author: MR. JUSTICE SEIDENFELD

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Steve Malston, Defendant-Appellant.
    Gen. No. 69-147.
    Second District.
    May 7, 1970.

      Thomas E. Hornsby and Edwin S. Wadsworth, of Dixon, for appellant.
    Albert N. Kennedy, State’s Attorney, of Dixon, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Steve Malston, the defendant, then age 17, was charged in a criminal complaint with the offense of indecent liberties with a minor female child age 12 years, occurring on February 23rd, 1969. (Ill Rev Stats 1967, c 38, § 11-4.) Judgment of conviction was entered upon the jury finding of guilty, and defendant was sentenced to a term of 4 to 10 years in the penitentiary.

He claims that reversible error was committed in the exclusion of evidence offered on his behalf and by prejudicial argument of the prosecutor.

The complaining witness testified to an act of intercourse with defendant which she said occurred on the February 23rd date. Counsel, on cross-examination, was allowed to ask the question, “Did you ever have sexual relations with anyone else,” to which the girl answered, “No.” He then asked, “Did you ever say you did,” and the girl again answered, “No.” In further cross-examination counsel asked, “Did you ever state to the police or anyone else you had sexual relations with some other male person around that time?” The court sustained the prosecutor’s objection stated to be on the ground, “She already testified to that.” When the public defender indicated he was asking the question for impeaching purposes, the court responded, “You have asked the questions, there is no need repeating.”

The witness was then asked whether she had been interviewed at the police station by a lady and she answered without objection, “Yes.” When counsel sought to inquire what she told the lady “regarding this affair,” the court sustained an objection. The defense counsel then asked,

Q. “Did you tell her you had been raped by a bearded man?”
A. “Yes.”
Mr. Merrick (for the prosecution): “Objection to what she might have told another person.” The Court: “The Court is of the opinion any conversation she had with another witness, it might be properly gone into by the witness. I will sustain the objection, and instruct the jury to disregard the answer . . . .”

The State argues, without citation of any authority, that since the witness had answered “No” to counsel’s previous inquiry whether she ever said she had sexual relations with anyone other than defendant, the objection to further questions on that subject was properly sustained as an exercise of judicial discretion. The State further suggests that no proper foundation was laid for the questions because the defense “failed to establish the hour, the month or the year of the conversation and did not establish who was present nor specify what the questioner meant by the words ‘this affair.’ ”

Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility. The evidence is not admitted as proof of the facts stated out of court, but to cast doubt on the testimony of the witness by showing his inconsistency and is, therefore, not hearsay. The People v. Moses, 11 Ill2d 84, 87, 142 NE2d 1 (1957); The People v. Morgan, 28 Ill2d 55, 63, 190 NE2d 755 (1963). It has often been stated that an accusation of rape or other sexual offenses is easily made, hard to be proved, and still harder to be defended, thus charging a reviewing court with a duty to carefully examine the evidence. The People v. Scott, 407 Ill 301, 304, 95 NE2d 315 (1950); The People v. Qualls, 21 Ill2d 252, 257, 171 NE2d 612 (1961). While the trial court is given discretion in ruling on the extent of cross-examination, the accused should be given wide latitude in his cross-examination of the State’s witnesses and this is especially applicable to the testimony of the complaining witness in a sex case. People v. Rainford, 58 Ill App2d 312, 315, 208 NE2d 314 (1965).

The questions asked by the public defender were inartful and were inadequate to establish a proper foundation for impeachment. A proper foundation requires that the witness be asked as to the time, place and persons involved in the alleged conversation, and the witness must also be asked whether he made a certain contrary statement at that time, to avoid unfair surprise. The People v. Moses, supra, at page 87; People v. Rainford, supra, at page 317. However, the questions here could reasonably be regarded as preliminary to subsequent impeachment, and the erroneous position of the court which was, in effect, that such questions called for hearsay and should be asked of the other party to the alleged conversation, effectively prevented the testing of the credibility of the witness on an issue which concerned the subject matter of the crime charged. Whether the prosecutrix had made inconsistent statements shortly after the time of the alleged crime involving a person or persons other than the accused was crucial, particularly since the testimony of the complaining witness was the only evidence to establish the defendant as the perpetrator of the offense. See The People v. Whitehead, 35 Ill2d 501, 504, 505, 221 NE2d 256 (1966); and People v. Rainford, supra, at pages 318, 319.

We conclude that the court abused its discretion in so limiting the cross-examination of the prosecutrix and thereby committed reversible error.

The error was compounded, in our opinion, by the court’s rulings regarding the testimony of Marlene Fahs, the acting police matron, who was in the police station when the complaining witness was present on February 24th, the day following the charged offense.

The time, place, and those present was elicited from the witness. The witness testified that she had a conversation with the alleged victim; she then began to talk about the “story” that the girl told her. On objection, the court informed her that she must relate the conversation in terms of who said what to whom. The witness then stated that there was no conversation between the girl and herself, that she was listening to the girl’s conversation with the police officers who were present.

Defense counsel then asked whether the witness was present at the preliminary hearing in the case, and she responded that she was. Counsel then asked whether certain questions were asked her at that hearing by defendant’s counsel. The State’s Attorney then objected to any questions with reference to the preliminary hearing, and the court said “You can’t get in the position of impeaching your own witness.” Defendant’s counsel persisted in asking about the conversation and the witness still referred to the “story” and objections were sustained, the court commenting that “You called her and you are bound by her testimony.” Defense counsel then asked,

Q. “Mr. Fahs, do you recall the preliminary hearing here in Dixon ?”
A. “Yes.”
Q. “Do you recall the court asking this question?”
Mr. Merrick: “Objection to any question asked at the preliminary hearing.”
The Court: “Sustained.”

Marlene Fahs testified for the prosecution at the preliminary hearing. Although called as a defense witness at the trial, when it appeared that she first admitted that she had a conversation with the girl on February 24th, then denied that the conversation was between herself and the girl, defendant’s counsel should have been allowed to refresh her memory with her testimony at the preliminary hearing.

When a witness unexpectedly gives testimony against the party calling him, such party has the right to examine him to show that fact and to specifically call the attention of the witness to former statements made by him for the purpose of refreshing his memory or awakening his conscience. The People v. Michaels, 335 Ill 590, 592, 167 NE 857 (1929); SHA, c 110A, § 238, and Committee comments. See also The People v. Wesley, 18 Ill2d 138, 151, 163 NE2d 500 (1959); and The People v. Rongetti, 344 Ill 278, 284, 176 NE2d 298 (1931).

It appears from the memorandum opinion of the trial judge filed with the record that the trial court reasoned, “The defendant cannot impeach his own witness which is a fundamental rule of evidence.” In that opinion the court charged ineptness of counsel in laying the foundation for the conversations and felt he could not intervene to try defendant’s case for him. However, it appears to us from all of the circumstances that the court did not exercise discretion under Supreme Court Rule 238, supro, to determine whether the witness was hostile or unwilling but instead believed that the law inflexibly prevented the impeachment or even the refreshing of recollection of a witness by the party calling her under any circumstances.

Under this record, defendant was deprived of a fair trial by prejudicial error and a new trial is required.

The remaining claims of error argued by the defendant do not have substantial merit, in our opinion, and require no discussion.

Reversed and remanded.

ABRAHAMSON and MORAN, JJ., concur.

       The record contains a transcript of the pertinent portion of Marlene Fahs’ testimony at the preliminary hearing as attached to the post-trial motion. It appears that the “story” she alluded to was the version of the incident the girl had told to the police officers concerning “three bearded men” and that Mrs. Fahs did not go into the details of what the girl had said to the officers. However, she did ask the girl if the “story” she had told was true, and testified that the girl answered “Yes.” The witness then testified that she asked, “Did the men pick you up” and she said “Yes” and I said “Did they take you out in the country” and she said “Yes.”


source: Caselaw Access Project

author: JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    Alexander Saghin and Maria Saghin, Husband and Wife, Plaintiffs-Appellants, v. Alexander Romash and Elizabeth Romash, Husband and Wife, Defendants-Appellees.
    Gen. No. 69-157.
    Second District.
    May 11, 1970.
    Rehearing denied June 11, 1970.

      Alexander Saghin, of Aurora, for appellants.
    Dreyer, Foote and Streit, of Aurora, for appellees.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This appeal arises from an action for specific performance brought upon a two-count amended complaint on behalf of the plaintiffs against the defendants. Only count I of the amended complaint is before this Court.

The amended complaint alleges that, prior to 1964, the plaintiffs lived in the Country of Rumania; that at least once a year, from 1950 until 1964, the defendant-husband (hereinafter referred to as defendant) wrote letters to the plaintiffs promising them that if they immigrated to the United States of America he would support plaintiffs and give them all his property, reserving for himself only a right to live on said property; that on or about the 9th day of May, 1953, the defendant, prior to his present marriage, entered into a certain agreement whereby he was to retain all his property free from any claim or interest of the defendant-wife after their marriage ; that on May 26, 1953, the defendant made an offer to the plaintiffs that if they would forego their residence in Rumania and come to the United States of America, he would convey and deliver to the plaintiffs all his right, title and interest in and to assets owned by him, and later acquired by him prior to their arrival in the United States of America; that the offer is reflected by defendant’s handwritten letter in the Rumanian language, an English translation being attached to the amended complaint; that the defendant had made other offers in writing which were confiscated or destroyed by the Rumanian officials.

