author: MR. JUSTICE BURKE

text:
    Floyida Stewart, as Administratrix and as Personal Representative of the Estate of Enoch Earl Stewart, Deceased, Plaintiff-Appellee, v. Max E. Beegun, et al., Defendants-Appellants, and Wolin-Levin, Inc., Defendant.
    Gen. No. 51,616.
    First District, Second Division.
    June 2, 1970.

      Rago, Kiely & Kages and Jones and Clark, of Chicago (Vincent M. Clark, of counsel), and Jerome H. Torshen, of Chicago, for appellants.

      Samuel V. Bossov and Joseph R. Curcio, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action for wrongful death brought by plaintiff as administratrix of the estate of her deceased son, Enoch Earl Stewart. Trial was had without a jury. The trial court found in favor of Wolin-Levin, Inc., and against plaintiff, and also found in favor of plaintiff and against the Beeguns and Rozen. Judgment was entered against the latter three defendants in the amount of $12,500, and they appeal. Plaintiff has not appealed from the judgment entered in favor of Wolin-Levin, Inc.

On October 30, 1963, Max E. Beegun and Alice Beegun were the beneficial owners of improved real estate located at 6146 South Kenwood Avenue in Chicago. The property was improved with a six-story, 67-unit apartment building which was serviced by an automatic self-service passenger elevator and a freight elevator. Prior to October 30, 1963, the Beeguns entered into a contract to sell the realty to Morris Rozen. The latter engaged Wolin-Levin, Inc., as managing agent of the building and a person named Johnnie Jordan as building manager. Both Wolin-Levin, Inc., and Jordan were acting in those respective capacities on October 30, 1963. Jordan was not made a party to this action.

The mishap occurred sometime between 7:30 and 8:30 on the morning of October 30, 1963. The Chicago Fire Department received a call to investigate a report of an accident involving the passenger elevator in the building. Chicago Police Officer Felix Muniz testified that he observed a fire truck proceeding to the scene and that he followed in his police vehicle for the purpose of controlling traffic at the scene. When he arrived at the building he was informed of the accident and immediately went to the fourth floor of the building to investigate. He opened the elevator hatchway door and looked down the shaft. He testified that he observed the elevator cage stopped between the third and fourth floors, and “one kid crying inside the elevator cage and . . . another kid bent between the wall and the elevator. It was a boy.” The boy wedged between the elevator cage and the wall was plaintiff’s deceased, a tenant on the third floor of the building. The boy with the deceased also lived in the building.

The officer testified that he believed plaintiff’s deceased to have been alive when he first observed him because he saw the boy’s arm move. A hole was made in the wall and the boy was removed. The officer testified that the boy’s chest was crushed and that he was pronounced dead at a hospital. The deceased was seven years of age at the time of death and weighed about 35 pounds.

The passenger elevator was equipped with a collapsible, or “scissors” type, car gate. At each landing there was a hatchway or outer door equipped with an electric interlocking device which regulated the movement of the cage. Only when the cage gate and the hatchway door were closed could the elevator cage be put into motion. Attachment of a large metal plate to the shaft side of each hatchway door was required to eliminate excessive space between the hatchway door and the elevator cage gate. The plate, known as a “pan guard,” measured three inches in depth, and covered the entire width of the door, from the bottom upwards to a height of about four feet.

The pan guard was involved in the functioning of the interlock system in that, if it were properly in place, the electric circuit of the interlock system would be complete and the elevator would be unable to move with any doors open. In the absence of a pan guard on a hatchway door, the circuit could not be completed and the elevator cage would be able to move although the doors were open.

Two City of Chicago elevator inspectors, both of whom inspected the scene shortly after the accident and one of whom arrived on the premises on a routine elevator inspection about the same time as the police and firemen arrived at the scene, testified that the pan guard was missing from the third-floor hatchway door. Without the pan guard the clearance between the elevator cage gate and the hatchway door was about six inches, a space greater than that permitted by an applicable city ordinance. Neither inspector could state whether the pan guard was missing from the third-floor door prior to the mishap, although they testified that the hatchway door was removed from its hinges and placed against the wall.

Officer Muniz also testified that while he observed the two boys in the elevator shaft and in the cage through the fourth-floor elevator hatchway door, that door should not have been able to open while the elevator was between floors. The officer further testified, without objection, that he ascertained from the companion of the plaintiff’s deceased that the two boys “got in the elevator. One kid went to get out on the third floor, the other kid wanted to get out on the sixth, and the kid pushed the button to go to six. The kid that got out on the third floor, that is an accident.” (Sic.)

