Illinois State Reformatory at Pontiac.” The indictment further charged that the same Sylvester Moore was again indicted in Cook County in August of 1942 on a charge of robbery and larceny of personal property of the value of $16.50, by indictment No. 42-1558; that he was tried and found guilty as charged, and of having been previously convicted of robbery, and was sentenced to imprisonment in the Illinois State Penitentiary for a term of ten years. The third count of the indictment was the same as the first count, except that it failed to allege that the robbery was committed while defendant was armed.

On the trial, the State adduced evidence tending to show that Moore and Irvin had been drinking together on April 19, 1955. They got in Moore’s car and drove for some time. Irvin then got out of the car and, with a pistol, robbed Robert Durand of $65 in cash. He returned to the car and split the proceeds with Moore.

At the close of the State’s case, the State’s Attorney and counsel for Moore entered into a stipulation, in the words of the record, “relative to the habitual count of the indictment.” The stipulation first covered indictment No. 48705, and it was stipulated that if the clerk of the criminal court of Cook County were called as a witness, he would testify that the records of said court show that Moore had been indicted for robbery, pleaded guilty, and “that said Sylvester Moore was thereby sentenced to the penitentiary.” It was stipulated that the clerk would further testify that said records show that “the said Grand Jury returned an indictment No. 42-1558, the indictment charging Sylvester Moore with robbery while armed with a pistol; and habitual criminalthat he pleaded not guilty, was tried, “and convicted of larceny, value of property $16.00 and habitual criminal in manner and form as charged in the indictment. That on August 27, 1952, the said Sylvester Moore was sentenced to the Illinois State Penitentiary at Joliet, Illinois.”

Even though the indictment made no reference to the following conviction, it was further stipulated that the clerk would testify that his records show that the grand jury returned an indictment No. 42-1559, the indictment charging Sylvester Moore with robbery while armed with a pistol; that the said Sylvester Moore was duly arraigned on August 10, 1942, and pleaded not guilty; that upon trial, Moore was convicted of robbery while armed with a pistol in manner and form as charged in the indictment; that on August 27, 1942, the said Sylvester Moore was sentenced to the Illinois State Penitentiary at Joliet, Illinois.

Among the instructions given by the court was one which stated that the indictment charged “that the defendant, Sylvester Moore, has heretofore * * * been convicted of the crime of armed robbery and grand larceny * * The jury found the defendant guilty as charged, and further found that he had theretofore been convicted of armed robbery and grand larceny. Motions for new trial and in arrest of judgment were denied and the defendant sentenced, under the habitual count, to the Illinois State Penitentiary for life.

The defendant appears here pro se, and has filed a typewritten brief and argument consisting of 137 pages. His argument contains innumerable alleged errors and points, many of which are either immaterial or unintelligible to this court. We gather that his principal objections center around the habitual count of the indictment, the use of his past record in the State’s Attorney’s argument, and other prejudicial conduct of the State’s Attorney.

Neither the Attorney General nor the State’s Attorney of Cook County have appeared in response to this writ, and we are not afforded the benefit of brief or argument on behalf of the State. Because of the unprofessional nature of the defendant’s brief and argument, the court has been required to carefully examine the entire record to determine if he was fairly tried and convicted.

We will first consider whether the evidence in the record sustains the verdict. It is undisputed that Moore and his codefendant Irvin were friends and had been drinking together in a tavern from 10 A.M. until early on the afternoon of April 19, 1955. At that time they left the tavern in Moore’s car and drove about the city. Moore claims that they were attempting to find a woman with whom Irvin had formerly lived as husband and wife. Irvin conceded that he wanted to see this woman, but the evidence is clear that the search was not only fruitless, but rather aimless. After driving for a period of time, Moore told Irvin that he was running out of gas, and had no money. It is further undisputed that about 2:3o P.M. Moore stopped the car next to a laundry truck, Irvin got out of the car and went into an entry way where he accosted the laundry truck driver with a pistol and robbed him of $65.

The stories of Moore and Irvin differ in several aspects material to this case. Moore denies any knowledge of Irvin’s possession of the pistol until after the robbery. Irvin testified that he showed Moore the gun before the robbery. Moore testified that they had no purpose in going to the scene of the robbery except as an aimless search for Irvin’s so-called “wife.” Irvin testified that they went to the area of the robbery for the purpose of getting some money, spotted the laundry truck, drove around the block and stopped. Moore gives no explanation for stopping the car except that Irvin instructed him to do so. Although the testimony of Irvin was necessary to convict Moore as a principal, it is undisputed that Moore drove the car and split the proceeds of the robbery. We recognize that the testimony of an accomplice is to be received with suspicion and acted on with caution; however, a conviction may be sustained on such evidence, even if uncorroborated, if it is of such character as to convince the jury of the guilt of the accused beyond a reasonable doubt. (People v. Niemoth, 409 Ill. 111; People v. Rudnicki, 394 Ill. 351; People v. Johnston, 382 Ill. 233.) In the case before us, the testimony of Irvin is in most part corroborated by Moore himself, and the jury was properly cautioned as to the suspicion attached to the testimony of the accomplice. In such case we cannot say that the jury was unjustified in rejecting Moore’s version of the robbery

Defendant Moore attacks the habitual count of the indictment. We gather from his brief that he objects to the charge that he had been previously convicted of robbery and sentenced to the Illinois State Reformatory at Pontiac. He is correct in asserting that such an allegation is not now sufficient to charge him as an habitual offender, as the reformatory at Pontiac is not a penitentiary under the present Habitual Criminal Act. (Ill. Rev. Stat. 1955, chap. 38, par. 602; People v. Perkins, 395 Ill. 553.) However, this charge may be treated as surplusage, because the habitual count further alleged a prior conviction of grand larceny and sentence to the penitentiary. This was duly proved by stipulation, and the jury so found. Such a finding required the maximum sentence of life imprisonment. We can find no merit in defendant’s claim that the grand larceny indictment was void.