It was further alleged that as early as the year 1952, the plaintiffs, in reliance upon the offers, petitioned the appropriate Rumanian authorities for permission to im~ migrate to the United States of America, did come to the United States of America in June of 1964, and made a demand upon the defendant for a conveyance of the property ; that the plaintiffs, as a condition of their immigration to the United States of America, gave up all claim to a pension from the Rumanian government and other legal rights which they had; that the plaintiffs relied upon the offers of the defendant, but the defendant refused to convey the property; that the defendant had breached the contract in that he conveyed one parcel of real estate to a third party in July of 1965, revoked his prenuptial agreement on January 21, 1966, and refuses to transfer and set over to the plaintiffs all of his property as agreed.

The amended complaint, count I, continues that the defendant has thus breached the contract, that both defendants have collected income and profits from the property which is difficult to ascertain, that the plaintiffs have fully performed and have no adequate remedy at law. The count seeks an accounting of all profits and income, a decree of specific performance, and a judgment against the defendants for damages.

The defendants filed a motion to dismiss setting out a postnuptial agreement executed by them on January 21, 1966, revoking their prenuptial agreement of May 9,1953. The court denied this motion to dismiss.

Defendants then filed a motion for summary judgment and attached thereto excerpts from letters received by them from the plaintiffs. These excerpts were translations from the Rumanian to the English language, and were verified by the defendant. The court granted the motion for summary judgment and, thereafter, the plaintiffs filed a motion for rehearing, pro se. The motion for rehearing is supported by an unsworn ten-page, single-spaced, legal-length statement, with scant margins. The document purports to quote from other letters written by the plaintiffs to the defendants and contains arguments and observations as to the intentions of the writers. Eight days later, a similar document consisting of eight pages and entitled, “Addition to Plaintiffs’ Motion for a Rehearing, Retrial, Vacate,” was filed by the plaintiffs. The disposition of this motion is not ascertainable from the record or excerpts; however, on May 20, 1969, the plaintiffs filed a notice of appeal seeking to set aside the judgment of April 23,1969, allowing the defendants’ motion for summary judgment as to count I.

Count II, an action against the same parties for breach of an alleged contract to support the plaintiffs while they reside in this country, is held in abatement during the pendency of this appeal.

Plaintiffs complain that the court erred in granting the motion for summary judgment because sworn or certified copies of all papers, upon which the affiant relied, were not attached to the motion, nor did the affidavit attached show that the defendant, if sworn as a witness, would be competent to testify to the contents of the motion and affidavit.

The excerpts of letters attached to the motion for summary judgment purport to be letters from the plaintiffs to the defendants. This fact is not denied by the plaintiffs and, in their motion to reconsider, further portions of the letters are set out. The letter of the defendant, upon which the plaintiffs rely, is attached to their amended complaint as their exhibit “B.” The point raised is not that the letters are false, but that the copies and excerpts were not “sworn or certified copies and that the affidavit did not affirmatively show that if sworn as a witness he could competently testify thereto.”

Supreme Court Rule 191(a) does not demand that affidavits contain the phrase “that the affiant, if sworn as a witness, can testify competently thereto,” or fail. The rule is satisfied if it affirmatively appears from the whole of the documents that the affiant would be a competent witness if called. Ragen v. Wolfner, 43 Ill App2d 70, 76, 192 NE2d 560 (1963). Furthermore, in this case, the letter purporting to be the contract was pleaded by the plaintiffs. The excerpts of the plaintiffs’ letters attached to the motion for summary judgment are not denied. We are of the opinion that the rule set forth in the Ragen case has been met and therefore, this assignment of error is without merit.

Plaintiffs argue that the court decided a disputed issue of fact, i. e., whether or not an offer had been made. The purpose of summary judgment is to facilitate litigation and expedite trial procedure, Barkhausen v. Naugher, 395 Ill 562, 567, 70 NE2d 565 (1947). In considering such motion, the trial court searches the record, (People ex rel. Highsmith v. County of Jefferson, 87 Ill App2d 145, 150, 230 NE2d 480 (1967)) and must consider the record as a whole, Slone v. Morton, 39 Ill App2d 495, 498, 188 NE2d 493 (1963). If, upon examination of the record, the court finds a genuine triable issue of material fact, the motion should be denied, Barkhausen v. Naugher, supra; Applicolor, Inc. v. Surface Combustion Corp., 77 Ill App2d 260, 266, 222 NE2d 168 (1966). On the other hand, where there is an absence of a genuine triable issue of material fact, the court must then proceed to determine whether or not the movant is entitled to judgment as a matter of law, Applicolor, Inc. v. Surface Combustion Corp., supra.

In the instant case, we have read the communications between the parties, especially exhibit “B,” as translated, upon which the plaintiffs primarily rely for their cause of action. As a matter of law, we find no offer on the part of the defendant to dispossess himself and his wife of all of their property and give it to the plaintiffs upon their arrival in the United States of America. On the contrary, the letters show that the plaintiffs requested the défendant to bring their family to this country and, over the years, the defendant regularly sent money to the plaintiffs in Rumania, which money they frequently promised to repay. We are of the opinion, from our review of the record as a whole, that the trial court was correct in finding no genuine triable issue of material fact and that the defendants were entitled to a judgment on their motion as a matter of law.

Lastly, plaintiffs complain that the trial court refused them leave to file counteraffidavits. In our search of the record, we are unable to find this refusal except in the argument in plaintiffs’ brief. The record contains the motion to reconsider supported by the formidable documentation mentioned above, which was filed. It also contains an order entered on June 19, 1969, in which the court recites that, after hearing the arguments on the motion to vacate the summary judgment and allowing the filing of an amendment to the motion to vacate, it denies the motion to vacate the summary judgment.

It is the duty of the appellant to present an abstract or excerpts sufficient to set forth every error relied upon for reversal. Dempski v. Dempski, 27 Ill2d 69, 72, 187 NE2d 734 (1963). On appeal, all reasonable presumptions are in favor of the judgment of the trial court, and the party who prosecutes an appeal has the burden of overcoming these presumptions by affirmatively showing the errors charged. Husted v. Thompson-Hayward Chemical Co., 62 Ill App2d 287, 296, 210 NE2d 614 (1965). The record, as well as the excerpts, fail to show the court’s order which refused plaintiff’s leave to file counter-affidavits. This alleged error is not properly before us.

The judgment of the trial court is affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard Lee Dye, Defendant-Appellant.
    Gen. No. 11,197.
    Fourth District.
    May 18, 1970.
    Robert E. Williams, Assistant Public Defender of McLean County, of Bloomington, for appellant.
    Paul R. Welch, State’s Attorney of McLean County, of Bloomington, for appellee.
   SMITH, J.

The defendant appeals from a sentence of three to five years in the penitentiary on a plea of guilty to the crime of forgery. The sole basis for this appeal is that the sentence imposed by the trial court is too severe, is not warranted by the evidence presented, by the nature of the offense, or by the defendant’s background. The appeal is without merit and the judgment of the trial court is affirmed.

There was no application for probation and the evidence on the hearing in aggravation and mitigation was undisputed. The record shows that the State’s Attorney stated to the court that he had submitted to defense counsel in advance of the hearing the evidence that he would submit on the hearing, that they had conferred and he would tender the stipulation, and if defense counsel was agreeable he might stipulate to it. The court said that he wanted to know whether this was agreeable to the defendant as well. The attorney answered “yes” and the court then asked “will the defendant so indicate.” The defendant said “yes sir.” Offered the opportunity to produce additional evidence, the defendant declined. The stipulation shows that on January 27, 1966, the defendant was found guilty of forgery and admitted to probation, and as one of its terms was required to serve six months in Vandalia; that he did serve this term and was subsequently released; that his probation period continued; and on December 16, 1966, he was arrested on several traffic charges consisting of a stop sign violation, speeding, failure to reduce speed, and illegal transportation of liquor. Those charges were used in a petition to revoke probation. Probation was revoked and the defendant was sentenced to a term of not less than one nor more than two years on the original forgery. He was sent to Menard, Illinois, and subsequently transferred to Pontiac and released on September 18, 1968. The present conviction is based on a forgery dated October 21, 1968. The State’s Attorney then offered for the record five more checks totaling some $200 written by him in March, 1969, while he was out on bond on this charge.

They were offered by the State’s Attorney for the limited purpose of indicating the conduct of the defendant while out on bond. The court stated that the defendant could indicate whether or not they were his. The defendant answered “I wrote those checks, Your Honor.” The court: “Then they are forgeries in which you signed the signatures of other people, is that right?” Defendant: “Yes, sir.” The State’s Attorney recommended that the defendant should receive a three to six-year sentence. The defense attorney addressed his remarks entirely to the minimum and stated that the court should consider a lower minimum than the three years. He suggested that a lower minimum would permit an earlier parole than if he were given a three year sentence and that this would benefit not only the defendant, but society as a whole. The defendant was twenty-one years of age at the time of the sentence and was married. The sentence imposed is within the limits fixed by the statute of one to fourteen years. Ill Rev Stats 1967, c 38, § 17-3 (d).

