author: MR. JUSTICE BURKE McNAMARA, J.,

text:
    People of the State of Illinois, Plaintiff-Appellant, v. Irwinna Weinstein, Defendant-Appellee.
    Gen. No. 52,657.
    First District, Second Division.
    May 27, 1969.

      McNAMARA, J., dissenting.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John F. Ward, Jr., Assistant State’s Attorneys, of counsel), for appellant.
    Frank G. Whalen, of Chicago, for appellee.
   ON REHEARING.

MR. JUSTICE BURKE

delivered the opinion of the court.

Irwinna Weinstein and Richard Mattox were indicted for the murder of Harvey Weinstein, husband of Irwinna Weinstein. She was granted a severance. She appealed from a judgment entered on a verdict finding her guilty of murder and sentencing her to a term in the State Reformatory For Women. We affirmed the judgment. People v. Weinstein, 66 Ill App2d 78, 213 NE2d 115.

The Supreme Court granted defendant’s petition for leave to appeal. In an opinion filed September 23, 1966, the Supreme Court said: “Because of our conviction that the closing argument of the People deprived the defendant of a fair trial, the judgment of the trial court is reversed and the cause remanded for a new trial.” People v. Weinstein, 35 Ill2d 467, 220 NE2d 432.

The cause was reinstated upon the trial docket. The defendant thereupon filed a petition to suppress any confessions, statements, or admissions made while she was in custody on the ground that they were involuntary. The People appeal from an order sustaining defendant’s motion to suppress certain statements she gave to the police while at the police headquarters. In the trial of the case previously appealed the defendant did not move to suppress any evidence. On the present appeal there is no contention that the motion to suppress or the ruling thereon contravenes the mandate of the Supreme Court. See Jackson v. Glos, 249 Ill 388, 392, 94 NE 502.

Defendant asks that the appeal be dismissed on the ground that the People’s brief waives the only issue to be determined. She says that the brief does not argue that the statements were voluntary and does not cite cases that in any conceivable way could be persuasive on the issues. She further urges that the sole issue of voluntariness of the statements can only be resolved by consideration of the totality of the facts and circumstances and that the People’s brief barely touches on the facts bearing on this issue. She also insists that the People’s abstract is not sufficient to present fully the error relied upon. We are satisfied that the People’s brief sufficiently presents the issue of the voluntariness of the statements. Supreme Court Rule 342(e)(5) provides that the abstract will be taken as sufficient unless the appellee files an additional abstract with his brief. The appellee did not file an additional abstract. Rule 342(g) provides that omission of any relevant portion of the record from the excerpts shall not prejudice a party unless the reviewing court finds that there has been no good-faith effort to comply with the rule. We think that the People’s abstract adequately covers the record of the error urged and that the appeal should not be dismissed.

The People maintain that the failure of the police to give certain warnings did not amount to a denial of defendant’s right to counsel, that the absence of counsel’s physical presence during the interrogation did not amount to a denial of defendant’s right to counsel and that the defendant’s right to counsel is not determinative of the question whether or not the statement made was voluntary. The defendant answers that the decision of the trial judge that defendant’s statements were involuntarily made, was not against the manifest weight of the evidence or a clear abuse of discretion, that considering the totality of the circumstances, the judgment was proper, that the promise of release from arrest was sufficient to exclude the statements, that the absence of counsel’s physical presence during the interrogation was a factor to be taken into consideration and that whether defendant’s right to counsel or the absence of counsel during the interrogation were “determinative” depends upon what is meant by the word as used in the trial judge’s opinion.

The facts brought out at the hearing on the motion to suppress certain statements are as follows.

Testimony of Commander Francis Flanagan of the Chicago Police Department.

As part of his investigation of the death of Harvey Weinstein, he and Lieutenant John Cartan went to defendant’s home at about 7:45 p. m. on September 30, 1963. There were several persons present on the premises, including her mother, aunt, sister, a maid and a physician. After he had a conversation with some of these persons, the defendant appeared. Lieutenant Car-tan and he talked to her alone in the T. V. room, but they had not excluded the other members of the family. They did not tell defendant that she had a right to the presence of an attorney, court-appointed or otherwise, nor did they tell her that she had the right to remain silent. However, he allowed her to call an attorney if he could also talk to the attorney. The defendant’s father appeared during the questioning, and an attorney was called. Both the witness and the defendant talked to the attorney on the telephone, and the attorney was informed by the witness that the defendant was to be taken to headquarters. Defendant was given her choice of being accompanied to headquarters either by a female member of her family or by a policewoman. The defendant, her sister and the police left the home about 9:00 p. m. and arrived at headquarters about 9:30 p. m. Defendant was taken to a conference room at the headquarters, and at some point during the questioning a suitcase was brought into the room. At that point, the defendant answered certain questions asked by the witness. Prior to the production of the suitcase defendant had not answered these questions. The attorney, who had been contacted earlier, arrived at headquarters about 11:00 p. m. The defendant did not repeatedly ask for the presence of her attorney, nor did the attorney complain that he was kept waiting downstairs for hours. The witness did not tell defendant that she could not go home until she made a statement, or that she would not be allowed to attend her husband’s funeral unless she gave a statement. Defendant was released at about midnight.

Testimony of Lieutenant John Carian, called by defendant.

His testimony was substantially similar to that of Commander Flanagan. They arrived at police headquarters at about 10:00 p. m., and defendant’s attorney entered the conference room at about 11:15 p. m. or 11:30 p. m. Neither he nor any other officer told the defendant that she could not go home or attend her husband’s funeral unless she gave a statement.

Testimony of Marion Slatin, called by defendant.

She is defendant’s sister, and was present when the police arrived at her sister’s home on September 30 at about 7:30 p. m. When they arrived, the defendant who had taken a sedative was asleep. The two officers took the defendant into the den and would not let anyone else enter. Some member of the family called an attorney on the telephone, and Commander Flanagan talked to him. The witness and defendant went with the police officers to headquarters, arriving about 8:45 p. m. She was present while her sister was being questioned. Defendant refused to make a statement and requested the presence of her attorney. However, the police would not permit her to call the attorney, and informed her that if she did not make a statement she would be placed in jail and not allowed to attend her husband’s funeral. A suitcase was brought into the room about an hour after their arrival. Shortly afterwards, the attorney who had been called arrived in the room. He was upset because he had been kept waiting downstairs for hours.

Testimony of Defendant.

She did not recall what time the police arrived on September 30, 1963, because she had been asleep and under medication. While she was being questioned in the den, no one else was allowed to enter. During that time, she refused to make a statement and asked to talk to a lawyer. At no time was she advised that she had the right to an attorney and a right not to make any statements. She was allowed to call an attorney provided that Commander Flanagan could speak to him. She told her attorney that she was under arrest and asked him to meet her at police headquarters. She then asked to see a warrant for her arrest, but Commander Flanagan stated that if he went for a warrant he would return with sirens going and lights flashing. They arrived at police headquarters about 8:45 p. m. and went up to a conference room where defendant was questioned. She was told that if she did not make a statement she would be jailed and could not go to her husband’s funeral; on the other hand, if she did make a statement, she would be allowed to go home. She asked to talk to her attorney, but was not allowed to call him. After about an hour, a policeman confronted her with some articles in a suitcase; at that point she made a statement. Her attorney came into the room about 11:30 p. m., and was upset because he had been kept waiting downstairs for hours.

The defense rested, and the assistant State’s Attorney requested and received a continuance so that the attorney mentioned could be brought into court. At the next hearing, both sides rested without presenting any further evidence. The record of the hearing in the instant appeal does not reflect the contents of the statements. It is apparent, however, that the parties and the court knew that they were discussing and deciding the statement set out in our opinion, 66 Ill App2d 78, 213 NE2d 115.

The Supreme Court opinion (35 Ill2d 467, 220 NE2d 432) did not recount the evidence at the trial saying that “it is accurately summarized in the opinion of the appellate court.” Our opinion reported in 66 Ill App2d 78, 213 NE2d 115 states the testimony of the defendant in the trial of the case. In the opinion we said, (page 88): “Taken to police headquarters, the defendant was asked if she was having an affair with Richard Mattox. She replied, ‘How do you know this, who told you this ?’ When confronted with the suitcase the defendant said, ‘My God don’t open that!’ Defendant then told the police that the suitcase contained a quilt and a spread from Bonnie’s room and that they were bloody. She then told the police, substantially as she testified, that Mattox, and Harvey had a fight, that both got bloody and that Harvey said, ‘We’ll go outside and finish this’ and that they walked from the house. Mrs. Weinstein told the police that she then went to sleep.”

The only substantive issue to be determined is whether the trial court erred in finding that certain statements made by defendant were involuntary, and thus inadmissible. It is well settled that the question of the voluntariness of a confession is for the trial court to determine, and a reviewing court will not disturb the decision of the trial court unless it is manifestly against the weight of the evidence, or if the court has clearly abused its discretion. People v. Myers, 35 Ill2d 311, 220 NE2d 297; People v. Kirk, 36 Ill2d 292, 222 NE2d 498; People v. Spencer, 27 Ill2d 320, 189 NE2d 270. In the instant case, the trial judge determined that the statements were involuntary. Defendant maintains that the trial judge’s ruling should be affirmed on the theory of the totality of the circumstances. The United States Supreme Court in People v. Johnson, 384 US 719, 733, held that the rules requiring the warnings were to be applicable only to cases commenced after the date of the Miranda decision, June 13, 1966. Our Illinois Supreme Court reiterated this rule in People v. Henderson, 37 Ill2d 489, 229 NE2d 519. In People v. Worley, 37 Ill 2d 439, 227 NE2d 746, the court held that the Miranda rules were inapplicable to retrials occurring after June 13, 1966. In all cases, originally tried prior to that date, the failure to give the warnings is a factor to be considered in determining the voluntariness and admissibility of a confession.