We turn next to the alleged misconduct of the State’s Attorney in argument. We have reviewed the entire record and find the following arguments made by the State’s Attorney to be the most questionable:

“As a matter of fact, Ladies and Gentlemen, after the State has rested, should there not be sufficient evidence to go to a jury it becomes the function of the judge to take the case away from the jury * * * so there must have been sufficient evidence * * * in this record to the effect that Moore also knew a robbery was going to occur.”
“This fellow sitting here, Ladies and Gentlemen, has had much experience in crime — experience dating back to 1928. But he did not stop there. He is a gunman. 1942— and he is a gunman, sentenced to the penitentiary for the gunman jobs he has been pulling.”
“But he is a fellow that goes out on robberies. He is a fellow who still, as I say after having been found out— as far as we know for sure in 1928 and 1942, has not been caught since 1942 until this time.”
“Ladies and Gentlemen, it is this kind of a man whom you read about from time to time, who is at war with your community.”
“When you get the opportunity to put this kind of a man away, Ladies and Gentlemen, persist in it because otherwise your law enforcement authorities are completely weak, for they cannot do a thing without your cooperation when the proper evidence is presented to you.”
“He (the defendant) is hoping that someone of you will be so stupid as to believe his story and set him free— a man who has waged war on society since 1928, and always with a gun.”
“Ladies and Gentlemen, I have tried thousands of cases in this building, and I never saw the likes of a man like that, a man who the State of Illinois has given three chances. Here he is back for a fourth one, and he is trying to hook Irvin.”
“But, Ladies and Gentlemen, any man who — he is forty-nine now — from 1926 or ’28, whatever it was, has waged war on each and every one of you, who has paid one debt to society, come back, and in 1942 waged war on you again — what do you want? Some other jury took pity on him, not only on an armed robbery, but on a larceny charge as well. Pity him? Pity him?”
“I say this: If you do not do it (find him guilty on the habitual criminal count) it is on each and every one of you. If you do not have that type of guts, then you should have said so from the start — that you do not have it.
“But you said that you would, and I am holding you to your word. If you do not and cannot, then you ought to walk down the streets with the likes of a man like that!
“Do you want him as a friend ? Do you want him as a neighbor ? If you do, take your gun with you.”

The record before us shows that the defendant made no objection to the foregoing arguments on behalf of the State, and the general rule is that such assignments of error will not be considered on appeal unless objections to the alleged prejudicial statements are made in the trial court, a ruling of the court obtained, and the record shows the objection and the ruling preserved. (Gaddie v. Whittaker, 344 Ill. 149; North Chicago Street Railway Co. v. Cotton, 140 Ill. 486.) However, if the argument of counsel is seriously prejudicial, a court should, of its own motion, stop the argument and direct the jury not to consider it. (McWilliams v. Sentinel Publishing Co. 339 Ill. App. 83.) As we recently held in Belfield v. Coop, 8 Ill.2d 293, at 313:

“If prejudicial arguments are made without objection of counsel or interference of the trial court to the extent that the parties litigant cannot receive a fair trial and the judicial process stand without deterioration, then upon review this court may consider such assignments of error, even though no objection was made and no ruling made or preserved thereon.”

We feel that the nature of the argument in the present case comes within this rule, and we note that neither the State’s Attorney nor the Attorney General appears here to defend it. Statements of counsel based upon the facts, or upon legitimate inferences therefrom, do not transcend the bounds of debate and are not to be discountenanced by the courts. It is proper for the prosecuting attorney to reflect unfavorably on the accused and to denounce his wickedness and even indulge in invective. (People v. Stephens, 6 Ill.2d 257; People v. Spaulding, 309 Ill. 292; People v. Lloyd, 304 Ill. 23.) The State’s Attorney had the right to dwell on the evil results of crime and to urge fearless administration of the law. (People v. Caylor, 386 Ill. 501; People v. Wood, 318 Ill. 388.) Nevertheless, the argument here cannot be so excused. From the excerpts of the argument set forth we think it clear that the prosecuting attorneys went well beyond the record in characterizing defendant as “a gunman” who has waged war on society continuously since 1928, “and always with a gun.” These remarks, coupled with the personal views and impressions of counsel concerning the case were clearly incompetent and highly prejudicial. (People v. Lettrich, 413 Ill. 172; People v. Dabney, 315 Ill. 320.) We also condemn the unsupported reference to the pity other jurors had shown the accused, and the reference to the duty of the trial judge to take the case from the jury if there was not sufficient evidence to convict. The record shows that no motion for a directed verdict was made, and it was improper for the prosecuting attorney to attempt to infer by such comment that the judge would have directed a verdict for the defendant in this case if the evidence presented did not warrant the jury in finding him guilty. The argument was prejudicial and inflammatory, and we cannot say that the accused received a fair trial. The judgment of the trial court must accordingly be reversed and the cause remanded for a new trial.

Reversed and remanded.