The defendant cites People v. Riley, 376 Ill 364, 33 NE2d 872 and People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498. Both of these cases are factually so totally different from the record which we review that they are neither persuasive nor controlling. In the instant case, the defendant was admitted to probation, violated the terms of that probation and was sentenced to serve one to two years in the penitentiary for the crime of forgery. Within thirty-three days after he was released from the penitentiary on the first charge, he forged the checks involved here. Patently he accomplished no rehabilitation either on probation or in the penitentiary on the first time around. While he was out on bond in this case, he forged five or six more checks and these facts were stipulated into the record and the defendant admitted the checks were forgeries. The clear mandate of the statute, however, is that the court shall consider evidence as to the “moral character” and criminal record of the defendant and may consider such evidence in aggravation or mitigation of the offense. The defendant’s criminal record was the one conviction which was in evidence. The other evidence in our judgment related to the moral character of the defendant and to the time required for his rehabilitation. It is surely not arguable that one who will forge documents with the intent to defraud or with the intention to deceive within thirty-three days after serving a penitentiary sentence for a like charge is ready to return to society nor that society will be best served by his immediate return to it. Be that as it may, we cannot say that the sentence here is cruel, unusual or excessive punishment. It is clear that this defendant has learned nothing from probation. It is clear that he has learned nothing from more than a year and a half in the penitentiary and we cannot say it is an abuse of discretion to believe that it requires more time than the minimum in custody to merit his return to society. The defendant stipulated to the facts; he offered no excuse for his activity, and he offered no evidence that would indicate that he had rehabilitated. The burden of presenting mitigating circumstances in the record falls upon the defendant and the responsibility lies with him to make a substantial showing in order to justify a reduction of sentence on review. People v. Nelson, 41 Ill2d 364, 243 NE2d 225. There is no such showing here. In Nelson, the defendant, while in jail, called officers foul names and disobeyed orders to the extent that he was transferred to solitary confinement in the Springfield City Jail for ten days and that evidence was considered admissible to determine the possibilities of rehabilitation. In our judgment the trial court has followed the guidelines laid down in Nelson in the imposition of sentence and our course is controlled by People v. Taylor, 33 Ill2d 417, 211 NE2d 673. There is simply no justification factually or arguendo for us to intervene. Being devoid of any justification for reducing the sentence, the judgment of the trial court is affirmed.

Affirmed.

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


text:
    H. Lee Hopwood, Plaintiff-Appellant, v. Patricia E. Hopwood, Defendant-Appellee, Consolidated With H. Lee Hopwood, Plaintiff-Appellant, v. Patricia E. Hopwood, a/k/a Patricia E. Kern, Defendant-Appellee.
    Gen. Nos. 11,089-11,147. (Consolidated.) (Abstract of Decision.)
    Fourth District.
    May 21, 1970.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank D. Lessen, Defendant-Appellant.
    Gen. No. 54,065. (Abstract of Decision.)
    First District, Fourth Division.
    March 25, 1970.
    O’Keefe, O’Brien, Hanson & Ashenden, of Chicago (James H. O’Brien and Harry G. Fins, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony Montemurro, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE DRUCKER. Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    John R. Price, Plaintiff-Appellee, v. The Civil Service Board of the Metropolitan Sanitary District of Greater Chicago, and Allen S. Lavin, Acting Director of Personnel of the Metropolitan Sanitary District of Greater Chicago, Defendants-Appellants.
    Gen. No. 53,079.
    First District, Fourth Division.
    March 25, 1970.
    Allen S. Lavin and Dolphy T. McLaughlin, of Chicago (Fred F. Herzog, of counsel), for appellants.

      Richard F. McPartlin, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendants appeal from an order of the Circuit Court reversing the defendant Board’s discharge of plaintiff from his employment with the Sanitary District.

Plaintiff had held the position of Supervisor of Employee Selection, the examination for which had been advertised by the Board’s announcement which read, in part, as follows:

Qualifications:
Nine years of progressively responsible experience in a technical and supervisory capacity in personnel administration including substantial experience and/or training in examination and selection procedures; and graduation from a four-year accredited college course majoring in personnel administration, industrial psychology or related field. Full-time graduate study in pertinent field may be substituted for experience on the basis of one school year of study for one and one-half years of experience. Any equivalent combination of training and experience will be considered.

Plaintiff, who had been working for the District on a contract basis for over three months, filed his application for the position on May 25, 1964. The application, which was under oath, contained the following significant portion relating to plaintiff’s education qualifications:

One feature of the application form which bears on this case in a rather fundamental way, is the part at the top marked “Important,” which calls the applicant’s attention to the fact that the information supplied “may be rated as part of your examination and thus effect your final grade.”

In addition to the education data set forth above, the application also contained information as to plaintiff’s previous employment with three different employers covering approximately twelve years. Plaintiff was permitted to take the examination, which he passed, and, being first on the eligible list, he was appointed Supervisor of Employee Selection on August 7,1964.

The instant action arose on November 17, 1966, when Allen Lavin, Acting Director of Personnel of the District, filed charges with the Board alleging violation by plaintiff of the following Rules of the District’s Director of Personnel (adopted pursuant to the authority of Ill Rev Stats 1963, c 42, § 323.5):

11.041—Causes for Discharge: An employee holding a permanent appointment may be discharged from the service if he is found by the Civil Service Board to:
(4) Have violated any of the provisions of the Statute governing the classified service of the District, any official regulation of the Board of Trustees, or of the Civil Service Board, or to have failed to obey any proper order or direction made or given by any superior officer of the District.
(6) Have made a false statement of a material fact in an application for employment, or to have violated any provisions of these rules governing examinations or to have been guilty of any conduct in the course of an examination which tends to bring the District service into disrepute.
(9) Have been guilty of any conduct which tends to render his continued employment detrimental to the discipline, efficiency, or reputation of the District’s service.

Hearings were held before the Board on November 22, 1966, and other dates at which plaintiff appeared in person and was represented by counsel.

Lavin testified in support of the charges he had filed. He said that on about October 28, 1966, he, a Mr. Forbes McCann and plaintiff were discussing the different job descriptions in the personnel department. Plaintiff was called in because McCann wanted to be sure of the nature of plaintiff’s training. Lavin asked plaintiff how much time he had completed at Northwestern, to which plaintiff replied, “Not what it says on the application.” Lavin referred to plaintiff’s application and asked plaintiff about it. Plaintiff then said that the three years or 75% would have been what he had completed if he had gone through the four-year day school, but that his three years were at night, which was a six-year course.

Lavin testified further that he then asked plaintiff several questions to determine how many hours of college credit he had completed. Plaintiff replied that he had not completed 50% of the curriculum, and narrowed the figure for hours of credit to “somewhere between forty and fifty,” mentioning two or three subjects he had taken. The following workday the witness confronted plaintiff with information he had received from Northwestern, which was that plaintiff had completed only a total of six semester hours—two each in three courses. Lavin stated that there was a discrepancy (which he did not then discuss with plaintiff), since plaintiff had indicated on the application that he had completed 75% of his college curriculum, and had circled the highest year completed as the third. (The Northwestern transcript received in evidence as an exhibit showed completion of the six semester hours and indicated that 120 semester hours were required for graduation.)

Lavin testified that, at the time plaintiff submitted his application to the personnel department, he (Lavin) had no direct capacity with the department, and had not discussed the application with Mr. Kopec, then Director of Personnel. He did not know whether Mr. Kopec had qualified plaintiff to take the examination by virtue of his training and experience, nor did he know what the qualifications were of the other persons who applied for the same position.

Lavin further testified that plaintiff had been given varied assignments while working in the personnel department, including the screening of applicants for civil service examinations and for employment at the District.

Plaintiff testified that in the first part of May, 1964, he had had a conversation with Mr. Kopec, then the Director of Personnel, during which he discussed his education, explaining that he had gone to night school for three semesters. He also mentioned his employment background, and Kopec advised him to file for the position, stating, “With your background and your experience, you should have no problem.” He never told Kopec that he had completed or graduated from a four-year college course. It was after this conversation that he applied for the position.

Plaintiff detailed his college education, which conformed with Lavin’s earlier testimony as taken from the Northwestern transcript. He admitted that in terms of calendar time spent, he had attended Northwestern for only one year and three months. He stated that the notation on his application of three years of college completed referred to three semester years, each semester being one year. He didn’t know what a semester hour meant. Plaintiff also testified that what he though was meant by the percent completed column, which he filled in as “75%,” was that he had taken four courses, three of which he had finished. He had no intention of obtaining credit hours for the purpose of going for a degree. He didn’t know how many credit hours he had; therefore, he didn’t put any down on the application. He further testified as to his duties while in the employ of the District.

On October 28, 1966, he had a conversation with Mr. McCann and Mr. Lavin and was asked how far he had gone in school. He told them that he didn’t remember, and Mr. Lavin “kept throwing questions back and forth.” Again, on October 31, 1966, he met with Mr. Lavin, who told him he would be given a chance to resign or charges would be brought against him on account of his having lied on the application as to his academic background. He then cleaned out his desk and told Mr. Lavin to “go ahead and file charges.”

After the hearings, the Board found that plaintiff had “made false statements of material facts in his application for employment . . . [which] related to his educational background necessary to meet the minimum requirements set out in the specifications for the position of ‘Supervisor of Employee Selection.’ ” The Board found plaintiff guilty of violating Rules 11.041(4), (6) and (9) as above set out, and ordered him discharged as of December 1,1966.