Norman Levin was called by plaintiff under section 60 of the Civil Practice Act and testified that he represented Wolin-Levin, Inc., the managing agent of the building. He stated that his firm had been employed by Morris Rozen as managing agent prior to the mishap, that his firm engaged an elevator service company which serviced the elevators in the building on a bimonthly basis, that when his firm assumed the management of the building there were pan guards on all the hatchway doors, and that his firm was never served with notice from the city as to any elevator ordinance violation in the building. Levin testified that any bills, contracts, or the like, received by Wolin-Levin, Inc., in connection with the building were stapled to the monthly statements and forwarded directly to “the owners.”

Johnnie Jordan, who was the only witness called by the defendants, testified that he was the building manager on the day of the mishap and that he was called to the scene. He testified that he never received notice of an ordinance violation with regard to the elevators, that he informed the tenants in the building not to permit children under twelve years of age to operate an elevator alone, but could not recall if plaintiff received such notice, and that whenever there would be a malfunction of an elevator he would notify the elevator service company which would make the necessary repairs. Jordan further testified that he was engaged by Morris Rozen to manage the building.

The Beeguns and Rozen maintain that the finding against them, but in favor of Wolin-Levin, Inc., is inconsistent and must be set aside. They argue that the finding against them is based upon the doctrine of respondeat superior, and that since their agent (Wolin-Levin, Inc.) was exonerated, they must be exonerated.

In their opening brief the Beeguns and Rozen admit that they acted in connection with the operation and maintenance of the elevators, “only through their agents.” They then go on to state that Wolin-Levin, Inc., and Jordan were agents hired by Rozen. In her brief plaintiff states that apart from the question of respondeat superior, the Beeguns and Rozen were guilty of dereliction of a duty placed upon them by the City of Chicago elevator ordinance and breached their common-law duty to maintain a safe passenger elevator in the building.

In a reply brief filed only on behalf of the Beeguns, by counsel different than the counsel who filed the opening brief, they argue that the elevator ordinance did not apply to them, because they were owners out of possession. They further alter the position stated in their brief in chief by maintaining that they did not act through either Wolin-Levin, Inc., or Jordan, but that they divested themselves of possession and control of the elevators when they entered the contract for sale with Morris Bozen. Supreme Court Rule 341(g) provides that the reply brief shall be confined strictly to replying to arguments presented in the brief of the appellee.

We are of the opinion that sufficient competent evidence was introduced to authorize the trier of fact to find that the Beeguns and Bozen violated their common-law duty as common carriers to maintain a safe passenger elevator. There was evidence that these defendants failed to exercise the care and diligence required of a common carrier. Carson v. Weston Hotel Corp., 351 Ill App 523, 537, 115 NE2d 800.

The evidence shows that the Beeguns were the beneficial owners of the property and that prior to the mishap they contracted to sell to Bozen. As beneficial owners the Beeguns were entitled to the possession and control of the premises including the elevators. The evidence also shows that as contract purchaser Bozen was also entitled to possession and control of the premises and that he engaged Jordan and Wolin-Levin, Inc., as building manager and managing agent, respectively.

Plaintiff’s deceased was rightfully a passenger on the elevator and both the Beeguns and Bozen were plaintiff’s deceased’s common carriers. They therefore owed him the highest degree of care for his safety while a passenger on the elevator. (See Cobb v. Marshall Field & Co., 22 Ill App2d 143, 159 NE2d 520, at 153.)

Plaintiff’s evidence showed that the elevator was defective in two respects, namely, the excessive space between the elevator cage gate and the hatchway door which was due to the missing pan guard, and the ability of the elevator cage to move while doors were open.

The evidence adduced on behalf of the Beeguns and Rozen consisted of the testimony of Johnnie Jordan, who denied knowledge that any defect existed in the elevator. The testimony by Jordan and Levin that the elevators were serviced by an independent service company on a bimonthly basis cannot exculpate the Beeguns and Rozen; nor can these defendants be absolved from liability by delegating the maintenance of the elevators to others. See Kopta v. Greer Shop Training, Inc., 327 Ill App 470, 64 NE2d 570; Carson v. Weston Hotel Corp., 351 Ill App 523, 115 NE2d 800. Based upon all the evidence in the case, the trial judge had a right to find that the Beeguns and Rozen failed to exercise the high degree of care required of them as common carriers in the maintenance and operation of the elevator.

The Beeguns failed to introduce any evidence tending to show that they, as the beneficial owners of the property, relinquished possession and control of the property to Rozen. We agree that an owner of property, who is out of possession and who has relinquished control to a lessee, or the like, will generally be held not liable for injuries resulting from defective or dangerous unconcealed conditions upon the premises not theretofore existing or known to him. Kopta v. Greer Shop Training, Inc., 327 Ill App2d 470, 64 NE2d 570. This is not the situation in the case at bar. Although it is alleged in the brief of the Beeguns that they had relinquished control and possession of the building to Rozen, they failed to introduce the contract of sale, or any testimony relative thereto in an effort to substantiate this claim.