The trial judge found that the questioning of defendant commenced in her home. He found that she was not held incommunicado. She talked to her lawyer before the police came to her home. The judge found that the defendant was permitted to make a telephone call from her home to her attorney; that she was told that she was going to be questioned by the police at Central Headquarters and that she told her attorney that she was under arrest. Commander Flanagan also told the attorney that he was going to take the defendant to his headquarters. The trial judge said that the defendant’s attorney appeared at police headquarters some two hours after the defendant arrived and thus after the statement had been taken. In this case the defendant was not held incommunicado. Her sister was with her at all times. The defendant was held for not more than an hour before she made the statement. She spoke only when confronted with the suitcase containing certain physical evidence. The presentation of the suitcase brought a spontaneous and voluntary exclamation from defendant.

The trial judge did not make a finding that the defendant’s attorney was kept waiting at police headquarters. The trial judge did not find that the defendant was threatened by the police. The defendant was advised of her constitutional rights by her own attorney. She was aware of her right to be silent and that anything she might say could be used against her. She remained silent and did not answer the police questions at her home and for a period of one hour at police headquarters. She knew that she was going to be interrogated by the police. There is no complaint of physical brutality. The defendant’s sister used the telephone during the interrogation to call the defendant’s mother to tell her not to worry. The defendant continued to talk to Commander Flanagan in the presence of her attorney for one hour. Commander Flanagan denied that the police placed any obstacles in the way of defendant’s attorney communicating with her. Lieutenant Cartan, who testified in the hearing as a witness for the defendant, corroborated the testimony of Commander Flanagan. The testimony of defendant and her sister that Attorney Mindes had been kept waiting downstairs while she was being interrogated was not based on first hand knowledge of these witnesses, but on their testimony as to what this attorney said when he arrived. The attorney did not testify.

A careful consideration of the record convinces us that the finding and order of the trial judge is against the manifest weight of the evidence. Therefore, the order suppressing the defendant’s statements is reversed and the cause is remanded for further proceedings consistent with these views.

Order reversed and cause remanded for further proceedings.

LYONS, P. J., concurs.

McNAMARA, J.,

dissenting:

As the majority opinion points out, the question of the voluntariness of a confession is for the trial court to determine, and a reviewing court will not disturb that decision unless it is manifestly against the weight of the evidence. People v. Kirk, 36 Ill2d 292, 222 NE2d 498 (1966). And in determining the character of a confession, the trial court is not required to be convinced beyond a reasonable doubt. People v. Spencer, 27 Ill2d 320, 189 NE2d 270 (1963).

Since the case was commenced prior to the effective dates of Escobedo v. Illinois, 378 US 478 (1964) and Miranda v. Arizona, 384 US 436 (1966), failure to inform defendant that she had the right to the presence of an attorney and the right to remain silent did not per se render the statements inadmissible. Johnson v. New Jersey, 384 US 719 (1966). However the United States Supreme Court has held that even in pre-Miranda interrogations, the fact that a defendant was not given the proper warnings must be considered as a significant factor in considering the voluntariness of statements later made. Davis v. North Carolina, 384 US 737 (1966). See People v. Kirk, supra; People v. Hester, 39 Ill2d 489, 237 NE2d 466 (1968).

Certain facts are undisputed. Defendant was not advised by the police of her right to the presence of an attorney, nor was she advised by them of her right to remain silent. At defendant’s home, some member of her family suggested contacting an attorney, and the police commander consented as long as he could talk to the attorney. The attorney was contacted, and the police informed him that they were taking defendant to headquarters. Some time during the evening the attorney arrived at the room where the interrogation was taking place. The trial court, in finding that the statements thereafter made were involuntary and thus inadmissible, stated:

“The fact that Commander Flanagan had personally corresponded and talked to the attorney, advising him as to where the defendant was being taken, and the fact that the attorney subsequently appeared, indicates that it was the purpose of the phone call and the purpose of the defendant, as well as the attorney, for the attorney to be present during such time as she was in custody for whatever purposes might have been indicated.”

Accordingly, the trial court found that defendant had requested the presence of counsel and that the officers were aware of her request. It further found that her right to the presence of counsel during interrogation was violated and that she was denied her constitutional rights. I do not believe that these findings were against the manifest weight of the evidence, nor did they constitute an abuse of the trial judge’s discretion. Clearly the undisputed testimony reveals that defendant and her attorney both expected and desired that he be present during interrogation. Just as clearly, the evidence indicates that there was no waiver of that request on the part of the defendant. Under those circumstances, the trial court could properly conclude that the statements were involuntarily made.

In stating that the defendant was advised of her constitutional rights by her own attorney prior to interrogation and that she was aware of her right to be silent, the majority are accepting the argument made by the State, because the record does not reveal any such advice or awareness.

While the court properly found that the deprivation of counsel was determinative of the issue of voluntariness, there was also testimony by the defendant and her sister that the statements were obtained after she had been told that she would be released only after making a statement. They further testified that the defendant was informed that she would be jailed and not be allowed to attend her husband’s funeral unless she made a statement. The State argues that since the trial judge did not comment on those charges made by the defense, he did not consider them in making his finding that the statements were involuntary. I do not agree. The trial court in rendering its opinion stated that it was “considering the totality of the circumstances,” and added that “under the circumstances in this case the court finds that the statements made by the defendant were not voluntary.” It is evident that, the trial judge considered all the factors in determining whether the statements were voluntary.

While the majority opinion properly states that the trial court did not make a finding that the attorney was kept waiting at police headquarters as charged by defendant and her sister, it should be noted that the trial judge simply found that the attorney arrived at the interrogation after about two hours, and after the statement had been taken.

Moreover, implicit in the State’s entire argument is the contention that this court is bound by the trial court’s reasons for its finding of voluntariness. While I agree with the trial court’s reasoning, even if it were to be assumed that the reasoning did not support its conclusion, a party on appeal is permitted to complain of a decision, but not the reasons given for it. Campbell v. Powers, 139 Ill 128, 28 NE 1062 (1891); Roby v. South Park Comr’s, 215 Ill 200, 74 NE 125 (1905). The only issue for this court to determine is whether all of the evidence supports the decision of the trial court. I believe it does.

In People v. Ramirez, 92 Ill App2d 341, 235 NE2d 412 (1968), in upholding the trial court’s finding that the confession was voluntarily made, this division stated in language appropriate to the instant case:

“Upon our inquiry into the nature of that initial statement, the question of its competency is a matter long reserved for the trial court to alone decide, the voluntary character of which, moreover, need not convince the court to that degree foreclosing all reasonable doubt. Accordingly, in passing upon the entirety of circumstances surrounding the rendition of that confession, our court will lend considerable credence to the findings of the trial judge who saw and heard the witnesses as to matters of credibility.” (P 348.)

I believe that the order suppressing certain statements should be affirmed.


source: Caselaw Access Project

author: MR. JUSTICE BURKE

license: Public Domain

text:
    Audrey I. Ganzer, Plaintiff, Counter-Defendant, Appellee, v. Floyd F. Ganzer, Defendant, Counter-Plaintiff, Appellant.
    Gen. No. 53,244.
    First District, Second Division.
    May 27, 1969.

      Holton, Tews & Abbey, of Chicago (Herbert R Tews and Herbert J. Theisen, of counsel), for appellant.
    Dom J. Rizzi and Frank M. Greenfield, of Chicago, for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action for divorce instituted by Audrey I. Ganzer (hereinafter referred to as “plaintiff”) on the grounds of physical cruelty. Her husband, Floyd F. Ganzer (hereinafter referred to as “defendant”), filed an answer denying the allegations of cruelty contained in the complaint. He also filed a counterclaim for divorce in which he alleged plaintiff was guilty of adultery.

After a trial without a jury, the trial court held that plaintiff failed to establish the ground for divorce alleged in her complaint, that she had committed adultery at various times during the marriage, and that defendant should be granted a divorce as prayed in his counterclaim. The court entered a decree granting defendant a divorce, and providing that defendant pay alimony to plaintiff of $50 per week, that he also pay plaintiff’s attorney fees of $1,500, and that plaintiff be allowed a one-half interest in the family home. Custody of the minor daughter born to the parties during the marriage was awarded to defendant. Defendant appeals from those portions of the decree granting plaintiff alimony, attorney fees and the one-half interest in the family home.

Plaintiff and defendant were married in October 1954, and lived together as husband and wife until they separated in February 1967, when plaintiff moved into a basement apartment in the family home. The record reveals that the husband was self-employed and conducted his business out of the family home, which the parties built during the marriage and which they owned in joint tenancy. It also appears that plaintiff, prior to and during the marriage, had been employed as a waitress and as an organist in a cocktail lounge; that she gave defendant money which she earned which was put toward the building of the family home, and that she aided in her husband’s business during the marriage by answering telephone calls. Plaintiff was not employed at the time of these proceedings. The minor daughter was born to the parties in October 1955.