The Board’s order of discharge was reversed by the Circuit Court and it is from that judgment that this appeal has been taken. Defendant Board contends that: (1) the false statements in plaintiff’s application are repugnant to basic morality as well as violative of the rules of the Director of Personnel; and (2) the Board’s decision is not against the manifest weight of the evidence, since the record shows cause for plaintiff’s discharge. Plaintiff, in his brief, argues chiefly that defendant’s first contention is irrelevant, since plaintiff made full disclosure of his educational background to the Director of Personnel prior to taking the examination, and qualified for the position under the “equivalency provision” as stated in the announcement quoted above (citing McCann v. Civil Service Board of Metropolitan Sanitary Dist. of Greater Chicago, 105 Ill App2d 317, 245 NE2d 783). Plaintiff also asserts that the Board’s finding does not state precisely what the “false statement of material facts” was, and that the evidence did not establish that the “alleged misstatement was material and necessary to meet the minimum educational requirements.”

It can be seen that plaintiff’s responses do not make a clear issue of the points raised by defendant, and, in our opinion, plaintiff’s primary contention is largely irrelevant.

We have no doubt that Rule 11.041(6), providing for discharge of an employee who has made a false statement of material fact in his application, is a reasonable rule and within the rule-making authority of the Director. Ill Rev Stats 1967, c 42, § 323.5; People ex rel. Jendrick v. Allman, 396 Ill 35, 40, 71 NE2d 44; People ex rel. Krich v. Hurley, 16 Ill App2d 505, 506, 149 NE2d 109; People ex rel. Heffernan v. Smykal, 13 Ill App2d 342, 347-348, 142 NE2d 133. We are also of the opinion that this rule has extraordinary significance in the instant case inasmuch as the position applied for— that of Supervisor of Employee Selection—involves recruitment and selection for positions in the District’s Classified Service.

Plaintiff seeks to give great weight to his own testimony concerning a conversation with Mr. Kopec prior to making the application. (Mr. Kopec did not testify.) This argument is wide of the mark. Assuming, as we do, that the conversation took place, plaintiff told him either that he had completed his third year at Northwestern or he told him the truth about having completed only six semester hours of the 120 required for graduation. Under the first hypothesis, Mr. Kopec’s telling plaintiff to apply for the position could avail plaintiff nothing at this time except to show that he had made false statements concerning his education both orally to the Director,, and in writing under oath, thus compounding rather than justifying the untruths in his application. If, on the other hand, he had, as he testified, explained to Mr. Kopec the true extent of his Northwestern education, the advice to proceed with the application could in no wise be considered an authorization to make a gross misstatement under oath as to his education qualifications.

We view plaintiff’s argument about the “equivalency provision” in much the same light. The question, as we understand it, is not whether it can now be seen that defendant’s experience, together with his actual education, would have been enough to satisfy requirements (we do not decide this “equivalency” issue), but whether the proof before the Board showed that plaintiff had made a false statement of material fact. We believe that the documentary evidence (the application itself and the Northwestern transcript) did establish this fact conclusively, and that the Circuit Court’s conclusion to the contrary is not supported by the record. We refer, also, to Lavin’s testimony that when he asked plaintiff what his education at Northwestern had been, the latter replied, “Not what it says on the application,” but that he did have “somewhere between forty and fifty” hours of credit. While this testimony was inferentially denied by plaintiff, it is not the functian of the Circuit Court to weigh the evidence in a proceeding under the Administrative Review Act. Ill Rev Stats 1963, c 110, § 274. A reversal of the Board’s conclusion is permissible only when contrary to the manifest weight of the evidence. Daley v. Jack’s Tivoli Liquor Lounge, 118 Ill App2d 264, 254 NE2d 814, 820; and Nechi v. Daley, 40 Ill App2d 326, 335-338, 188 NE2d 243.

While not necessary to our conclusion, we also believe that plaintiff’s violation of Paragraph (6) of Rule 11.-041 constituted, in turn, violations of Paragraphs (4) and (9), all of which are quoted above at the beginning of this opinion.

The judgment of the Circuit Court is reversed and the cause is remanded with direction to affirm the order of the Board.

Reversed and remanded with direction.

STAMOS, P. J. and DRUCKER, J., concur.


author: MR. PRESIDING JUSTICE STAMOS

text:
    Paul Kujala, Plaintiff-Appellant, v. Yolanda Jackson, d/b/a Juke Box Lounge; Foremost Liquor Stores, Inc., a Corporation, and Harold McCoy, Defendants Appellees.
    Gen. No. 53,414.
    First District, Fourth Division.
    March 25, 1970.

      Arthur S. Gomberg and Hickey, Gustafson & Peterson, of Chicago (Samuel Nineberg, of counsel), for appellant.
    Alvin E. Rosenbloom, Mullin, Zun & Devine, of Chicago (Alvin E. Rosenbloom and Gerald B. Mullin, of counsel), for appellees.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Plaintiff appeals from a directed verdict in favor of defendants in a dramshop action. The trial court barred a plaintiff’s witness from testifying because his name was not furnished in response to interrogatories. This action by the court deprived plaintiff of evidence that allegedly would establish a sale or gift of intoxicating liquor as required in an action predicated upon the Liquor Control Act also referred to as the Dram Shop Act, Ill Rev Stats, c 43, § 135 (1961). The lack of this evidence is said to have resulted in a directed verdict in favor of defendants from which plaintiff appeals.

On June 9, 1962, plaintiff was allegedly assaulted by defendant Harold McCoy and sustained a fractured jaw that necessitated extensive medical treatment. Defendant dramshops, through their investigator, took a court reporter’s statement from Ted Skelton, a friend of McCoy’s, on December 10, 1962. Skelton related therein that he was in the company of McCoy on June 9, 1962, that McCoy was not intoxicated, that plaintiff instigated the altercation by attacking McCoy, and that he had no knowledge of McCoy making any purchases from defendant dramshops.

Plaintiff filed his complaint on February 14, 1963, and answered interrogatories on August 22, 1963. An examination of the interrogatories and answers thereto reveals that plaintiff furnished the name of Eugene Griffin, address unknown, as a witness having knowledge of McCoy’s liquor purchases and intoxication on the day of the incident. However, Ted Skelton’s name was not mentioned. The answer also stated that the matter was still under investigation. On July 24, 1964, defendants took plaintiff’s deposition. When he was asked whether he knew of Ted Skelton, he answered in the negative.

On January 26, 1968, plaintiff took a written statement from Ted Skelton wherein his recitals regarding the altercation between plaintiff and McCoy were diametrically opposite to what he had related to defendant’s investigator on December 10, 1962. In this later statement he related that he was with McCoy the day of the altercation and McCoy had made purchases of alcoholic liquor from defendant dramshops and while intoxicated, he assaulted and injured plaintiff.

It was established that on or about February 11, 1968, plaintiff had furnished defendants a copy of Skelton’s statement of January 26, 1968. The case went to trial on February 21, 1968 and upon defendant’s motian the trial court barred Skelton from testifying and subsequently directed a verdict for defendants.

OPINION

Plaintiff contends that the trial court erred in barring Skelton’s testimony because:

(1) The plaintiff had no knowledge of the existence of Skelton at the time of answering the interrogatories or giving the deposition.
(2) The plaintiff had no continuing duty to supplement the answer to interrogatories.
(3) The defendants were not taken by surprise, since they were informed of Skelton’s written statement ten days before trial.

The appropriate sanction, if any, to be applied by the trial court for failure to list a witness in response to an interrogatory is within the discretion of the court (Ferraro v. Augustine, 45 Ill App2d 295, 196 NE2d 16 (1964)).

In Buckler v. Sinclair Refining Co., 68 Ill App2d 283, 216 NE2d 14 (1966), the court stated that the criteria to be weighed in determining the appropriateness of the sanction are:

“1. The surprise to the opposing party.
“2. The good faith of the party calling the witness to notify the opposing party.
“3. Equal opportunity and access of the opposing party to interview or depose such witness prior to trial.
“4. Prejudice resulting to the opposing party from such testimony.”

In reviewing the facts of the instant case in light of Buckler, supra, we find that the trial court abused its discretion in barring Skelton from testifying.

The facts fail to disclose surprise to the defendant by the presentation of Skelton as a witness. Defendants contend that the apparent change of position of Skelton without adequate notice justifies the sanction employed. Plaintiff, however, informed defendants of Skelton’s written statement ten days before trial, but defendants elected to rely on Skelton’s statement of December 10, 1962. Therefore, the presentation of Skelton at trial as a witness did not constitute surprise. There also has been no showing of lack of good faith on the part of plaintiff in answering the interrogatories or in the deposition. Defendants contend that plaintiff knowingly failed to disclose the existence of Skelton in answering the interrogatories and falsely denied any knowledge of Skelton in the deposition. Defendants reason that since plaintiff filed suit against defendant dramshops, the plaintiff must have had knowledge of McCoy’s activities on the day in question. They further reason that since Skelton was allegedly the only other person who was in McCoy’s company during the day in question for the entire span of time, plaintiff had obtained the necessary information for filing the complaint from Skelton.

Defendant’s position, however, is based on a fallacious supposition that the requisite information could come only from Skelton. Plaintiff had stated that one Eugene Griffin had knowledge of the occurrences prior to the altercation on the day in question. While Griffin was not offered as a witness, it is not unreasonable to hypothesize that he could have furnished plaintiff with the information at the time.

Defendants also had adequate opportunity and accessibility to interview Skelton before trial after learning of his change of position, but apparently failed to do so.