With regard to the contention that the Beeguns and Rozen should have been exonerated in view of the finding of the trial court in favor of Wolin-Levin, Inc., this question may be raised only as to Rozen, since the uncontroverted evidence is that neither Jordan nor Wolin-Levin, Inc., was agent for the Beeguns.

Jordan, who was not made a party to these proceedings, was also the agent of Rozen in the operation of the property. Under the complaint, Bozen was charged with negligence not only through Wolin-Levin, Inc., a defendant, but individually as well. Bunyan v. American Glycerin Co., 230 Ill App 351, 355-59.

Jordan was the manager of the building whereas Wolin-Levin, Inc., was the managing agent. It appears that Jordan was responsible for the day-to-day running of the building, and was in a position to detect the defect which existed in the elevator. Jordan testified that he was familiar with the operation of the interlock system on the elevator. He also testified that he notified all tenants not to permit children under the age of 12 years to ride the elevator alone, but he could not remember having so advised plaintiff. Jordan contacted the elevator service company whenever the elevators malfunctioned. Levin, on the other hand, testified that Wolin-Levin, Inc., forwarded all bills, contracts, and the like, directly to the owners of the building whenever they were received by Wolin-Levin, Inc., stapled to the monthly statements. There was sufficient evidence presented from which the trial court could find that Jordan was guilty of negligence, and that Wolin-Levin, Inc., was not.

The final point raised by the Beeguns and Bozen is that there was no evidence showing any wrongful act or omission on their part, nor any evidence tending to show any defect in the elevator at the time of the occurrence. We disagree.

While the evidence against the defendants was largely circumstantial, it was competent and sufficient to support the finding and judgment. There was sufficient evidence, from which the trial court could find a breach of a common-law duty in the operation and maintenance of the elevator. Inferences in favor of plaintiff and against the Beeguns and Rozen may be drawn from such evidence as the missing pan guard, the excessive space between the hatchway door and the elevator cage gate, the failure of the interlock system to function properly,' and the uncertainty of Jordan as to the notice to plaintiff not to allow children under 12 years of age to ride the elevator alone.

The contention that the finding is against the manifest weight of the evidence is unavailing.

For these reasons the judgment is affirmed.

Judgment affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    Floyida Stewart, as Administratrix and as Personal Representative of the Estate of Earl Stewart, Deceased, Plaintiff-Appellee, v. Max E. Beegun and Alice Beegun, Defendants-Appellants, and Morris Rozen and Wolin-Levin, Inc., Defendants.
    Gen. No. 52,841.
    First District, Second Division.
    June 2, 1970.

      Jerome H. Torshen, of Chicago, for appellants.
    Joseph R. Curcio and Samuel V. Bossov, of Chicago (Sidney Z. Karasik, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This is an appeal from an order denying a petition filed by Max E. Beegun and Alice Beegun pursuant to section 72 of the Civil Practice Act. The petition sought to vacate a judgment entered against the Beeguns and Morris Rozen, in a wrongful death action brought by plaintiff as administratrix of the estate of her deceased son, Earl Stewart. That judgment was affirmed by this court upon a direct appeal. (See 126 Ill App2d 120, 261 NE2d 191.)

The petition alleges in substance that the Beeguns, on or about January 7, 1954, became the beneficial owners of the seller’s interest in a contract for the sale of a parcel of real estate, title to which was held under a land trust. The property is improved with a six-story, 67-unit apartment building and was situated on the south side of Chicago. The Beeguns allege in their petition that their interest in the premises was purely as security for the payments provided for in the contract of sale, and that at no time had they entered into the actual possession or control of the property.

The petition further alleges that the purchaser’s interest in the contract of sale was assigned to Morris Bozen on or about April 16, 1961, who then entered into immediate and complete control, possession and management of the premises. It is alleged that Bozen was acting in such capacity, through his duly authorized agents, on the day of October 30, 1963, when plaintiff’s deceased, a tenant in the building, was fatally injured in the passenger elevator serving the building.

The petition alleges that plaintiff filed her complaint on December 18, 1963, naming only the trustee under the land trust as defendant in the action, that the trustee notified the Beeguns of the pending action and requested the name of the insurance carrier holding coverage on the premises, and that the Beeguns thereupon notified the trustee that the “proper party” to notify of the action was Morris Bozen, the contract purchaser. A copy of the notice was sent to Bozen’s attorneys.

An amended complaint was filed naming the Beeguns as defendants. The Beeguns forwarded a notice thereof to the insurance carrier, and sent the complaint and summons to Rozen. In May 1964 an appearance and an answer were filed on behalf of the Beeguns by counsel retained by the insurance carrier. The Beeguns allege in their petition that they were not supplied with a copy of that answer, nor did they have knowledge of the contents thereof.