After plaintiff filed this action April 26, 1967, defendant kept a written record of her activities on approximately 200 occasions. Defendant’s evidence reveals, and plaintiff does not deny, that plaintiff left the house in the late afternoon or the early evening on an almost daily basis and arrived home between 2:00 and as late as 5:30 on the following morning. Such nocturnal activities continued up to the time of the trial.

A short time after the complaint had been filed, defendant engaged private investigators to keep plaintiff under surveillance. The investigators learned that plaintiff had been seeing Patrick King on an almost daily basis, and that from May 15, 1967, until the time of trial, she had been in the King apartment on at least 52 occasions, staying there on each occasion from the late evening until 3:00 to as late as 5:00 the following morning. The evidence reveals that during the periods of time plaintiff was in the apartment, lights were switched on and off, and at times there was only what appeared to be a “night-light” illuminating the apartment. It also appears that on several occasions prior to going to the apartment, plaintiff and King spent time drinking in a cocktail lounge, during which times King was observed fondling and caressing plaintiff. The investigators also took photographs, which were admitted into evidence, showing plaintiff and King alone in the King apartment drinking cocktails.

Plaintiff admitted being in the King apartment on a daily basis, but stated that she was unable to remember the exact dates and hours spent there. She testified that during the periods of time she was in the apartment there were third parties present, and that the time was spent playing cards.

We are in agreement with defendant’s contention that plaintiff is not entitled to permanent alimony. At common law a wife, whose husband was granted a divorce due to her misconduct, was not entitled to alimony. This rule was relaxed by statute, so that the court, in its discretion and undei* proper circumstances, may grant alimony to an errant wife. (See Ill Rev Stats 1967, c 40, par 19; Boylan v. Boylan, 349 Ill 471, 474-475, 182 NE 614.) However, it has long been held that where the misconduct of the wife has been so gross, as when she has been guilty of moral delinquency such as adultery, it would be an abuse of discretion to award her permanent alimony. See Spitler v. Spitler, 108 Ill 120; Schneider v. Schneider, 286 Ill App 575, 4 NE2d 123.

Plaintiff’s whole course of conduct after the commencement of this action dictates that she is not entitled to permanent alimony. It cannot be denied that she was guilty of open and notorious adultery and yet the record fails to disclose the slightest hint of remorse or sorrow on her part. Her determination to continue her relationship with King is evidenced by her flat refusal when she was asked by defendant’s counsel if she was willing to give up her late hours in an effort to effect a reconciliation. Plaintiff continued her activities in this regard even after the investigators photographed her and King in the King apartment with their knowledge. Finally, defendant’s testimony that plaintiff told him, when they were discussing the custody of their minor daughter, that since plaintiff “had been giving her body away and not selling it, she is not a prostitute,” went undenied by plaintiff. Under the circumstances plaintiff should not have been awarded permanent alimony.

Defendant’s other two contentions, that plaintiff is not entitled to attorney fees and that she is not entitled to a one-half interest in the family home, are unavailing. Allowance of attorney fees in a divorce matter rests within the sound discretion of the trial court. Jones v. Jones, 48 Ill App2d 232, 239-240, 198 NE2d 195. Attorney fees may be allowed to the party at fault when the court finds that that party is financially unable to pay the fees whereas the other party is able to do so. Berg v. Berg, 85 Ill App2d 98, 229 NE2d 282. The record reveals that plaintiff has no means by which to pay her counsel fees and that defendant is financially able to do so. Although the trial court awarded plaintiff a one-half interest in the family home and although she does have a financial interest in that regard, she will derive no benefit therefrom until the minor daughter of the parties reaches majority; the divorce decree expressly enjoins either party from encumbering or selling the property until the daughter reaches majority so that she would have a home until then.

There is evidence in the record that plaintiff, during the marriage but prior to the separation of the parties in February 1967, assisted defendant in building and maintaining the family home and the defendant’s business. She is entitled to a one-half interest in the home. The argument raised by defendant that he was induced by fraud to purchase the property in joint tenancy with plaintiff is likewise unavailing. The property was purchased over ten years prior to the parties’ separation, and defendant points to no evidence in the record, other than conjectural inferences, showing in what manner plaintiff practiced this fraud upon the defendant. It should also be pointed out that defendant, by his own testimony on direct examination, voluntarily stated that he offered plaintiff cash and several items of personal property, the value of which aggregated over $10,000, “for her [plaintiff’s] interest in the home.”

For these reasons, the decree of divorce is modified by striking that portion relating to the award of permanent alimony to the plaintiff, and as modified the decree is affirmed.

Decree affirmed as modified.

LYONS, P. J. and McCORMICK, J., concur.


author: ME. JUSTICE McCOEMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jack A. Kent, Defendant-Appellant.
    Gen. No. 53,275. (Abstract of Decision.)
    First District, Second Division.
    May 27, 1969.
    Rehearing denied June 17, 1969.
    Eichard James Stevens, William J. Stevens, Tenney, Bentley, Guthrie, Askow & Howell, of Chicago, for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

ME. JUSTICE McCOEMICK.

Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Samuel Mastin, Defendant-Appellant.
    Gen. No. 52,257.
    First District, Fourth Division.
    May 28, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    No brief filed for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

CRIMES CHARGED

Aggravated battery and attempt to commit robbery. Ill Rev Stats (1965), c 38, §§ 12-3, 12-4, 8-4, 18-1, 18-2.

DEFENSE AT TRIAL

Self-defense.

JUDGMENT

On December 6, 1966, after a bench trial, defendant was found guilty of both charges and sentenced to terms of one to five years.

PROCEEDINGS ON APPEAL

On September '8, 1968, the attorney appointed by the trial court to represent defendant on appeal, filed a petition for leave to withdraw from the case on the ground that he was unable to find any legal points which were arguable on their merits. He also filed a brief, covering possible issues, in compliance with Anders v. California, 386 US 738. Copies of the petition and brief were served by mail upon defendant in the penitentiary on September 20,1968, and on September 30 he was notified that he might have until November 30, 1968, to file any points he might choose in support of his appeal. Defendant filed nothing additional.

Counsel’s brief covers the possible point that the evidence did not prove defendant’s guilt beyond a reasonable doubt because (1) the knife employed in the occurrence was not a “deadly weapon,” as that term is used in the statute defining aggravated battery, and (2) there was insufficient proof of defendant’s intent to rob.

At the trial, a Chicago Transit Authority plainclothes policeman testified that defendant had approached him with a knife and demanded his money. A struggle ensued and another police officer, in coming to the aid of the first, was stabbed in the hand. Defendant was also injured, but escaped, and was apprehended at a hospital where he had gone for treatment. The knife was introduced into evidence. Defendant’s story, which was obviously not believed by the trial court, was that the two policemen first attacked him with their guns drawn, and he was merely defending himself. He denied having a knife, and the two policemen denied having drawn their guns.

No testimony described the knife which was introduced in evidence. Some weapons, such as firearms, are inherently deadly, but others, even small pocket knives, may be used for a deadly purpose and become capable of producing death. Both categories of weapons therefore qualify as “deadly.” See People v. Carter, 410 Ill 462, 102 NE2d 312; People v. Clink, 216 Ill App 357; Hamilton v. People, 113 Ill 34; and People v. Dwyer, 324 Ill 363, 155 NE 316.

As to the necessary proof of defendant’s intent to rob, the express testimony of one of the policemen that defendant, on drawing the knife, said, “Give me your money,” was believed by the trier of fact who has the primary responsibility to determine credibility. People v. White, 63 Ill App2d 105, 112, 211 NE2d 9; People v. Thornton, 26 Ill2d 218, 186 NE2d 239. Defendant’s testimony produced no apparent reason for the implausible attack upon him by the policemen with drawn guns. When a defendant elects to justify his conduct, he must be judged by the improbability of his own evidence. People v. Spagnolia, 21 Ill2d 455, 458, 173 NE2d 431. We conclude that the proof on the question of intent was more than adequate.

Another point which is frequently raised in this court is that of excessive punishment. That is also unavailable here, in our opinion. Defendant had been convicted of theft in 1964 and placed on probation (as disclosed at the hearing in aggravation and mitigation). Under all the circumstances of this case, the sentences of one to five years are not too severe. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673.

In addition to considering the brief filed, we have made “a full examination of all the proceedings” as required by Anders, supra. We conclude that there are no legal points “arguable on their merits,” and that the appeal is “wholly frivolous.” Defendant’s attorney is therefore given leave to withdraw, and the judgments of the Circuit Court are affirmed.

Affirmed.

DRUCKER, P. J. and McNAMARA, J., concur.


author: MR. PRESIDING JUSTICE LYONS

text:
    People of the State of Illinois, ex rel. Richard Trebat and Mid America Federal Savings and Loan Association, a United States Corporation, Plaintiffs-Appellants, v. City of Park Ridge, a Municipal Corporation, et al., Defendants-Appellees.
    Gen. No. 53,494.
    First District, Second Division.
    June 3, 1969.