There is also a failure of showing any prejudice accruing to the defense of the cause. While Skelton’s testimony would be damaging to defendant’s position, the ten-day notice given defendants provided ample opportunity to prepare a defense to the cause in light of the written statement of January 26, 1968, if any were to be had. In addition, defendants could have used Skelton’s prior statements to impeach his testimony. Therefore, we fail to perceive any substantial prejudice accruing to defendants.

We also concur in plaintiff’s observation that he had no continuing duty to supplement the interrogatories; however, since plaintiff did in fact inform defendants of Skelton’s testimony before trial, we believe the question to be moot.

Since the court erred in barring Skelton as a witness for plaintiff, the judgment is reversed and the cause is remanded for a new trial.

Reversed and remanded.

DRUCKER and ENGLISH, JJ., concur.


text:
    Joseph J. Flanagan, Plaintiff-Appellee, v. Rosemarie T. Flanagan, n/k/a Rosemarie T. Novak, Defendant-Appellant.
    Gen. No. 53,429.
    First District, Fourth Division.
    March 25, 1970.

      Theodore R. Sherwin, of Chicago (Sherwin & Sherwin, of counsel), for appellant.

      Davis, Boyden, Jones & Baer, of Chicago (Joseph Winslow Baer, Phillip M. Citrin, and Rodney N. Johnson, of counsel), for appellee.
   MR. PRESIDING JUSTICE STAMOS

delivered the opinion of the court.

Defendant appeals from an order modifying the visitation provisions of a divorce decree.

The parties were divorced on April 29, 1959, in the State of Florida and defendant (plaintiff in the divorce proceeding) was awarded custody of their two sons, now age 12 and 13, subject to plaintiff’s right of visitation at all reasonable times and places.

The parties remarried, plaintiff and his wife reside in New York City, and defendant and her husband live with the minor children in Skokie, Illinois.

On August 25, 1967, plaintiff filed a petition in the Circuit Court of Cook County and registered the foreign judgment of divorce. Plaintiff also requested the court to modify the visitation provisions of the decree so that the minor children could visit plaintiff in New York City, and plaintiff also requested the court to direct defendant to show cause why she should not be held in contempt for failure to afford plaintiff rights of visitation.

The record reflects that the proceedings consisted primarily of the statements of both counsel and brief testimony by the parties. Counsel apparently adopted each other’s statement as stipulations of fact, except when infrequently an objection was interposed.

The issue before this court is whether the trial court abused its discretion in ordering that plaintiff have the right to visit with the children at his residence in New York City for 3 weeks each summer, 5 days during each alternate Christmas vacation, and for 5 days during alternate spring vacation.

Plaintiff is employed as a roofer and resides with his wife in New York City, where they occupy a 314-room apartment with sleeping facilities for the children.

In 1957 plaintiff was intoxicated and was arrested for fighting. In 1958 his license was suspended for one year for driving a motor vehicle while intoxicated.

Plaintiff visited with the children for 4 months in 1959; there is no evidence to show whether he visited with them in 1960, but plaintiff did not visit with them in 1961. Plaintiff visited with them in 1962 and 1963, and in 1964 he visited with them in Florida and at his home in New York City. In 1965 the children again visited with plaintiff in New York City for one month and their maternal grandmother, a resident of New York City, participated in caring for them during this visit.

Defendant remarried in 1966 and her husband sought plaintiff’s consent to adopt the children. Plaintiff’s efforts to exercise his visitation rights in 1966 were denied him by defendant and in 1967 the parties appeared in court and the Chancellor granted plaintiff 4 days’ visitation with the children and admonished the parties to amicably resolve the problems of plaintiff’s visitation. In 1968 the bickering between the parties regarding visitation persisted and plaintiff then initiated the instant litigation.

OPINION

Defendant contends that plaintiff is practically a stranger to the children and his visits were not frequent enough to demonstrate any fondness, love or affection. This contention is not supported by the record. The chronology of plaintiff’s visits do not evince conduct that could be construed as abandonment or lack of interest as is found in Huber v. Huber, 26 Ill App2d 207, 167 NE2d 431 (1960) relied upon by defendant.

The two instances of plaintiff’s difficulties with the police as a result of his drinking both took place before the parties’ divorce and almost 9 years prior to the instant proceedings. There is no evidence of any consequence that the children will be adversely affected by visiting their father nor any evidence that the facilities are not suitable for their brief visits.

Defendant also complains that the trial court should have had the children in court to testify or otherwise manifest their views regarding the visitation modifications. The record reflects that at the close of the hearing the court in discussing the evidence revealed the court’s inclination to rule in favor of plaintiff, but also added that the children were not produced in court. Defendant then offered to have the children present the following day, but the court observed it did not need the children at the instant proceeding, but inferred that if any disputes occur or there was an inability to adhere to visitation rights the court would require their presence.

In this court defendant concedes that plaintiff may visit the children but seeks to have the visitations limited to Cook County, Illinois. We presume, therefore, that defendant does not question plaintiff’s fitness or right to exercise his visitation privileges or that the children are adverse to visiting with him, but that the principal argument is that the visits not occur outside this jurisdiction.

Defendant’s belated offer to produce the children was precipitated by the court’s comments which indicated a favorable order for plaintiff. Defendant made no offer of proof or any statement about the children’s attitude regarding visits with plaintiff.

The presence and participation of children in litigation of this nature can be and generally is a very traumatic experience for them and the litigants. Their participation is not to be encouraged nor permitted if the Chancellor believes he has sufficient evidence upon which to make a judgment that is in their best interest. We find that the court did not abuse its discretion under the facts and circumstances in this proceeding.

The trial judge has broad discretion in settling visitation rights. In Rodely v. Rodely, 28 Ill2d 347, 192 NE2d 347 (1963), at page 350 the court said:

“The matters of child custody and visitation privileges rest largely in the broad discretion of the trial court, and it has been repeatedly stated that its determinations with respect thereto should not be disturbed on appeal unless a manifest injustice has been done.”

In Szczawinski v. Szczawinski, 37 Ill App2d 350, 185 NE2d 375 (1962), at page 353 the court said:

“It is the policy of courts of review to recognize a broad discretion in a chancellor called upon to award custody of children, and perhaps even greater discretion is allowed in altering visitation privileges . . .”

The court in Szczawinski, supra, also noted that visitation rights have been a continuous source of dispute between divorced parents.

In the case at bar it appears that the parties did not experience any disputes regarding visitation until defendant remarried.

We find that the trial court properly exercised its discretion in modifying the visitation provisions of the divorce decree and we affirm the judgment.

We note that defendant’s pleadings asserted an affirmative defense which was not denied, and alleged that plaintiff was in arrears in support payments, and defendant sought a rule to show cause why plaintiff should not be held in contempt for a wilful failure to comply. However, this aspect of the pleadings was not alluded to in the court below and thus was waived and cannot now be presented as an additional argument to charge the trial court with an abuse of discretion.

The record does not show what action, if any, the trial court pursued in regard to this allegation of an arrearage in support payments.

Judgment affirmed.

ENGLISH and DRUCKER, JJ., concur.


author: MR. JUSTICE DRUCKER

text:
    Diane Scalfaro, Plaintiff-Appellant, v. Anthony J. Scalfaro, Defendant-Appellee.
    Gen. No. 53,698.
    First District, Fourth Division.
    March 25, 1970.

      Spangler & Greenberg, of Chicago (Erwin H. Greenberg, of counsel), for appellant.
    Anthony P. Pacelli, of Chicago (Bernard Kaufman and Harry G. Fins, of counsel), for appellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Plaintiff appeals from an order modifying and reducing the original alimony award from $50 per week to $25 per week and the support of the minor children from $75 per week to $50 per week. On appeal plaintiff contends that a divorce decree for alimony or child support can only be modified if there is a material change occurring after the entry of the decree and that a decree for divorce entered by a court having jurisdiction is conclusive for all purposes and cannot be collaterally attacked.

The divorce decree entered on July 7, 1966, stated that defendant was earning in excess of $7,000 per year, but that the exact amount was not readily ascertainable. The decree ordered defendant to pay $50 per week alimony and $75 per week child support for three minor children and to pay the accumulated arrearage for temporary alimony and support of $2,200.

On February 23, 1967, plaintiff filed a petition alleging that defendant only made one payment on the $2,200 arrearage and that he had failed to make the last five weekly alimony and support payments. Plaintiff prayed that the court issue a rule to show cause why defendant should not be held in contempt of court for failure to comply with the decree for divorce.

Defendant’s answer admitted the allegation that he only made one monthly payment on the arrearage but further stated that his income was insufficient to make further payments on the arrearage. The answer denied the allegation that he failed to pay the last five alimony and support payments. Defendant’s answer contained a counterpetition which alleged, in part, that his net income of $177 per week was insufficient to pay the $125 alimony and support payments and that plaintiff was gainfully employed earning a substantial amount of money, whereas he could not support himself on the remaining income. Defendant prayed that the court modify the divorce decree and reduce his alimony and child support payments in accordance with his income.

A preliminary hearing on plaintiff’s petition and defendant’s counterpetition was held on March 17, 1967. The court ordered that alimony payments be reduced from $50 per week to $25 per week. No change was made in the child support payments. The order further ordered that the hearing on the petition and defendant’s answer to petition and counterpetition be set for further hearing.