In September 1964, Max Beegun was notified of and appeared for a deposition taken by plaintiff’s attorney. It is alleged in the petition that at that time he advised his counsel that the Beeguns were simply the contract sellers of the property, that they had neither possession nor control of the premises at the time of the mishap, and that the owner of the purchaser’s interest in the contract was Morris Rozen.

Shortly thereafter a second amended complaint was filed alleging the Beeguns to be the owners of the property. An answer was filed, denying their ownership of the property and affirmatively alleging that they were the beneficiaries under a land trust. The Beeguns allege in their petition that they were not consulted with regard to the answer filed to the second amended complaint and that they had no knowledge of the contents thereof until after the entry of the judgment against them.

The Beeguns further allege in their petition that together with their answers to plaintiff’s interrogatories received by their counsel and forwarded to them, they requested their counsel to send them copies of all pleadings and other matters filed in the case. They allege that this request was not complied with, and further allege that the last communication which they had from their attorney was in February 1965.

The trial of the wrongful death action was had on March 8, 1966. The Beeguns allege in their petition that they never received notice that the matter had been set for trial, and that they did not appear at the trial as a result.

The issues were found by the court sitting without a jury against the Beeguns and Bozen and in favor of the plaintiff, and judgment was entered accordingly. A post-trial motion was filed and denied on April 19, 1966, and the Beeguns allege in their petition that they never received notice thereof. Notice of appeal was filed thereafter, and the Beeguns also allege in their petition that they received no notice of the filing thereof.

The section 72 petition alleges that it was not until July 28, 1967, that the Beeguns first learned of the judgment against them and of the pending appeal. Max Beegun, an attorney at law practicing in the Chicago area, had appeared in court on a matter unrelated to the instant case and spoke to the attorney whose office had been engaged by the insurance carrier to prepare the appeal. It is alleged in the petition that the Beeguns thereupon engaged their own attorneys to fully investigate the matter.

On September 1, 1967, the Beeguns received a notice of motion from counsel retained by the insurance carrier for leave to withdraw as counsel; the motion was allowed. The notice of motion was immediately forwarded to the Beeguns own attorneys. It further appears that the original brief filed in the wrongful death appeal had been filed in June 1967 by counsel retained by the insurance carrier, but that the reply brief filed therein was filed by counsel other than the one originally retained.

On October 9, 1967, the Beeguns received notice that the insurance carrier was no longer in operation, that its functions had been taken over by the State Director of Insurance, and that it was no longer connected with the wrongful death action. They were also notified that the insurance policy issued by the carrier no longer stood as a supersedeas during the pendency of the appeal. The Beeguns then allege in their brief:

“Thereafter, Beeguns, through attorneys retained by them, acted with dispatch and diligence to ascertain the facts hereinabove set forth and the questions of law involved in the personal injury action.”

The main thrust of the section 72 petition, and of this appeal, is that, had counsel originally retained by the Beeguns’ insurance carrier properly maintained the defense that the Beeguns were owners out of possession and control of the premises, in light of the contract of sale with Rozen, the judgment would not have been entered against them; they further maintain that they acted with dispatch and in a diligent manner in the filing of the section 72 petition after ascertaining the factual situation with regard to the representation of their original counsel. We are of the opinion that under the circumstances the trial court properly denied the petition for relief under section 72 of the Civil Practice Act.

The allegation made, that the counsel originally retained by the insurance carrier was negligent in the investigation and conduct of the wrongful death action in that the proper defense was not advanced, will not be considered here. It is well established that section 72 of the Civil Practice Act does not afford a litigant a remedy whereby he may be relieved of the consequences of the mistakes or negligence of his trial counsel. Bartolini v. Popovitz, 108 Ill App2d 89, 94-95, 246 NE2d 834. See also Stoller v. Holdren, 47 Ill App2d 81, 82-83, 197 NE2d 492.

The Beeguns have not acted with diligence and dispatch in the filing of the instant petition. Max Beegun is an attorney practicing law in the Chicago area. The Beeguns were notified of the action against them when plaintiff filed her case, and chose to submit the conduct of the case to their insurance carrier and, impliedly, the attorney chosen by the carrier. In their petition for relief under section 72, the Beeguns nowhere allege facts showing that they followed the status of their case, and allege only two occasions when they requested information as to the pleadings and other matters filed in the case from their counsel. A litigant has the duty to follow the progress of his case, and he may not simply assume that his counsel is doing everything necessary and proper in the conduct thereof. Bartolini v. Popovitz, 108 Ill App2d 89, 94-96, 246 NE2d 834.

The Beeguns were advised of the judgment against them and of the pendency of the appeal in the wrongful death action in July 1967, and yet it was not until almost three months later that they retained their own counsel to handle the appeal, and then only after the counsel originally retained by the insurance carrier had been granted leave to withdraw from the case and the insurance carrier had ceased operations. Under all the circumstances the trial court did not abuse its discretion in denying the relief prayed in the section 72 petition.