      Westbrook, Jacobson and Brandvik, of Chicago (Lowell H. Jacobson and James A. Brandvik, of counsel), for appellant.
    Shaheen, Lundberg and Callahan, of Chicago (Edgar C. Lundberg and Martin J. Lillig, of counsel), for appellees.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment entered in favor of defendant in an action for (1) a writ of mandamus to compel the City of Park Ridge to issue a building restaurant remodeling permit and (2) for a declaratory judgment that the premises in question are improperly zoned “A” Residential.

On November 13, 1953, the Park Ridge City Council, by ordinance, involuntarily annexed a parcel, which included the property involved. At the time there existed a provision in the Park Ridge City Zoning Ordinance, chapter 252-2, which provided that all property annexed to the City automatically came into the City as “A” Residential. For many years prior to the annexation and until January 22, 1964, the subject property was operated as a restaurant pursuant to the issuance of a restaurant license permit by the City.

Plaintiffs became owners of the property in 1964. On August 7, 1964, plaintiffs applied for an illuminated restaurant sign permit and a prerequisite restaurant remodeling building permit from the City of Park Ridge. The sign application was premised on the City of Park Ridge illuminated sign ordinance found in chapter I of Article 19 of the Park Ridge Code.

On September 5, 1964, the Building Board of Review unanimously approved the issuance of a building permit, provided (1) that the wall sign continue unilluminated; (2) that no sign be erected on any pole located on City property; and (3) that plaintiffs be informed of the possibility of not being able to use the entire paved area in front of the restaurant for parking after the completion of a contemplated Touhy Avenue sewer project, in that there was a strong probability that the parkway area would be sodded and a public walk constructed by special assessment. The City Council, however, directed that the building remodeling permit not be issued nor any type of sign permit be issued on the basis that such permits are permitted only in zoning districts properly zoned for restaurants.

Thereafter, in 1964, plaintiffs filed the instant action. Count I consisted of a petition for a writ of mandamus directing the issuance of building remodeling and sign permits. Count II consisted of a complaint for a declaratory judgment praying that the “A” Residential zoning classification for the subject property, under the Park Ridge Zoning Ordinance, be declared unconstitutional.

In support of their complaint for a declaratory judgment, plaintiffs contend that property which is annexed involuntarily cannot be automatically zoned “A” Residential without notice and hearing, a requirement afforded property owners within a municipality prior to the adoption of any new zoning classification, and that the classification by defendant violated the Illinois Constitution, Article 2, Section 2, guaranteeing due process of law and Article 4, Section 22, prohibiting special legislation. We disagree with plaintiffs. The Supreme Court on direct appeal entered an order stating that in their opinion the appeal did not present a novel and substantial question sufficient to give the court jurisdiction on appeal and on its own motion the court transferred the matter to this court.

In further support of their complaint for a declaratory judgment, plaintiffs contend that property which is annexed involuntarily cannot be automatically zoned “A” Residential unless the Illinois Zoning and Enabling Statutes are adhered to. Defendant contends that property which is subsequently annexed can be bound by an existing zoning ordinance and that the requirements of the State Enabling Statute need be followed only at the time the original ordinance was adopted. In rebuttal, plaintiffs contend that an existing zoning ordinance classification applicable to property which may be subsequently annexed is invalid as an exercise of extraterritorial zoning powers.

The applicable statutory provisions found in chapter 24, Ill Rev Stats (1963) are as follows:

Sec 11-13-1. [Objectives — Classification, regulation and location of uses — Nonconforming uses.] § 11-13-1. To the end that adequate light, pure air, and safety from fire and other dangers may be secured, that the taxable value of land and buildings throughout the municipality may be conserved, that congestion in the public streets may be lessened or avoided, that the hazards to persons and damage to property resulting from the accumulation or runoff of storm or floodwaters may be lessened or avoided, and that the public health, safety, comfort, morals, and welfare may otherwise be promoted, the corporate authorities in each municipality have the following powers:
(1) To regulate and limit the height and bulk of the buildings hereafter to be erected; (2) to establish, regulate and limit, subject to the provisions of Division 14 of this Article 11, the building or set-back lines on or along any street, trafficway, drive, parkway or storm or floodwater runoff channel or basin; (3) to regulate and limit the intensity of the use of lot areas, and to regulate and determine the area of open spaces, within and surrounding such buildings; (4) to classify, regulate and restrict the location of trades and industries and the location of buildings designed for specified industrial, business, residential, and other uses; (5) to divide the entire municipality into districts of such number, shape, area, and of such different classes (according to use of land and buildings, height and bulk of buildings, intensity of the use of lot area, area of open spaces, or other classification) as may be deemed best suited to carry out the purposes of this Division 13; (6) to fix standards to which, buildings or structures therein shall conform; (7) to prohibit uses, buildings, or structures incompatible with the character of such districts; and (8) to prevent additions to and alteration or remodeling of existing buildings or structures in such a way as to avoid the restrictions and limitations lawfully imposed under this Division 13.
The powers enumerated may be exercised within the corporate limits or within contiguous territory not more than one and one-half miles beyond the corporate limits and not included within any municipality. However, if any municipality adopts a plan pursuant to Division 12 of Article 11 which plan includes in its provisions a provision that the plan applies to such contiguous territory not more than one and one-half miles beyond the corporate limits and not included in any municipality, then no other municipality shall adopt a plan that shall apply to any territory included within the territory provided in the plan first so adopted by another municipality. No municipality shall exercise any power set forth in this Division 13 outside the corporate limits thereof, if the county in which such municipality is situated has adopted “An Act in relation to county zoning,” approved June 12, 1935, as amended. If a municipality adopts a zoning plan covering an area outside its corporate limits, the plan adopted shall be reasonable with respect to the area outside the corporate limits so that future development will not be hindered or impaired. If all or any part of the area outside the corporate limits of a municipality which has been zoned in accordance with the provisions of this Division 13 is annexed to another municipality or municipalities, the annexing unit shall thereafter exercise all zoning powers and regulations over the annexed area.
In all ordinances passed under the authority of this Division 13, due allowance shall be made for existing conditions, the conservation of property values, the direction of building development to the best advantage of the entire municipality and the uses to which the property is devoted at the time of the enactment of such an ordinance. The powers conferred by this Division 13 shall not be exercised so as to deprive the owner of any existing property of its use or maintenance for the purpose to which it is then lawfully devoted, but provisions may be made for the gradual elimination of uses, buildings and structures which are incompatible with the character of the districts in which they are made or located, including, without being limited thereto, provisions (a) for the elimination of such uses of unimproved lands or lot areas when the existing rights of the persons in possession thereof are terminated or when the uses to which they are devoted are discontinued; (b) for the elimination of uses to which such buildings and structures are devoted, if they are adaptable for permitted uses; and (c) for the elimination of such buildings and structures when they are destroyed or damaged in major part, or when they have reached the age fixed by the corporate authorities of the municipality as the normal useful life of such buildings or structures. (Emphasis supplied.)
Sec 11-13-2. [Zoning commission — Ordinance.] § 11-13-2. The corporate authorities in each municipality which desires to exercise the powers conferred by this Division 13 shall provide for a zoning commission with the duty to recommend the boundaries of districts and appropriate regulations to be enforced therein. The commission shall be appointed by the mayor or president, subject to confirmation by the corporate authorities. The commission shall prepare a tentative report and a proposed zoning ordinance for the entire municipality. After the preparation of such a tentative report and ordinance, the commission shall hold a hearing thereon and shall afford persons interested an opportunity to be heard. Notice of the hearing shall be published at least once, not more than 30 nor less than 15 days before the hearing, in one or more newspapers published in the municipality, or, if no newspaper is published therein, then in one or more newspapers with a general circulation within the municipality. In municipalities with less than 500 population in which no newspaper is published, publication may instead be made by posting a notice in 3 prominent places within the municipality. The notice shall state the time and place of the hearing and the place where copies of the proposed ordinance will be accessible for examination by interested persons. The hearing may be adjourned from time to time.
Within 30 days after the final adjournment of the hearing the commission shall make a final report and submit a proposed ordinance for the entire municipality to the corporate authorities. The corporate authorities may enact the ordinance with or without change, or may refer it back to the commission for further consideration. The zoning commission shall cease to exist upon the adoption of a zoning ordinance for the entire municipality.
Sec 11-13-14. [Amendments of regulations and districts — Protests.] § 11-13-14. The regulations imposed and the districts created under the authority of this Division 13 may be amended from time to time by ordinance after the ordinance establishing them has gone into effect, but no such amendments shall be made without a hearing before some commission or committee designated by the corporate authorities. Notice shall be given of the time and place of the hearing, not more than 30 nor less than 15 days before the hearing, by publishing a notice thereof at least once in one or more newspapers published in the municipality, or, if no newspaper is published therein, then in one or more newspapers with a general circulation within the municipality. In municipalities with less than 500 population in which no newspaper is published, publication may be made instead by posting a notice in 3 prominent places within the municipality. In case of a written protest against any proposed amendment of the regulations or districts, signed and acknowledged by the owners of 20% of the frontage proposed to be altered, or by the owners of 20% of the frontage immediately adjoining or across an alley therefrom, or by the owners of 20% of the frontage directly opposite the frontage proposed to be altered, is filed with the clerk of the municipality, the amendment shall not be passed except by a favorable vote of two-thirds of all of the aldermen or trustees of the municipality.
Sec 11-15.1-5. [Existing agreements — Validation] § 11-15.1-5. Any annexation agreement executed prior to the effective date of this Amendatory Act of 1963 which was executed pursuant to a two-thirds vote of the corporate authorities and which contains provisions not inconsistent with Section 11-15.1-2 hereof is hereby declared valid and enforceable as to such provisions for the effective period of such agreement, or for 5 years from the date of execution thereof, whichever is shorter.