Subsequently, on August 13, 1968, a further hearing was held. The trial judge indicated his reasons for permitting the hearing:

... I feel that there is sufficient ambiguity in the decree that would warrant a Court at this time delving into what actually this man earns.
The ambiguity was in this respect—I think I spelled it out last time—when the order was entered by the Court, first of all, we were experiencing some difficulty in determining what this man actually earned. This decree was awarded more or less by agreement.
It seemed at that time [July 17, 1966] that this man was operating several restaurants. It looked very hopeful that he might be able to meet the kind of a decree which the Court entered and was with the idea of certainly giving the children every benefit—every benefit of every hope that might be achieved. So I signed this decree.
If we find now, according to the petitioner, that he is unable to meet this decree, he comes into this Court now, asking this Court for a hearing on this man’s assets.
I feel in light of the circumstances and in light of the decree we should give this man an opportunity to come into a court of equity and open his books, open his records, and to delve into his finances, financial setup, and to find out once and for all what this man is earning so that this Court can arrive at a realistic and practical order that the defendant can live on and live with.
That is the basis for why we are having this hearing at this time. That is it.

At the hearing the defendant testified that his gross income for 1965 was $6,300 and that his net income for 1966 and 1967 was $8,309.73 and $8,095.34, respectively. He estimated that his net income for 1968 would be $8,000. His net weekly pay for 1968 averaged $160. On cross-examination he testified that his financial situation since July 1966 had become worse since he had more bills to pay, including a $578 doctor bill for his son, on which he still owes $250. However, his income remained basically the same between 1966 and 1968. Under the original decree defendant was ordered to pay $125 a week for alimony and support and $12.50 a week on the arrearage or a total of $137.50 per week on an income “in excess of $7,000 per year [$135 per week].”

When the divorce decree was entered on July 7, 1966, it was based upon conditions existing in 1965. During that year there was another restaurant that defendant had been drawing on called the Jackson Apple Basket. These draws totalling $4,740 were not income to him. He initially "put up” $5,000 to start the restaurant and therefore he had a $5,000 credit due him in the form of draws. Upon questioning by the court the following colloquy occurred:

THE COURT: “At that time when we entered the order of $125.00, why were you prepared to enter into that kind of a situation?”
THE WITNESS: “I had no choice as far as I was concerned.”
THE COURT: “Were you taking money from this other restaurant ?”
MR. GREENBERG: “Judge, if you will forgive me, I am objecting to that. I think the reason why is immaterial.”
THE COURT: “Just a minute, because if a man cannot meet the situation that he is anticipating, I have to inquire.”
THE COURT: “As I have indicated on several occasions now how this order came to be entered into, we are now confronted with a situation where the order that was hoped to be met cannot be met, based upon the testimony we now have before us.
“That restaur? r c that you are talking about, that Apple what?”
THE WITNESS: “ Jackson-Apple Basket.”
THE COURT: “What about the other one ?”
THE WITNESS: “The year before that, the Lawrencewood-Apple Basket went under; and during this time, I was anticipating the RandhurstApple Basket, of maintaining some being with it or some income from there, which her father and her brother and herself have taken over.
“So I lost everything. So the only thing I have left is this restaurant which I have fifty-two percent of and which is in debt up to its elbows, which I am struggling to survive.”
THE COURT: “The Court is going to enter this order based upon this man’s earnings. I am going to predicate this order now definitely—
“This Court is of the opinion that this man has an income of $160.00 a week; and based upon that, this Court is going to enter an order of $50.00 a week child support and $25.00 a week alimony. That is going to be the order.
“Is he in arrears ?”
MR. GREENBERG: “He is in arrears $1,800.”
THE COURT: “I suggest that you add $10.00 a week for the arrearage. That is going to be the order. I am trying to work out an order here that is livable.”

Plaintiff contends that a divorce decree for alimony or child support can only be modified if there is a material change in the financial condition of the petitioning party occurring after the entry of the decree. Plaintiff argues that the evidence produced by defendant did not establish a material change in his financial condition since the entry of the original divorce decree.

Section 19 of the Divorce Act provides that “the court may, on application, from time to time, make such alterations in the allowance of alimony and maintenance and the care, education, custody and support of the children as shall appear reasonable and proper.” (Ill Rev Stats 1967, c 40, § 19.) The decree of July 7, 1966, was not based on income but on the optimism that defendant’s restaurant business would grow and produce more income. At the August 13, 1968, hearing to modify this decree the court found that the defendant could not meet the original payments as the “situation” that was anticipated in July 1966 did not materialize.

The modification of provisions for the payment of alimony and child support rests in the sound discretion of the court and a reviewing court will not interfere with the exercise of such discretion in the absence of its abuse. See ILP, Divorce, § 149. In the instant case the trial court determined that the financial condition of the defendant had sufficiently changed since the entry of the divorce decree to warrant its modification and we find no abuse of discretion by the trial court in its modification order.

Plaintiff also contends that a decree for divorce entered by a court having jurisdiction is conclusive for all purposes and cannot be collaterally attacked as to any facts and circumstances existing prior to its entry. While the decree is conclusive and res judicata as to all facts and circumstances existing prior to its entry, the court has the continuing power, for causes accruing subsequent to its entry, to modify the provisions of the decree to meet the changed conditions of the parties. Maginnis v. Maginnis, 323 Ill 113, 153 NE 654, and Igney v. Igney, 303 Ill App 563, 25 NE2d 608.

The order reducing defendant’s alimony and child support payments is affirmed.

Affirmed.

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


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Bullock, Defendant-Appellant.
    Gen. No. 53,717.
    First District, Fourth Division.
    March 25, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This is an appeal from a conviction for theft of an automobile. Defendant was admitted to three years probation on condition that the first year be served in the House of Correction in Chicago. The only issue is whether defendant was proven guilty beyond a reasonable doubt.

April 11, 1968, at approximately 9:50 p. m., two squads of Chicago policemen received a call that an automobile was being stripped in a vacant lot at 4510 South Cottage Grove, Chicago. Officer John J. Finnegan, with his partner driving, proceeded to the scene and entered a north and south alley at East 45th Street which was the west edge of the vacant lot. Finnegan saw two men two or three feet from a Chevrolet automobile. The men ran easterly with Finnegan in pursuit.

Officer Keith Grabowski, whose squad car was parked across the street when the call was received, entered the vacant lot from the east. He saw three men running toward him, away from the west side of the lot. Grabowski and his partner apprehended two of the three men. They were the defendant and one George Smith. They were searched by Finnegan. On George Smith were found lugs which belonged to the Chevrolet. Grabowski inspected the car and found it was a 1964 Chevrolet Bel Air. The rear end was jacked up, three tires were on the ground beside it; and the fourth tire was still on the car with its lugs loosened. A check revealed that the Chevrolet belonged to Mr. Arthur Davis, 4345 South Park Avenue, Chicago, who the day before, parked, locked and left it in front of his house. Mr. Davis had not given anyone authority to move his car.

By indictment, defendant and George Smith were charged with theft in that they knowingly obtained and exerted unauthorized control over Mr. Davis’ automobile, intending to deprive him permanently of the use and benefit of his property. Prior to trial, George Smith pleaded guilty. The State then asked, and the court granted, leave to amend the indictment to allege that defendant on April 11, 1968 “ [e] xerted unauthorized control over . . .” the automobile found in the vacant lot.

Mr. Davis, Officers Grabowski and Finnegan testified for the prosecution. Davis described how he left his car parked in front of his home around 5:00 p. m. April 10, 1968. Grabowski and Finnegan testified and without objection described the call they received that an automobile was being stripped in the vacant lot. Finnegan said that after he saw the two men two or three feet from the Chevrolet he kept them in view and followed them until they were arrested by Grabowski and his partner.

Defendant was the only defense witness. He testified that his home was at 4522 Cottage Grove, three doors south of the vacant lot where he was arrested. Defendant explained that at about 8:00 p. m. on the night in question he went to the lot to meet George Smith with whom he was “[g]oing to some girl’s house.” He said that about two minutes after he met Smith, they “ [W] alked back out of the parking lot . . .” and “ [T]he police stopped us.” After hearing the four witnesses, the court found defendant guilty of theft. We must decide whether defendant was proven guilty beyond a reasonable doubt.

The charge against defendant is defined in section 16-1 (a)(1) of our Criminal Code, Ill Rev Stats 1967, c 38, §16-1 (a)(1).

A person commits theft when he knowingly:

(a) obtains or exerts unauthorized control over property of the owner; . . . and
(1) intends to deprive the owner permanently of the use or benefit of the property; ....

Its theory of prosecution required the State to prove beyond a reasonable doubt that in the vacant lot where Mr. Davis’ Chevrolet was found, defendant exerted unauthorized control over the car with intent to deprive its owner permanently of his property. The phrase “obtains or exerts control” over property includes but is not limited to the taking, carrying away, or the sale, conveyance, or transfer of title to, or interest in, or possession of property. Ill Rev Stats 1967, c 38, § 15-8. It can be seen that the concept of “unauthorized control” is broad, even though the word “control” has no legal or technical meaning distinct from its popular acceptation. See Ure v. Ure, 185 Ill 216, 56 NE 1087; Wolffe v. Loeb, 98 Ala 426, 432, 13 So 744 (1893). To exert unauthorized control means control exercised over the property of another without the consent of the owner. Scott v. United States, 369 F2d 183 (DC Cir 1966); United States v. Fusco, 398 F2d 32 (7th Cir 1968).