For these reasons the order is affirmed.

Order affirmed.

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


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Rush, Defendant-Appellant.
    Gen. No. 52,769.
    First District, Second Division.
    June 2, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Chester P. Majewski and James J. Doherty, Assistant State’s Attorneys, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Willie Rush was found guilty, following a bench trial, of the offense of attempt robbery (Ill Rev Stats (1965), c 38, § 8-4). Judgment was entered on the finding and he was sentenced to a term of not less than one nor more than seven years in the Illinois State Penitentiary. In this appeal he contends that the trial court erred in denying his motion to strike certain testimony and that he was not proven guilty beyond a reasonable doubt.

Roterick McLaughlin, a Chicago Police Officer, the first witness called by the prosecution, testified as follows. At approximately 2:30 a. m. on the morning of March 5, 1967, he left his home to procure some medicine for his infant son. He went to a store known as the Big B, located at Central Park and Roosevelt Road in the City of Chicago, but was unable to procure the drugs which he sought. On his return, he parked his car in the vicinity of 3150 West Harrison, some three city blocks from his home, and proceeded toward home on foot. He explained that the car was left behind because it had been subject to vandalism when parked near his home.

While walking toward his home, he was accosted by a male figure who had been standing in a doorway at 3203 West Harrison. The man called to him and when witness turned, the man, pointing an automatic pistol at witness, said, “This is a stickup.” Witness then announced his office as a Chicago Police Officer and drew his service revolver. The man stepped back, stating that he would shoot, then fired one shot and retreated up the staircase of the building in front of which he had been standing. Witness returned fire, shooting at the fleeing man three times.

Hesitating before following the man up the stairs, McLaughlin heard the sound of glass breaking. When he did climb the stairs, he observed that the glass in a door at their crest had been broken and there he found an automatic pistol. McLaughlin did not conduct an exhaustive search of the apartments on the second floor of the building into which his assailant had fled. He did, however, proceed through the building via the second-floor hallway and exit through the rear door. He was unable to find the assailant.

McLaughlin further testified that he then returned to the front of the building where he spoke with police officers Bolton and Vavrin. He sat in their car while they prepared a report of the incident and gave them a description of the defendant. At trial McLaughlin described the assailant as being five feet, nine to five feet, ten inches tall and weighing one hundred eighty to one hundred ninety-five pounds. He appeared to be wearing a wig which had a blond streak in it, and wore lipstick.

Later that same morning, witness went to Illinois Research Hospital in response to a call. There he observed the defendant and identified him as the assailant.

Laddie Vavrin, the second witness called by the prosecution, testified as follows. On March 5, 1967, he was a Chicago Police Officer assigned to the Eleventh District. At approximately 3:30 a. m. on that date he and his partner were in a squad car proceeding south on Kedzie Avenue near Harrison when they heard shots being fired. He observed a man with a gun at the front of a building located at 3203 West Harrison. After being ordered to drop the gun, the man identified himself to Vavrin as Officer McLaughlin of the Chicago Police Department. After a short conversation with McLaughlin, witness proceeded to the rear of the building where he observed fresh footprints in the snow. He followed the footprints to Flournoy Street where they mingled with other prints. Witness then returned to the front of the building where he had encountered McLaughlin.

Witness, his partner, and McLaughlin then returned to the squad car where witness took a statement from McLaughlin, including a description of his alleged assailant. Thereafter, McLaughlin left the car and witness and his partner resumed their regular patrol.

An hour to an hour and one half later, witness and his partner, in response to a radio call, drove to Illinois Research Hospital to investigate a report that an individual was there being treated for gunshot wounds. Upon arrival, witness observed defendant who was being treated for such wounds. Vavrin asked defendant what had happened, to which defendant responded that he had been shot while in the vicinity of Pulaski and Flournoy Streets, when he attempted to flee from three would-be robbers. (At this point defendant objected to the testimony on Miranda grounds and moved that it be stricken. The motion was denied.)

Vavrin also testified that while at the hospital he was aware that the defendant closely resembled the description given him by Officer McLaughlin. Vavrin described Rush, as he viewed him in the hospital, as having black hair with a section of light colored hair at about the center of his forehead, round face, medium build, and as having smeared lipstick on his mouth. Finally, Vavrin testified that he was separated from his partner, Officer Bolton, once at the hospital, when the latter left the emergency room to phone Officer McLaughlin. The defendant was not in custody at the time witness conversed with him.