The applicable provisions in the Park Ridge Zoning Ordinance are as follows:

252-1. PROPERTY INCLUDED. The “A” residence districts shall include the entire area of the City of Park Ridge, Illinois, excepting only the portions of said City as hereinafter included in the “B,” “C,” “D,” and “E” districts hereinafter bounded and limited.
252-2. SUBSEQUENTLY ANNEXED PROPERTY. All property hereafter annexed to the City of Park Ridge, Illinois, shall be classified as “A” residence property and so limited until subsequently changed by proper amendment hereto.
258-1. The use of a premises existing at the time of the adoption of this Ordinance, although such use does not conform to the provisions hereof, may be continued, but if such nonconforming use is discontinued any further use of said premises shall be in conformity with the provisions of this Ordinance.
258-2. The lawful use of a building existing at the time of the adoption of this Ordinance may be continued although such use does not conform with the provisions hereof, and such use may be extended throughout the building, and such nonconforming use may be extended to the entire parcel of ground immediately adjacent to such nonconforming use, owned by the nonconforming user prior to the passage of this Ordinance for purposes germane to the nonconforming use.

We agree with defendant’s contention that property which is subsequently annexed can be bound by an existing zoning ordinance and that the requirements of the State Enabling Statute need be followed only at the time the original ordinance was adopted. The Enabling Statute neither requires an amendment to a City’s Zoning Ordinance nor a notice and hearing prior to its binding effect upon the plaintiffs’ newly annexed property. The requirements of the State Enabling Statute pertain only to original zoning, and property annexed to a city becomes subject to the existing zoning ordinance of the annexing municipality at the time of the annexation.

Plaintiffs’ contention that an existing zoning ordinance classification applicable to property which may be subsequently annexed is invalid as an exercise of extraterritorial zoning powers is without merit. The question of extraterritorial zoning powers is irrelevant and is not an issue in the case at bar. In adopting the zoning ordinance classifying all subsequently annexed property to the City of Park Ridge as “A” Residential, the City did not exercise any extraterritorial zoning powers upon the subject property but rather has exercised its zoning powers upon that property only subsequent to its annexation to the City.

Furthermore, subsequent to the annexation, the Illinois Legislature passed an enactment, Ill Rev Stats (1965), c 24, § 7-1-47, which provides that:

The corporate authorities of any municipality may provide by ordinance that when territory is annexed to such municipality, the territory automatically is classified to the highest restrictive use under the annexing municipality’s zoning ordinance.

Thus, it is our opinion that it was proper for defendant, pursuant to an ordinance, to automatically zone subsequently annexed property as “A” Residential, without following the requirements of the State Enabling Statute, other than at the time the original ordinance was adopted.

In support of their complaint for a writ of mandamus for the issuance of a building restaurant remodeling permit, plaintiffs contend that the property qualified as a legal nonconforming use, pursuant to the provisions found in section 258-1 of the Park Ridge Zoning Ordinance. Defendant agrees that the use of the property by plaintiffs’ predecessors constituted a legal nonconforming use. Defendant points out, however, that on January 22, 1964, plaintiffs’ predecessor filed a petition in bankruptcy and abandoned the use of the premises for restaurant purposes and that all rights as legal nonconforming use were abandoned and the property in question reverted to “A” Residential. We disagree with defendant.

A claim that a nonconforming use has been abandoned must be shown by more than a mere cessation of use. McCoy v. City of Knoxville, 41 Ill App2d 378, 190 NE2d 622 (1963). It must appear that there is an intent to abandon the nonconforming use and a cessation of the use will not result in the loss of the right to resume such use. In the instant case, plaintiffs acquired the property and shortly thereafter, on August 7, 1964, applied for a restaurant remodeling permit. We hold there was no abandonment of the nonconforming use and plaintiff is entitled to an illuminated sign permit. The judgment of the lower court is reversed and the cause remanded with instructions to issue a writ of mandamus compelling the City of Park Ridge to issue a building restaurant remodeling permit and an illuminating sign permit.

The judgment is reversed and the cause remanded with directions.

BURKE and McCORMICK, JJ., concur.


author: MR. JUSTICE McNAMARA

text:
    Bergman & Lefkow Insurance Agency, Plaintiff, v. Flash Cab Company and Public Taxi Service, Inc., Defendants. Flash Cab Company and Public Taxi Service, Inc., Counterplaintiffs-Appellees, v. William B. Shapiro, Samuel N. Bergman, and Bergman & Lefkow Insurance Agency, Inc., Counterdefendants-Appellants.
    Gen. No. 52,391.
    First District, Fourth Division.
    June 4, 1969.

      Arvey, Hodes & Mantynband, of Chicago (J. Herzl Se-gal, Irwin I. Zatz and Malcolm S. Kamin, of counsel), for appellants.
    Philip W. Tone and Donald R. Harris, of Chicago (Raymond, Mayer, Jenner & Block, of counsel), for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Counterdefendants, William B. Shapiro, Samuel N. Bergman and Bergman and Lefkow Insurance Agency, Inc., appeal from judgments entered in favor of counter-plaintiffs Flash Cab Company and Public Taxi Service, Inc. The counterclaim alleged, in effect, that counter-defendants had, through misrepresentations and failure to disclose pertinent facts, induced counterplaintiffs to place their insurance with a financially unsound company. After a jury trial on the counterclaim, judgment was entered in favor of Flash Cab in the amount of $44,657.18 and in favor of Public Taxi in the amount of $28,876.08. Counterdefendants appeal from those judgments and the denial of their post-trial motions, contending that the judgments should be reversed for the following reasons: (1) that there was a total absence of proof of any misrepresentation; (2) that there was no basis in the evidence for a finding that appellants had failed to disclose an interest in the insurance company they recommended to the cab companies; (3) that because of the lack of privity between the parties the cab companies had no standing to sue; (4) that the cab companies dealt with Shapiro as a principal on his own behalf, and not as an agent for the other appellants; (5) that Bergman and Lefkow Insurance Agency, Inc. was not in existence at the time of the purported misrepresentation and therefore could not be liable. In the alternative, appellants contend that the cause should be remanded for a new trial because the trial court erred in admitting certain evidence; that the trial court erred in the giving of a certain instruction to the jury; that the verdict was against the manifest weight of the evidence; and that, assuming appellants would be liable, they are entitled to certain offsets against the judgments.

Flash Cab Company and Public Taxi Service, Inc. are Illinois Corporations. Arthur Dickholtz owns and is president of Flash Cab, and is the major shareholder of Public Taxi.

From 1959 until June 24, 1961, Shapiro was an employee of Berkow Corporation and Bergman and Lefkow Insurance Agency, Inc., and a vice-president of Bergman Exchange Agency, Inc. From June 24, 1961 until 1965, he was vice-president of Bergman and Lefkow Insurance Agency, Inc. From 1959 Bergman was president of these various companies.

Bergman and Lefkow Insurance Agency, Inc. was incorporated in Illinois on June 24, 1961. Shortly thereafter, it purchased substantially all of the stock of Bergman and Lefkow Insurance Service, Inc., Berkow Corporation, Bergman Exchange Agency, Inc., and Bergman Exchange Agency, Inc. of Miami. Bergmap and his wife were the old companies’ shareholders who sold their interests to the new corporation. All of these corporations were located in one office in Chicago, and Bergman and Shapiro sold insurance through all of them. Dickholtz and Shapiro had known each other for several years. Shapiro had been engaged primarily in cab insurance, and Dickholtz had purchased insurance from him on several occasions. From 1956 to 1959, Dickholtz purchased the cab company insurance from an insurance company which then went into liquidation. In November, 1959, Dickholtz had a conversation with Shapiro in which he said that his insurance carrier had just gone into liquidation and that he would like to get into a program whereby the cab companies could control their claims. Shapiro stated that he could not make a definite proposal, but would check with his office. In the early part of 1960, as the result of a proposal made by Shapiro, Dickholtz met with Shapiro and Bergman in their office, but rejected a proposed arrangement because of his inability to make a necessary deposit. In October, 1960, Shapiro advised Dickholtz that a suitable arrangement could be worked out with Exchange Casualty and Surety Co., a company that Bergman and he had formerly owned. Dickholtz testified that Shapiro informed him that only he could put this deal together because of his former affiliation with the company. He further testified that he agreed to pay Shapiro $50 per week if the arrangement were to materialize, and that he believed that Exchange would also pay him a commission. Dickholtz told Shapiro that, because of his previous unfavorable experience with insurance, he had to be careful in selecting an insurance program for the cab companies. Dickholtz testified that, while discussing Exchange’s proposal with Shapiro,

“. . . he advised me that the company was financially sound and I should have no qualms whatsoever about the capabilities of the company in carrying this risk, and that he was recommending the company, and that I should rely entirely upon his vast knowledge in this matter, having been a former officer of the company and a previous owner.”