When a Chevrolet automobile, moved without authority of its owner, is found in a vacant lot, jacked up, three of its tires removed, its lugs loosened and its ignition pulled out, reasonable minds would conclude that unauthorized control is exerted over it. Compare People v. Nunn, 63 Ill App2d 465, 212 NE2d 342. In the case before us a policeman saw two men near the Chevrolet. He kept them in view as they ran away. When the two men were apprehended, it was discovered they were defendant and George Smith, his companion, who, when he was searched, had on his person lugs belonging to the Chevrolet.

Defendant testified. He sought to explain his presence near the stolen vehicle by saying that at about 8:00 p. m. that evening, he left his home nearby and went to the lot to meet Smith. They were to go and visit at “some girl’s house.” According to defendant, he met Smith. Two minutes later when they were walking out of the vacant lot, they were arrested. Obviously, the trial judge had to weigh this testimony against evidence of the police call at approximately 9:50 p. m. which sounded the alarm that an automobile was being stripped in the lot.

When a defendant elects to justify or explain his presence at or near the scene of a crime, and he denies participation in it, he must tell a reasonable story or be judged by its improbabilities. People v. Lane, 29 Ill2d 326, 331-332, 194 NE2d 272; People v. Styles, 75 Ill App2d 481, 220 NE2d 885. Defendant made this election. The trial judge, as trier of the facts, was entitled to disbelieve defendant’s explanation of the incriminating circumstances in which he was found. People v. Rossolille, 38 Ill2d 316, 231 NE2d 585. What credibility was to be attached to defendant’s testimony was a matter for the trial judge. People v. Schumacher, 90 Ill App2d 385, 234 NE2d 574. It is evident that the trial judge did not believe defendant’s explanation of his presence near the stolen vehicle.

Unauthorized control over stolen property-may be proved by circumstantial evidence. People v. Davis, 69 Ill App2d 120, 125, 216 NE2d 490; compare People v. Smith, 90 Ill App2d 388, 234 NE2d 161. The indictment, as amended, charged that defendant and George Smith exerted unauthorized control over Davis’ Chevrolet in the vacant lot. The trial judge heard evidence which if believed proved beyond a reasonable doubt that defendant was guilty as charged. We will not substitute our judgment for his, unless the evidence is so improbable or unsatisfactory as to raise serious doubt of defendant’s guilt. People v. Carpenter, 28 Ill2d 116, 190 NE2d 738; People v. Schehr, 88 Ill App2d 287, 232 NE2d 566. Judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Devery Bryant, Defendant-Appellant.
    Gen. No. 53,977.
    First District, Fourth Division.
    March 25, 1970.

      Gordon H. S. Scott and Michael Green, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Contributing to the sexual delinquency of a child. Ill Rev Stats 1967, c 38, § 11-5 (a) (3).

JUDGMENT

After a bench trial, defendant was found guilty as charged and admitted to probation for one year, the first 60 days to be spént in the House of Correction.

CONTENTION RAISED ON APPEAL

The evidence did not prove defendant guilty beyond a reasonable doubt.

EVIDENCE

Vernessa Long, for the State:

She is twelve years old and in the sixth grade. She lives at 4379 South Lamon. On November 30, 1968, she saw defendant and his friend, Eddie Redwood, at defendant’s home at 1926 South Kedzie. She had seen defendant before that day, at her girl friend’s house, 4304 South Cicero, but didn’t know him well. The incident occurred at defendant’s home. She and Amy (age 17) went there together. Amy saw the two boys and “we was walking and then Devery had called Amy and Amy went over there and I was right behind and then Amy had went in the basement with Eddie,” but Vernessa stayed outside. Then defendant dragged her in. Amy was with Eddie Redwood in the basement. Witness had never been in that basement before.

Defendant asked her if she wasn’t “going to give him some.” She said no. Defendant then pulled down her shorts and panties, unzipped his pants, and “stuck hisself” in her. This happened “around about 12:30 in the morning or afternoon, at night.”

Witness did not go home that night (Friday); rather, Amy “went and got” someone named Curtis, and the witness stayed overnight with him at his friend’s house. She went home Saturday morning. She did not tell her mother about what had happened until the following Tuesday, although she had been home with her for three days. Her sister found out about it from a girl friend and asked the witness about it. This was on Tuesday and she then told her mother, who sent the witness to see a Dr. Miller. She was hesitant to tell anyone before that time because defendant had slapped her and told her not to tell anyone.

Devery Bryant, defendant, on his own behalf:

On the night in question, he was at 4304 South Cicero, where “we was visiting a girl named Carolyn. Schaekleford’s house and we was over there until around 12:00, 12:00 or 1:00.” The complaining witness and Amy were there. Amy’s mother had been calling for her telling her to come home, “so, when her mother come over there she [Amy] left out the back door.”

Defendant, Eddie Redwood, and “a boy named Curtis” left around midnight. They caught a bus and then the elevated and took it to 19th and Kedzie (a total distance of about 5 miles). Amy and Vernessa (the complaining witness) were on the elevated and also got off there. Amy said she was going to her auntie’s house. Defendant and Eddie walked Curtis home and returned to where defendant lived. His auntie said the house was cold and he went into the basement to put some coal in the stoker. Amy and Vernessa were already down there. Defendant has a band that practices there and the basement is open all the time. We told them they had to leave, and they did, saying they were going to a restaurant. Amy called defendant around 3:00 a. m. and his auntie told her that he [defendant] couldn’t be receiving calls that late.

Defendant did not so much as touch Vernessa at any time, nor did he push her into the basement, or open his pants.

Eddie Redwood, on behalf of defendant:

Defendant is a good friend of his. His testimony was substantially similar to defendant’s with respect to the night in question, particularly corroborating defendant’s testimony denying the acts charged. Additionally, he testified that he did not “[play] around with” or touch Amy, in the basement.

OPINION

Defendant’s sole contention on this appeal is that the State failed to prove him guilty beyond a reasonable doubt. We are cognizant of the problems that exist in the proof of sex crimes. We consider the offense of contributing to the sexual delinquency of a child to be of the same genre and subject to the same evidentiary standards as those which are applied in rape cases. Just as “an indecent liberties case is similar in character to that of rape” (People v. Watkins, 405 Ill 454, 457, 91 NE2d 406), so is the instant offense. As the court stated in Watkins:

it is an accusation easily made, hard to be proved, and harder to be defended by the party accused, though ever so innocent. (People v. Phipps, 338 Ill 373.) We have always safeguarded the interests of an accused where the testimony is uncorroborated, by requiring that it should be clear and convincing.

Upon a thorough review of the record, we find that the testimony of the twelve-year-old complaining witness is not very satisfactory. We agree with defendant that, because her testimony is uncorroborated and is not of the clear and convincing quality necessary for conviction, it leaves a reasonable doubt as to his guilt. Although it is not contested that Vernessa was in the basement of defendant’s house, she did not explain her presence in that area (in violation of the curfew) at the time defendant and his friend arrived. Nor are we given adequate rationale to explain her staying away from home until the following day. Although repeated references are made by each witness to Vernessa’s friend Amy, who, according to all witnesses, was present at the time of the alleged occurrence, Amy did not testify, thereby leaving Vernessa’s version without any corroboration from its most logical source. An additional question is raised as a result of her not mentioning the occurrence to her mother for three days, and then only at the behest of her sister. There was also no testimony from the doctor to whom Vernessa was taken at that time. Compare People v. Carruthers, 379 Ill 388, 393, 41 NE2d 521. These omissions detract greatly from the testimony of the complaining witness, and, considering defendant’s strong denial of guilt and the corroborative testimony of his eyewitness, we believe that the evidence presented is insufficient. People v. Nunes, 30 Ill2d 143, 146, 195 NE2d 706; People v. Williams, 414 Ill 414, 416, 111 NE2d 343.

Were it not for our conclusion to reverse defendant’s conviction outright, we would reverse and remand for a new trial, because the trial court’s determination that the 12-year-old complaining witness was competent to testify failed to meet established standards. The court’s complete preliminary inquiry of this witness is set out in the record as follows:

MR. TRUSCHKE (Asst. State’s Attorney): Q. “Do you know what it means to tell the truth?”
A. “Yes, sir.”
Q. “Do you know where you’re at today ?”
A. “Yes, sir.”
Q. “Do you know who that man sitting up there is?”
A. “Yes, sir.”
Q. “Who is he?”
A. “The judge.”
Q. “What happens if you don’t tell him the truth?”
A. “(No response.)”
Q. “Are you going to tell him the truth ?”
A. “Yes, sir.”
MR. TRUSCHKE: “Ask for a rule on competency, your Honor.”
THE COURT: “She is competent.”

For a rather full discussion of why we believe this kind of limited inquiry constitutes an abuse of the court’s discretion, see People v. Sims, 113 Ill App2d 58, 251 NE2d 795, and the cases there cited. While this point has no direct bearing on the disposition of this case, it does, when considered along with the generally unsatisfactory testimony of the witness, tend to leave us with a lingering doubt as to whether or not the State’s sole witness was competent to testify at all.

The judgment of the Circuit Court is reversed.

Reversed.

DRUCKER and LEIGHTON, JJ., concur.

       HEARING IN AGGRAVATION AND MITIGATION Defendant- is 17 years old and has no criminal, or juvenile, or arrest record. He was employed in his second year at the Urban Progress Center as a storekeeper’s helper on the Neighborhood •Youth Corps program. A fellow employee, Rosemary Love, defendant’s supervisor, testified that he is honorable and trustworthy, and responsible in his job; and that when defendant heard the police were looking for him, he went to them unaware of what had happened.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Clark, Defendant-Appellant.
    Gen. No. 54,026.
    First District, Fourth Division.
    March 25, 1970.