Elizabeth Dawson, first witness called by the defense, testified as follows. On March 5, 1967, she lived in the building located at Harrison and Kedzie in the City of Chicago. She could not recall the exact street address. At approximately 2:30 a. m. on that date, she was at home and preparing to retire when she heard three shots fired and then heard someone call for help. She recognized this voice to be that of Willie Rush. She went into the hall and found Rush leaning against the wall. She knew that he was injured and could see that he was bleeding but did not ask him what had occurred. Rush asked her for help and she took him to her room where she gave him a towel. While in the hall, she observed a number of other people, also in the hall, but did not recognize any of them. She did not see a police officer in the hall nor did she see anyone with a gun. The defendant remained in her room for approximately fifteen minutes and then left via the rear door. Miss Dawson also testified that she had known the defendant for two years but had never known him to wear lipstick or other makeup or to have a blond streak in his hair.

Finally, Miss Dawson testified that she was employed as a cashier at the Big B Super Market and was so employed on March 5, 1967. Due to her employment she was familiar with the goods sold. Aspirin, but no other drugs, was sold at the Big B.

Velma Rush, an aunt of the defendant also called on his behalf, testified as follows. On March 5, 1967, she went to a hospital where she observed the defendant as he was being treated for gunshot wounds. While there she engaged in a conversation with the witness McLaughlin. During the course of the conversation she observed that his eyes had “a sleepy look” and that his breath smelled of alcohol.

Willie Rush took the stand on his own behalf and testified as follows. At approximately 2:30 a. m. on the morning of March 5, 1967, he left the Peppermint Lounge, located just off the corner of Kedzie and Harrison Streets and walked down about three doors to a bus stop. He waited there to hail a cab or bus as it was a cold night. As he stood there, he observed McLaughlin walking toward him from the opposite side of the street. McLaughlin, tie loosened, was wearing a loud colored coat and carrying another coat. It took him a long time to cross the street and someone shouted for him to get out of the street. When McLaughlin paused to adjust his slacks, Rush observed that he had a gun in his belt.

McLaughlin engaged Rush in conversation and eventually asked Rush to “go kneel on him.” Defendant refused and stated that he was not looking for any trouble. When he turned to leave, McLaughlin drew an automatic pistol and asked where he was going. Rush responded that he lived in the building in front of which they were standing and started up the stairs. McLaughlin then began shooting at him, hitting him in the back portion of his left thigh, right arm, and upper portion of his back.

Defendant continued up the stairs and knocked on the door at the top. When a lady opened the door, defendant told her that he had been shot and asked for help. Elizabeth Dawson took him to her room and gave him a towel. He did not call the police as Miss Dawson did not have a phone. After leaving Miss Dawson’s room, he exited the building through the side door and took a cab to Illinois Research Hospital. While at the hospital, the doctors who treated him allowed only one detective to converse with him. All other police officers present stood near the door.

Finally, defendant testified that he had known Miss Dawson for two years and that he did not tell her that he had been shot. He never had a light streak in the middle of his hair, but at one time the sides were tinted.

Defendant first contends that the trial court erred in denying his motion to strike that portion of Officer Vavrin’s testimony relating to a conversation alleged to have taken place between Vavrin and defendant at the hospital. In support of this contention he argues first, that a Miranda warning was mandatory in that at the time of the alleged conversation he was a suspect and had been denied his freedom of action in a significant manner. He then points out that there is no evidence in the record that he was given the fourfold warning required by Miranda v. Arizona, 384 US 436, 86 S Ct 1602 (1966), prior to the time that the statement attributed to him was allegedly made. The State has argued only that Miranda warnings were not required, as defendant was not under arrest at the time in question. Thus, the issue formed by the briefs is whether, at the time of the alleged conversation, the factual setting was such as to require that Miranda warnings be given. We do not believe, however, that the resolution of this issue is dispositive of the case. Even if it were to be decided that such warnings should have been given and that as a consequence it was error to deny defendant’s motion to strike, it does not necessarily follow that the judgment must be reversed. The commission of error of constitutional dimension by the trial court does not necessarily dictate that that court’s judgment be reversed. See Chapman v. California, 386 US 18, 87 S Ct 824 (1967).

In People v. Landgham, 122 Ill App2d 9, 257 NE2d 484, this court stated:

Errors of a constitutional nature can be regarded as harmless, if we are able to declare beyond a reasonable doubt that the error did not contribute to the finding of guilty. Chapman v. California, 386 US 18, 87 S Ct 824, 17 L Ed2d 705 (1967); People v. Smith, 38 Ill2d 13, 230 NE2d 188. When we say that the error did not contribute to the finding of guilty, we mean that the erroneously admitted evidence did not prove an element of the crime not established by other properly admitted evidence.

In the present case, not only does the testimony complained of not relate to an element of the offense charged and not proven by other evidence properly admitted, the testimony in question does not relate to an element of the offense at all.