A memorandum of this meeting was prepared by Dickholtz and was introduced into evidence. This memorandum indicated that the weekly payment to Shapiro was for consulting- services. Shapiro testified that he consulted with Dickholtz regarding claims about approximately eight times, each discussion taking no more than 45 minutes.

On November 8, 1960, Shapiro, Dickholtz and two representatives of Exchange met, and on the following day Shapiro notified Dickholtz by mail that an agreement may have been reached. That letter was written on Bergman and Lefkow Insurance Agency stationery and was signed “Bergman and Lefkow Insurance Agency, W. B. Shapiro.”

After a series of meetings and conversations, a final agreement was reached on January 1, 1961. The agreement authorized Dickholtz to solicit applications for insurance and to issue and countersign insurance policies. He was to retain 29 percent of the premiums as commission and for fees and expenses. Policies for cabs operated by both cab companies, countersigned by Dickholtz as authorized agent for Exchange, were issued. The net premiums collected, after the 29 percent deductions, were deposited to the premium account of Exchange. The commission was retained by Flash Cab, and the fees were kept in a personal account of Dickholtz known as the Taxi Drivers Emergency Fund. All claims arising out of the operations of the cabs were disposed of by Dickholtz or the cab companies. The claims were paid out of the Emergency Fund, and were then deducted from premiums due on a monthly basis. The weekly payments to Shapiro were made from this fund.

In March, 1962, Dickholtz was informed by Exchange and by the Illinois Director of Insurance that Exchange’s license had been revoked by the Michigan Insurance Department. Exchange also informed him that all agents’ licenses were cancelled. After he was notified that Exchange had been placed in receivership, Dickholtz contacted Shapiro and asked, “What is Bergman and Lefkow going to do about this?” Shapiro replied that he would talk to Bergman and advise Dickholtz of their decision. Shapiro subsequently informed Dickholtz that Bergman had stated that he was going to back up the claims of the older office clients, but that Flash Cab was on its own.

The net premium paid to Exchange during the insured period was $241,301.03. Testimony for the cab companies indicated that $60,255.66 was retained as commission, while testimony for appellants indicated that the commission amounted to $68,141.14.

Exchange was owned by a holding company, Exchange Management Company, until May 15, 1959. Bergman was president of both companies; Shapiro was secretary-treasurer of the insurance company and vice-president of the holding company. On May 15, 1959, the holding company sold Exchange to Donald Elbel for $160,000. In addition Elbel agreed to pay the holding company one-half of the saving, if any, of loss and loss expense reserves of Exchange upon liquidation of the same. A final settlement of the additional consideration was to be had on June 30, 1960, but no saving was realized. After the sale to Elbel, Shapiro became vice-president of Exchange and served until March 9,1960.

Paul Plesko, a certified public accountant, testified as an expert witness for the cab companies as to the financial conditions of Exchange. He had examined the annual reports of the company filed with the Director of the Illinois Department of Insurance for the years 1957 through 1961. According to his testimony, Exchange suffered a loss from operations in 1957, 1958 and 1959. Policyholders’ surplus was $702,667 at the end of 1957; $518,601 at the end of 1958; and $439,748 at the end of 1959. During 1958, shareholders contributed assets valued at $150,000, and in 1959 they contributed assets valued at $740,000. Of this latter contribution, $315,-000 consisted of stock not listed on any exchange or in any over-the-counter list. Plesko testified that Exchange would have been insolvent except for these contributions. Loss reserves for the three years were substantially below actual loss experience; the companies’ liquid assets declined about one-half; and total assets also declined.

The cab companies also attempted to introduce testimony from Plesko concerning the financial condition of Exchange as of December 31, 1960, as reflected in its annual report filed in March, 1961. Appellants objected to the testimony on the grounds that it was irrelevant and the objection was sustained. However the 1960 and 1961 annual reports were admitted into evidence. These reports indicated on their face that the company’s liquid assets and its ratio of liquid assets to total assets continued to decline in 1960, while the percentage deficiency in the reported reserves continued to increase. There was also a further decline in the ratio of liquid assets to total loss reserves in 1960.

In March 1959, prior to the sale to Elbel, Exchange ceased writing new business and did not resume until October 1959.

The jury returned a verdict for the amounts paid out by the cab companies in settlement of accident claims which they assumed after Exchange’s failure, and fees and expenses incurred in the defense of these claims.

Appellants first contend that there was a total absence of proof of any misrepresentations, arguing under this heading that the statements made by Shapiro were merely nonactionable opinions and not statements of fact; that there was no evidence in the record as to the financial condition of Exchange in October 1960; and that the statements were not false since Exchange was solvent in October 1960.

In Buttitta v. Lawrence, 346 Ill 164, 178 NE 390 (1931), the court held that whether a statement is an affirmation of fact or of opinion depends upon the circumstances of the case. The court stated at page 173:

“Wherever a party states a matter which might otherwise be only an opinion but does not state it as the expression of the opinion of his own but as an affirmative fact material to the transaction, so that the other party may reasonably treat it as a fact and rely upon it as such, then the statement clearly becomes an affirmation of the fact within the meaning of the rule against fraudulent misrepresentation.”

In Endsley v. Johns, 120 Ill 469, 12 NE 247 (1887), plaintiff was selling cattle and was told by defendant that the prospective buyer was solvent and that his check would be honored. This proved not to be the case, and suit was filed by the seller. After a trial, judgment was entered for plaintiff against the third party making the assertion. In affirming the judgment, the court found that while false assertions as to value between vendor and vendee are not actionable since in such cases the parties’ interests are antagonistic and consequently they should be on guard, the rule is different where a third party without interest in the matter makes a representation as to the credit, solvency or reliability of another. At page 481, the court went on to say that in such instances:

“The position of the parties is not antagonistic,— rather one of confidence. In such case, if the material representation is knowingly falsely made to one ignorant of its falseness, under circumstances justifying a reasonably prudent man’s belief, and it is believed and acted upon with consequent injury, an action therefor will lie; . . . .”

In applying these general rules to the evidence in the instant case, we find that there was sufficient evidence for the jury to reasonably conclude that Shapiro’s statements constituted representations as to material facts upon which the cab companies were entitled to rely. He stated that Exchange was “financially sound.” He told Dickholtz that he should “have no qualms whatsoever about the capabilities” of Exchange to carry the risk. As a former officer, he stated that he had “vast knowledge” of the company, and informed Dickholtz that he could rely entirely on that knowledge. These statements constituted matters of fact made by a person who represented himself as having a special knowledge of those facts.

The case cited by appellants as controlling, Fetherston v. National Republic Bancorporation, 280 Ill App 151 (1935), is clearly distinguishable from the instant case. In that case an action in fraud and deceit was brought based upon advertisements and upon a letter written in June, 1931 by the president of the defendant corporation to various bank presidents, in which he described certain banks, including the one in question, as being sound, strong and liquid; and that these banks had proved their soundness by their ability to meet the tests brought by present economic conditions. The bank in question closed in June, 1932. In affirming the dismissal of the complaint, the court pointed out that the letter was merely one of encouragement and could not have been expected to forecast the severe financial crisis ahead. The statements by Shapiro cannot be categorized as words of encouragement. They were statements of fact, and moreover he expressly assured Dickholtz that he could rely on them.

Appellants also contend that the record is devoid of any evidence of Exchange’s financial condition in October 1960, the time at which Shapiro madq his statements. They base this argument on the fact that the trial court sustained their objection to the expert testimony of the accountant Plesko as to the year 1960. Without considering the cab companies’ argument that appellants cannot rely on the absence of proof which was excluded on their own objection, we find that there was ample evidence in the record as to Exchange’s financial condition in October 1960. The testimony of the accountant revealed that Exchange was in a precarious financial condition at the end of 1959. The policyholders’ surplus had been reduced to about $440,000, and would have vanished entirely except for capital contributions of nearly $900,000 in the years 1958 and 1959, one-third of which consisted of unmarketable securities. In addition, despite the fact that the expert testimony concerning 1960 was excluded from the jury’s consideration, Exchange’s annual reports for the years 1960 and 1961 were admitted into evidence. These reports on their face revealed a continuation of the financial deterioration of the company, and indicated a sharp decline in liquid assets and a further decline in the relationship of liquid assets to total loss reserves as compared with the 1958 and 1959 reports.

Merely because Exchange was solvent in October 1960 at the time of Shapiro’s statements did not establish the truth of Shapiro’s representations. He did not state that the company was solvent. He described it as financially sound at a time when except for capital contributions, it would have been insolvent. He assured Dickholtz that he should have no worry about the ability of Exchange to carry the risk when the evidence showed that during the previous year while he was an officer, the company had been forced to stop writing new business for several months. Moreover he made these statements with full knowledge of the cab companies’ previous unfortunate experience with an insurance company, and of Dickholtz’ concern with associating the cab companies with a sound insurance company.