      J. Tobias Dixon, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Francis X. Riley, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

In the First Municipal District of the Circuit Court of Cook County, defendant was charged with (1) running a red light while operating his vehicle and (2) driving while under the influence of intoxicating liquor. November 20, 1968, he waived trial by jury. He was acquitted of the first charge but convicted of the second. Thereafter, defendant made a motion for a new trial. The motion was sustained.

February 28, 1969, defendant again waived trial by jury. He was found guilty of driving while under the influence of intoxicating liquor. His driver’s license was revoked pursuant to statute; and the court imposed a fine of $100 and $5 costs. Defendant appeals. Although he urges two grounds for reversal, we will discuss only the contention that defendant was not proven guilty beyond a reasonable doubt.

On May 21, 1968, at about 12:05 a. m., Arthur Davis was driving his automobile in a northerly direction on South Cottage Grove Avenue approaching the intersection of East 76th Street, Chicago. Slightly ahead of him, on the curb lane, and going the same direction, was an automobile driven by Fred Rogers. When Davis reached the intersection, defendant, driving a Volkswagen east on 76th Street, struck Davis’ automobile, causing it to collide with the left front fender of the automobile driven by Rogers. Defendant’s head crashed through the windshield of his car and he was knocked unconscious. He had blood on his head and on his face. Because of his condition, neither Davis nor Rogers was able to speak with him.

Aided by a nurse, two firemen "took defendant from his car, put him on a stretcher and by an ambulance carried him to the Jackson Park Hospital a few blocks away. There he was carried by the firemen into an emergency room and placed on a hospital table. He was treated for injuries which required sutures on his chin and on his chest. Defendant remained at the hospital approximately a half hour. He was then taken into custody by Officer Thomas McDonald, who issued the two complaints.

At defendant’s trial, McDonald testified that when he arrived at the scene of the accident he went to defendant’s car but he could not arouse him. McDonald said that when he tried to get defendant out of the car “[I] smelled the strong odor of alcohol on his breath.” McDonald described defendant’s attitude at the hospital as “combative” and he was using “profanity.” None of the ordinary tests for sobriety were given defendant. However, McDonald said that about 1:00 a. m. at the hospital, defendant’s “[b] alance was unsure—Walking was stumbling. His turning is swaying. Finger to nose test, he did not perform at the hospital. His speech was thick tongued.” McDonald a 22-year police veteran who “[h]ad occasion to view many people under the influence of liquor, . . .” gave the opinion that defendant “[w]as under the influence of alcoholic beverages . . . .” Although Davis and Rogers were at the scene of the accident, and they were close enough to defendant to observe that he was unconscious, they were not asked, nor did they furnish any testimony that touched on the question of defendant’s intoxication. Thus, McDonald was the only witness who furnished evidence to establish the corpus delicti of the charge against defendant.

At the scene of the accident, McDonald said that he made two observations: (1) there was a strong odor of alcohol on defendant’s breath and (2) defendant’s clothing was orderly. This evidence has to be weighed against defendant’s assertion that prior to the accident he had not consumed any alcoholic beverage. McDonald’s testimony that the breath of the accused smelled of liquor, standing alone, is not sufficient proof that defendant was intoxicated. State v. Hainbuch, 74 Ohio App 193, 57 NE2d 940 (1943). See, Critzer v. Donovan, 289 Pa 381,137 A 665 (1927).

The State argues, however, that there is more in evidence than the product of McDonald’s sense of smell. At the hospital, apparently during administratian of medical treatment, McDonald observed that defendant’s balance was “unsure,” his walk was “stumbling,” in turning he was “swaying”; and that defendant’s speech was “thick tongued.” In our judgment, McDonald’s testimony in this regard was materially impaired by defendant’s physical condition. He was seen by two witnesses unconscious at the wheel of his automobile. His head had crashed through a windshield. He had blood on his face, on his head; and he had to be carried to a hospital on a stretcher. Defendant’s injuries required sutures on his chin and on his chest. Thus, description of his conduct as “unsure,” “stumbling,” “swaying,” or “thick tongued” does not rationally support a charge of intoxication. It was the burden of the State to prove beyond a reasonable doubt that defendant, at the time in question, drove his automobile while under the influence of intoxicating liquor. People v. Foster, 114 Ill App2d 357, 252 NE2d 722.

Evidence in the record does not meet the State’s burden of proof. Instead, defendant’s conviction rests on evidence so unsatisfactory that it raises a reasonable doubt of his guilt. Under these circumstances we will reverse. People v. Anderson, 30 Ill2d 413, 197 NE2d 24; People v. Quintana, 91 Ill App2d 95, 234 NE2d 406. Judgment is reversed.

Judgment reversed.

DRUCKER and ENGLISH, JJ., concur.


author: MORAN, P. J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Lee Ogden, Defendant-Appellant.
    Gen. No. 69-59.
    Fifth District.
    March 30, 1970.

      Donald L. Metzger, Vuagniaux & Metzger, of Edwardsville, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago, Morton E. Friedman, Assistant Attorney General, of Chicago, and R. W. Griffith, Jr., State’s Attorney of Madison County, of Edwardsville, for appellee.
   MORAN, P. J.

Defendant, Ronald Lee Ogden, was convicted of burglary in a jury trial in the Circuit Court of Madison County and sentenced to the penitentiary for a term of three to eight years.

Defendant’s only contention is that the prosecution failed to prove the ownership of the property burglarized beyond a reasonable doubt as alleged in the indictment which stated that defendant “knowingly entered into a building, known as Tobey’s Tavern, located at 129 East Alton Avenue, East Alton, Illinois, owned by Clyde De Gerlia and being leased by Madeline Gibson.”

The proof with respect to these allegations shows that the building in question is located at 129 East Alton Avenue and is known as Tobey’s Tavern. Madeline Gibson is the operator and sole proprietor of this business and had never given defendant authority to enter the storeroom, where he was found.

Both parties have conceded that no other competent evidence was introduced to prove that Clyde DeGerlia owned the building or that Madeline Gibson leased it.

Defendant relies on the elementary proposition that ownership of a premises is an essential allegation of an indictment for burglary and that such allegation must be proved as laid, People v. Mosby, 25 Ill2d 400, 185 NE2d 152; People v. Walker, 7 Ill2d 158, 130 NE2d 182; People v. O’Brien, 404 Ill 236, 88 NE2d 486; People v. Jamison, 92 Ill App2d 28, 235 NE2d 849, and this is true even if alleged with unnecessary particularity. People v. Clavey, 355 Ill 358, 189 NE2d 364. A strict application of this rule would require reversal in this case since no evidence of ownership has been adduced and it has not been shown that Madeline Gibson was operating this tavern under a lease.

However, recent cases have indicated that every variance with respect to a material allegation is not, per se, a fatal defect, People v. Harden, 42 Ill2d 301, 247 NE2d 404; People v. Knox, 98 Ill App2d 270, 240 NE2d 426; People v. McClure, 93 Ill App2d 450, 235 NE2d 677, and it is sufficient to plead and prove occupancy or possession in a party which is rightful as against the burglar. People v. Lymore, 25 Ill2d 305, 185 NE2d 158; People v. Stewart, 23 Ill2d 161, 177 NE2d 237.

These cases have avoided rigid formality and have looked to the functions of the material allegations of the indictment which are to show that the premises burglarized was not the property of the defendant, to enable the accused to prepare for trial and to plead an acquittal or conviction in bar of a subsequent prosecution for the same offense. Where these functions of the allegation and proof of ownership have been realized, the conviction should not be reversed for harmless variance. People v. Harden, supra; People v. Stewart, supra; People v. Kreisler, 381 Ill 453, 45 NE2d 653.

For example, in People v. McClure, supra, the indictment alleged that the defendant “without authority, knowingly entered into a building owned by Schuham’s Ace Hardware Store, Inc., a corporation, located at 479 Roosevelt Road, Glen Ellyn, Illinois, with intent to commit therein a theft.” The evidence showed that the building in question was owned by one Pasquale Mazza. Mr. Mazza occupied a portion of the building and leased the remainder of the building to Schuham’s Ace Hardware Store, Inc.

In upholding the conviction, the court stated at page 458:

“When we examine the present case in light of the more recent decisions of the Supreme Court and in light of the basic reasons for the existence of the rules to make the protection of the defense against double jeopardy and the requirement of proving that the defendant had entered someplace where he had no right to be, we feel that the variance of this case is not fatal and the conviction should not be subject to reversal on this basis. The entry was made into a store property occupied by Schuham pursuant to a lease from Mazza. Insofar as the defendant is concerned, Schuham had all indicia of occupancy and right to possession. The charge is sufficient to negate any right on the part of the defendant to enter the property by making a hole in the roof and ceiling of the hardware store premises and there can be no doubt that the pleading is sufficiently specific to preclude the defendant from running the risk of double jeopardy.”

In the present ease Madeline Gibson had all indicia of ownership and right to possession which was rightful as against defendant. The premises involved are effectively identified both in the indictment and in the evidence, and the defendant would be fully protected in a subsequent prosecution for this offense, since in a subsequent prosecution he may introduce the record of this case to establish his defense of prior jeopardy. People v. Knox, supra.

For the foregoing reasons the defendant’s conviction is affirmed.

Judgment affirmed.

GOLDENHERSH and EBERSPACHER, JJ., concur.