In support of his second contention, that he was not proven guilty beyond a reasonable doubt, defendant advances the following proposition. Since the only evidence supporting the charge against the defendant is the testimony of McLaughlin and since the defendant has denied the charge, this court can affirm the judgment of conviction only if it can find some reasonable basis for the trial court’s believing the testimony of McLaughlin and not that of defendant. The suggestion is then made that McLaughlin had ample reason to perjure himself.

This proposition is in direct conflict with the law in this State and its underlying rationale. It has long been held that it is the function of the trier of fact to determine the credibility of witnesses and the weight to be given their testimony. A court of review will not substitute its judgment for that of the trier of fact in this regard unless the evidence is so improbable or unreasonable as to leave a reasonable doubt of defendant’s guilt. The reason for the rule is obvious. The trier of fact is in a much superior position to judge credibility since it is the trier of fact and has the opportunity to view the demeanor of the witnesses, a primary factor in determining credibility. Except in cases where the evidence is improbable or contrary to human experience, or where a witness is shown to be unworthy of belief, the reasons supporting the determinations of credibility made by the trier of fact are not likely to be found in the insensitive pages of a report of proceedings. Thus the search of the record which defendant urges woud be doomed to futility. As a result, reviewing courts would be compelled to substitute their own judgment of credibility for that of the trier of fact, in direct contradiction of the established rule.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

McCORMICK, P. J. and BURKE, J., concur.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    Joan L. Tylitzki, Plaintiff-Appellee, v. Triple X Service, Inc., a Corporation, and Richard E. Hebson, Defendants-Appellants.
    Gen. No. 53,043.
    First District, Second Division.
    June 2, 1970.

      Joseph A. Bailey and Jerome H. Torshen, of Chicago, for appellants.
    Fred Lambruschi and Herbert P. Veldenz, of Chicago, for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken by Triple X Service, Inc. and Richard E. Hebson, defendants, from a judgment entered in the Circuit Court of Cook County in favor of Joan L. Tylitzki, plaintiff. After a jury trial on December 11, 1967, the court entered a judgment of $24,000 in favor of the plaintiff.

On October 23, 1962, the plaintiff was driving north in the east lane of Roselle Road in Hoffman Estates, approaching the intersection of Flagstaff Road, when her car collided with a truck driven by Richard E. Heb-son, and owned by Triple X Service, Inc. Flagstaff Road was then under construction about eighty feet from its intersection point with Roselle Road, and barricades erected about eight feet from the road caused trucks to have only nine feet in which to pull in and out. Defendant Hebson was attempting to back his truck into the nine-foot gap to get back to the construction area, and had to pull onto Roselle Road several times, blocking the road. While he was maneuvering his truck, the plaintiff was driving north on Roselle; she saw the truck and slowed down, but, according to her testimony and that of one of her passengers, the truck came right through a stop sign and collided with her car. Defendant Hebson testified that there was no stop sign; and there is also conflict in the testimony as to whether the truck was moving at all at the time of the incident.

During the trial the court, at plaintiff’s request, instructed the jury as follows:

There was in force in the State of Illinois at the time of the occurrence in question a certain statute which provides that:
All construction work upon bridges or highways within the State of Illinois shall be so performed and conducted that two-way traffic will be maintained when such is safe and practical, and when not safe and practical, or when any portion of the highway is obstructed, one-way traffic shall be maintained, unless the authorized agency in charge of said construction directs the road be closed to all traffic.
If you decide that a party violated the statute on the occasion in question, then you may consider that fact together with all the other facts and circumstances in evidence in determining whether or not a party was negligent before and at the time of the occurrence.

The instruction should not have been given. It was objectionable on several grounds. The construction was on Flagstaff; the collision occurred on Roselle. The plaintiff maintains that Roselle was directly involved since trucks working at the construction site had to use Roselle to maneuver around to reach the project. We believe that a proper interpretation of the statute is that the legislature was attempting to reach a proper means of protecting the public traveling on the road which was itself the subject of the construction. Roselle was not such a road. The statute does not state that all arterial roads coming into the construction site shall be affected by the statute’s directives; rather, it mentions “the highway,” not all highways proximately related to the site.

The instruction informed the jury that if “a party” violated the statute that fact could be considered in determining whether or not such “a party” was negligent. This rather vague reference is confusing. Furthermore, plaintiff’s complaint does not even allege that the defendants were the ones charged with control of the construction site, yet the statute quoted to the jury refers to the “authorized agency in charge of said construction.” The plaintiff was not entitled to the instruction since no foundation had been laid for it. Gerler v. Cooley, 41 Ill App2d 233, 190 NE2d 488.

We conclude that the plaintiff was not among the class of persons protected by the statute since she was not traveling on the road under construction at the time of the occurrence. Furthermore, the instruction should not have been given because there were no allegations that defendants were the parties charged with the responsibility of safety at the site; and the language of the instruction, referring to “a party,” was more confusing than helpful. We are, therefore, reversing the judgment and remanding the cause for a new trial.