We agree with appellants’ next contention that there was no evidence in the record that they failed to disclose retention of a financial interest in Exchange at the time of Shapiro’s statements, as Shapiro and Bergman had sold their interest in Exchange in May, 1959. While it is true that in addition to the sales price, the parties agreed that the purchaser would pay Shapiro and Bergman one-half of the savings, if any, on the loss and loss expense reserve of Exchange, the contract clearly provided that this possibility of a supplemental interest to the sellers would be totally extinguished on June 30, 1960, four months prior to Shapiro’s representations to Dickholtz. Since the evidence also shows that Shapiro described himself as a former officer and owner of the company, it is evident that there was no concealment of any present interest in Exchange. However, the cab companies submitted two issue instructions which presented two grounds of recovery, both of which were given to the jury: (1) that appellants knowingly misrepresented material facts concerning the financial condition of Exchange; (2) that appellants failed to disclose that they retained an interest in Exchange. Objection was made to the ‘misrepresentation’ instruction, but no objection was made to the ‘failure to disclose’ instruction. Further no motion was made to withdraw either issue from the jury. Section 68(4) of the Civil Practice Act provides as follows:

If several grounds of recovery are pleaded in support of the same demand, whether in the same or different counts, an entire verdict rendered for that demand shall not be set aside or reversed for the reason that any ground is defective, if one or more of the grounds is sufficient to sustain the verdict; nor shall the verdict be set aside or reversed for the reason that the evidence in support of any ground is insufficient to sustain a recovery thereon, unless before the case was submitted to the jury a motion was made to withdraw that ground from the jury on account of insufficient evidence. . . . (Ill Rev Stats, cllO, §68(4) (1967).)

There was neither a motion to withdraw the issue from the jury nor an objection to the instruction covering the failure to disclose. Consequently the verdict of the jury cannot now be set aside, since, as we have noted, there was ample evidence presented to support the jury’s verdict on the issue of misrepresentation. See Darling v. Charleston Community Memorial Hospital, 33 Ill2d 326, 211 NE2d 253 (1965).

We find no merit in appellants’ contention that the action must fail because of a lack of privity between them and the cab companies. A cause of action for misrepresentation does not depend upon a contractual relationship. In such actions it is not necessary to show any privity of contract between the parties. Weatherford v. Fishback, 4 Ill 171 (1841); Bauman v. Bowles, 51 Ill 380 (1869). Nor is it essential to show that the party making the misrepresentation had any interest in the subject matter or received any benefit therefrom. Leonard v. Springer, 197 Ill 532, 64 NE 299 (1902). The essentials of such an action are that there be a misrepresentation of a material fact, with either knowledge of its falsity or a reckless disregard for its truth or falsity, to a party with the intention that he rely on it, and that the believing party does so rely, with resultant damages. Edwards v. Chicago & N. W. Ry. Co., 79 Ill App2d 48, 223 NE2d 163 (1967). Shapiro made misrepresentations to Dickholtz, the president and chief shareholder of the cab companies who at the time was acting on behalf of the cab companies in seeking a sound insurance relationship for those companies. That fact is not altered because, subsequent to the misrepresentations, Dickholtz became an agent for Exchange in the writing of policies, or by reason of Dickholtz’s agreement to pay Shapiro $50 per week out of a claim fund.

Cases relied on by appellants are clearly distinguishable from the case at bar. In National Iron & Steel Co. v. Hunt, 312 Ill 245, 143 NE 833 (1924), the court found that there was no liability because the misrepresentations contained in a report issued by defendants was made to a third party, and not to plaintiffs. Further, the report was issued prior to any contact between plaintiffs and defendants. In Aetna Ins. Co. v. Illinois Cent. R. Co., 365 Ill 303, 6 NE2d 189 (1937), plaintiff brought suit against a carrier for having negligently lost a mail pouch, the court found that the carrier’s duty was dependent upon a contract and held that since plaintiff was not a party to that contract, it could not recover.

Appellants also argue that Dickholtz’s failure to make an independent investigation of the financial condition of Exchange constituted negligence, and thus absolved appellants from liability. The rule is that negligence on the part of a defrauded party does not bar his right of recovery from a person who intentionally misrepresented facts upon which the defrauded party had a right to rely. Peterson v. Yacktman, 25 Ill App2d 208, 166 NE2d 452 (1960). Moreover, since Dickholtz was dealing with a former officer and owner of Exchange who held himself out as having special knowledge of that company’s financial soundness, he was justified in relying completely on Shapiro’s representations.

Appellants next contend that Shapiro was acting as a principal on his own behalf and not as agent for the other appellants. The first issue to be determined under this contention is whether there is sufficient evidence to support a finding that Bergman is individually liable. The cab companies contend that the evidence proves that Shapiro was acting on behalf of Bergman.

One who permits the holding out of another as his partner is estopped to deny the partnership relationship as against third persons who rely on the existence of the apparent partnership. Reynolds v. Radke, 112 Ill App 575 (1903).

Shapiro held himself out to be a partner with Bergman, and informed Dickholtz that he was a partner. In discussing one possible insurance arrangement, Dickholtz met with both Shapiro and Bergman in their offices. Subsequently, after Dickholtz had met with Shapiro and representatives of Exchange, Shapiro wrote Dickholtz on Bergman and Lefkow Insurance Agency stationery with both Shapiro and Bergman’s names on the letterhead. This letter indicated that it appeared that a deal could be worked out and was signed “Bergman and Lefkow Insurance Agency — W. B. Shapiro.” However, the strongest evidence that Shapiro was also acting on behalf of Bergman was the uncontradicted testimony of Dickholtz that upon his notification that Exchange had been placed in receivership, he called to find out what would be done. Shapiro replied that he did not know how Bergman would consider it, but that he would inform Dickholtz. He later informed Dickholtz that Bergman was going to protect the older office clients, but that Flash would not be so considered. The jury was properly instructed as to the definition of agency and the scope of an agent’s authority, and we find that the evidence supported its finding against Bergman individually.

Appellants urge that Bergman and Lefkow Insurance Agency, Inc. could not be bound by any misrepresentations made by Shapiro in October 1960, because it was not incorporated until June 24, 1961, and therefore was not in existence at the time the statements were made. Appellees contend that it should be liable because it is merely a continuation of the old corporations.

In Loughlin v. United States School Furniture Co., 118 Ill App 36 (1905), affirmed, Perry v. United States School Furniture Co., 232 Ill 101, 83 NE 444 (1908) the court stated at page 39:

“If the officers or stockholders of a corporation form another corporation and transfer the good will, business and assets of the old corporation to the new without paying the just debts of the old corporation, equity will follow such property into the new corporation and subject it to the payment of such debts the same as though no transfer had been made.”

Accord, Kraft v. Garfield Park Community Hospital, 296 Ill App 613, 16 NE2d 936 (1938). In Plaza Express Co. v. Middle States Motor Freight, Inc., 40 Ill App2d 117, 189 NE2d 382 (1963), this court extended the liability of a new corporation to include, in certain instances, the old corporation’s liability for torts, stating at page 124-5:

“. . . liability founded on a tort, like any other liability, may be impliedly assumed by a new corporation which represents only a ‘new coat’ for its old owners.”

There was sufficient evidence to support the conclusion that Bergman and Lefkow Insurance Agency, Inc. was merely a continuation of the dissolved cornpañíes. The prior companies had all been located in one office, and all were engaged in the same business. When they were dissolved, the new corporation continued to operate the same business. Bergman, who had been an officer in all of the prior companies, and Shapiro, who had been an officer in one of the prior companies, both continued as officers in the new corporation. "Bergman and his wife were the shareholders selling their interests in the dissolved companies to the new corporation for cash. And again it should be noted that when Dickholtz called Shapiro to ask what “Bergman and Lefkow were going to do” about Exchange’s failure, he was informed by Shapiro, after a conference with Bergman, that they were going to take care of the older office clients. This clearly revealed that the officers themselves considered the new corporation merely a continuance of the old companies.

Appellants further request that if the judgments are not reversed outright, that the cause be remanded for a new trial, first arguing that the court erred in allowing into evidence the contract of sale between Exchange and Donald Elbel. Although we have found that the appellants did not conceal an interest in Exchange, the contract of sale was properly introduced in evidence to show that at the time of the sale, May 15, 1959, appellants knew of the poor financial condition of Exchange, since despite the fact that the company’s books reflected a net worth of about $350,000, the sale price was only $160,000.

Appellants also urge that the trial court erred by allowing into evidence Exchange’s annual statements for the years 1957 through 1959. However these statements were relevant to show the continual decline in Exchange’s financial position and to also show that Shapiro’s representations were false.

We also find that the trial court did not err in allowing into evidence the schedules prepared by the cab companies’ expert. These schedules summarized the information contained in the annual statements for 1957 through 1959. An interpretation of financial data by a qualified witness is admissible. People v. Cowgill, 334 Ill 635, 166 NE 535 (1929). And the use of exhibits and diagrams during trial is within the discretion of the trial court. Behles v. Chicago Transit Authority, 346 Ill App 220, 104 NE2d 635 (1952).

The appellants further contend that the court erred in giving the counterplaintiffs’ instruction No. 12, the issues instruction covering misrepresentation. Their objection to the instruction at trial and in the post-trial motion was that there was no evidence of misrepresentation. As we have noted, there was ample evidence of misrepresentation, and the giving of the instruction was proper. The jury was properly instructed; no prejudicial error occurred in the admission of evidence; and the verdict was not against the manifest weight of evidence.

Appellants finally argue that if the judgments are affirmed they are entitled to offsets against those judgments for the reasonable value of services rendered. They contend that the reasonable value of such services is the total commission paid, a sum amounting to over $60,000.

At the close of the trial, appellants contended that they were entitled to argue to the jury the deductibility of the amount of the commission paid. The trial court ruled that they could not so argue; and instructed the jury that the cab companies’ damages were not to be reduced by the commissions deducted from gross premiums.

We believe that the trial court ruled correctly in the giving of the foregoing instruction. We also agree with the cab companies that the position of the appellants in claiming these commissions as offsets is untenable.

The record is completely devoid of any evidence tending to indicate that the cab companies promised, explicitly or implicitly, to pay appellants any more than $50 per week paid to Shapiro from the Taxi Drivers’ Emergency Fund. The contract between Exchange and the cab companies, of which appellants had notice, expressly provided that Dickholtz would get the commission. And until the conference on instructions at this trial, appellant had made no demand for additional payment for services rendered.

The memorandum introduced into evidence indicated that Shapiro was to receive payment as a claims consultant. However, the evidence revealed that Shapiro spent no more than six hours discussing claims with Dickholtz. Further Dickholtz testified that this $50 per week payment was made because only Shapiro, by virtue of his affiliation with Exchange, could make the arrangement. He also testified that he believed Exchange would pay Shapiro an additional commission.

Whether the consideration was the total of $2,400 actually paid, or whether appellants were hoping for additional business from the cab companies, is immaterial. There was no promise of any additional payment, and appellants are not entitled to offsets.

The judgments of the Circuit Court are affirmed.

Judgments affirmed.

ENGLISH and STAMOS, JJ., concur.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Stewart, Defendant-Appellant.
    Gen. No. 52,014.
    First District, Third Division.
    June 5, 1969.
    Rehearing denied June 27, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Professor James R. Thompson, Northwestern University School of Law, James J. Doherty and Marshall J. Hartman, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James R. Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

After a trial by jury, the defendant, Willie Stewart, was found guilty of the crimes of robbery and aggravated battery. He was sentenced for the crime of robbery to a term of seven to twenty years and for the crime of aggravated battery to a term of seven to ten years, the sentences to run concurrently.

The defendant contends: 1) the victim’s initial identification of the defendant was a violation of due process and was therefore erroneously admitted at trial; 2) the victim’s second identification of the defendant at the preliminary hearing was tainted by the initial identification and was also inadmissible; 3) it was error for the trial court to exclude the defendant’s tendered one-man showup instruction; 4) the State’s instruction relative to the identification of the accused was erroneous; and 5) the defendant was not proven guilty beyond a reasonable doubt since the identification of him was vague and uncertain.

On December 11, 1965 the victim, Helen James, was returning from work at about 12:45 a. m. She heard a noise behind her and, when she turned, she saw a man rushing toward her. The assailant struck her and grabbed her around the neck. During the struggle the victim bit the assailant’s right hand. On direct examination, the victim stated: “I got a good look at him when he first attacked me and when he bent over me while I was on the ground.” The entire attack took place under a streetlight. After snatching her purse, the assailant fled and Mrs. James’ screams attracted her neighbors who came to her aid and took her to the hospital. None of the neighbors saw the assailant.

On January 28, 1966 the defendant, Willie Stewart, was arrested on another matter, and the arresting officer, Theodore Marshall, noted that the defendant fit the description of the attacker given to the police by Mrs. James. Officer Marshall noted that the defendant had an oval scar on his right hand which looked as if it could have been caused by a bite. The defendant told him that he received the scar from moving furniture. The police called Mrs. James and asked her to come to the police station as they had someone for her to view. Mrs. James was taken to a small courtroom in the same building where the defendant was seated with about fifteen other men. When Officer Marshall arrived, the victim was already seated in the back of the courtroom and he asked her if she saw the man who had robbed her. She replied that she did and pointed out the defendant. Mrs. James also testified that while in the courtroom, prior to the officer’s arrival, she told her husband that she saw her assailant. She further testified that there was no doubt in her mind that this was the man who had attacked and robbed her.

The defendant took the witness stand in his own behalf and denied any participation in the attack. He stated that he was in the Palace Hotel on the evening in question. He further testified that when he came out of the courtroom a police officer called him and asked Mrs. James “What about this, have you seen him before?” She replied “Yes, I saw him before,” whereupon he was arrested.

It is the defendant’s position that the circumstances surrounding his initial identification were such that he was denied due process of law under the standards set forth in Stovall v. Denno, 388 US 293. The Supreme Court, in Stovall held that if a confrontation is “so unnecessarily suggestive and conducive to irreparable mistaken identification” it could be termed a violation of due process and grounds for reversal. In this regard, the defendant stresses his testimony that the police officer inquired of the victim outside the courtroom “Have you seen him before?” Such a question, the defendant argues, was highly suggestive as it singled out the defendant as the man to choose. Such an argument first ignores the fact that Officer Marshall denied arresting the defendant outside the courtroom door in the presence of the victim nor did he tell the victim that he had arrested the defendant. Apart from the defendant’s testimony, there is nothing in the record to indicate that such a conversation outside the courtroom took place. The defendant also ignores the fact that there is direct and uncontroverted testimony by Helen James and Officer Marshall that the victim pointed out the defendant from among fifteen prisoners while in the courtroom and without any suggestions made by the police. The court in People v. McMath, 104 Ill App2d 302, 244 NE2d 330, in its discussion of the due process standards announced in Stovall v. Denno, supra, said:

“If such great unfairness is not demonstrated by the evidence, then the fact that the pretrial confrontation was not made in a lineup becomes a question of the weight to be given it by the jury, and does not serve to raise any question as to the admissibility of the in-court identification.”

Under the totality of the circumstances in the instant case, we are of the opinion that Helen James’ identification of the defendant in the courtroom was not violative of the defendant’s due process guarantees.

Since we find that the initial identification was not a violation of due process, it follows that reidentification by Mrs. James at the preliminary hearing was also proper and admissible.

The defendant also contends that it was error for the court to refuse his tendered instruction relative to a “one-man showup.” The tendered instruction which was refused reads as follows:

“The Court instructs the jury that where one under arrest is brought alone before a person who is present for the purpose of identifying a suspect and who knew that the person arrested is to be brought before her for identification it is not unlikely that such surrounding circumstances might influence further one who seeks to identify such suspect. The Court further instructs the jury that such identification cannot be given the same weight and credibility as where the witness had picked out the suspect from a number of persons unknown to her.”

The court gave the State’s instruction which reads in pertinent part:

“The Court instructs the jury that in determining whether or not the defendant has been identified as the person who committed the offense charged against him, if any such offense was committed, you must consider all the testimony in the case, . . . , considering the means of identification; the circumstances under which he was identified; the opportunity for identifying the said defendant; the influence brought to bear on any person claiming to identify the defendant, if any such influence existed; 99

The State’s instruction adequately instructed the triers of fact on the questions of the credibility and weight to be accorded the evidence relative to the defendant’s identification. The defendant’s instruction was properly-refused because it would serve to specifically single out one facet of the evidence in the case to the exclusion of other evidence surrounding the identification of the defendant. (See: People v. Laczny, 63 Ill App2d 324, 211 NE2d 438.) In addition, the tendered instruction, under the facts adduced at trial, is highly questionable since it refers to a one-man showup whereas the defendant was identified from a group of about fifteen men. It is also worthy of note that the Illinois Pattern Instructions, Criminal, § 3.15 “Circumstances of Identification” contains only the following comment:

“The Committee recommends that no instruction be given on this subject. It is adequately covered by the general instruction on credibility of witnesses, No. 1.02, supra. However, the circumstances of an identification are a proper subject of closing argument.”

A reading of the defense’s closing argument discloses that defense counsel did in fact direct the jury’s attention to the circumstances surrounding the identification of Willie Stewart by Helen James. We therefore find no merit to this contention advanced by the defendant.

The following State’s instruction which was given is also assigned as error:

“The Court instructs the jury, that the testimony of a witness as to identification of the accused, if positive, and if the witness is credible, is sufficient to convict, even though contradicted by the accused.”

This instruction, when read together with the other instructions submitted to the jury, was proper and the court did not err in giving this instruction over the defendant’s objection.

The defendant’s final point is that he was not proven guilty beyond a reasonable doubt because his identification was vague and uncertain. We cannot agree. The victim’s identification of the defendant was uncontradicted and unimpeached. Even though the victim stated that she saw the defendant’s face during the attack for a matter of only several seconds, there was no doubt in her mind that Willie Stewart was her assailant. She testified that the attack which lasted three to four minutes occurred under a streetlight and that she “got a good look” at the defendant. The scar on the defendant’s right hand further corroborates her identification. The defendant offered no evidence to corroborate his testimony that he was at a hotel on the night of the attack. On direct examination, the defendant denied having any marks on his right hand at the time of his arrest, but, on cross-examination, he admitted to having a “scratch” on his hand when arrested. The jury in the instant case accepted the testimony of the complaining witness while rejecting the testimony of the defendant, and upon a review of the record, we cannot say that the evidence did not prove beyond a reasonable doubt the defendant’s guilt.

For the foregoing reasons, the judgment is affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.