Since there will be a new trial we must now consider a matter which arose at the trial and which is likely to arise again. There was much testimony regarding the extent of plaintiff’s injuries, including the testimony of a neurologist and an orthopedist, also testimony concerning the results of X rays, myelograms and electromyograms. As a part of plaintiff’s treatment psychiatry was recommended, and at trial the defendants had subpoenaed her psychiatrist, attempting to put him on the stand. The plaintiff objected, the trial court sustained the objection and quashed the subpoena, refusing to allow the doctor to testify to matters regarding his psychiatric treatment or consultations with the plaintiff.

The defendants argue that plaintiff had placed her mental condition in issue by claiming past and future pain and suffering as one element of her damages. They further contend that with such a claim they should be allowed to question the psychiatrist so that it could be ascertained whether plaintiff’s pain and suffering was truly the result of physical trauma sustained by the accident, or whether it was a manifestation of some unrelated cause. Ill Rev Stats 1965, c 51, § 5.2, provides in pertinent part:

“In civil and criminal cases, ... a patient . . . and a psychiatrist . . . have the privilege to refuse to disclose, and to prevent a witness from disclosing, communications relating to diagnosis or treatment of the patient’s mental condition between patient and psychiatrist, ....
“There is no privilege under this Section for any relevant communications ....
it
“(c) in a civil or administrative proceeding in which the patient introduced his mental condition as an element of his claim . . . .”

The question is presented as to whether a patient waives the privilege allowed by the above statutory provision when, in a civil proceeding, that patient claims damages founded upon pain and suffering. Phrased differently, the question is whether by claiming damages on the basis of pain and suffering, one ipso facto places “mental condition” in issue as an element of his claim. This precise point has been ruled upon in Webb v. Quincy City Lines, Inc., 73 Ill App2d 405, 219 NE2d 165, in which the court answered the question in the negative. The opinion noted at page 408 that “. . . the trial court held that the privilege statute applied, excluded the testimony of the psychiatrist and observed that the beneficent purposes of psychiatry can only be fully realized when the patient knows that what is revealed in the evaluation conferences or communications are free from judicial scrutiny . . .” unless he affirmatively places his mental condition into issue.

We agree that it is the affirmative aspect which should be controlling. The privilege is too important to be brushed aside when the mental condition of the plaintiff may be only peripherally involved. It is not difficult to consider the many ways in which it could be argued that mental conditions were at issue, and soon there would exist more areas of inquiry deemed exceptions to the privilege than there would be areas of inquiry protected by the privilege. The ability to observe, to concéntrate, to relate our knowledge to others in a comprehensible manner, to tell the truth under oath, and many other phenomena, are all partially dependent upon what could be called one’s “mental condition.” Thus, the extension of defendants’ argument is to urge that whenever a plaintiff who has been under psychiatric care testifies at a trial, the defendant should be allowed to call the plaintiff’s psychiatrist to the stand so that he could give a detailed analysis of the plaintiff’s mental condition to aid the trier of fact in evaluating the merit of plaintiff’s testimony. The important purpose of the creation of a patient-client privilege, however, was not meant to be paid lip service while being effectually eroded by judicial construction.

Other courts which have been faced with similar questions have also concluded that the privilege should not be deemed waived unless affirmatively asserted to be in issue. In Collins v. Bair (Ind App), 252 NE2d 448 (1969), the plaintiff sued for injuries sustained from the alleged negligence of defendant’s operation of her automobile. Plaintiff introduced many witnesses who testified that the injuries were the result of the accident. The defendant then called to the stand a chiropractor who had examined and treated the plaintiff. The trial court refused to allow the witness to testify regarding the area of plaintiff’s body which he had treated, and the reviewing court reversed and remanded, holding that the plaintiff had waived his physician-patient privilege when he affirmatively made his physical well-being a part of his claim. At page 455 in Collins, the court said: “If a patient, by way of complaint, counterclaim or affirmative defense, places in issue his physical or mental condition, then he automatically waives the privilege. . . .”

In Koump v. Smith, 25 NY2d 287, 250 NE2d 857 (1969), part of plaintiff’s complaint alleged that at the time of the accident in question the defendant’s intoxicated condition caused the collision. The defendant denied the allegations, and the plaintiff requested permission to obtain copies of hospital records relating to defendant’s physical condition after the accident. The court held that the records were privileged because the defendant had not affirmatively placed into issue his physical condition; that the simple denial of the allegation did not “affirmatively” put into issue defendant’s physical condition.

The recognition that waiver of the privilege does occur when mental or physical condition has been affirmatively placed into issue carries with it the recognition that the privilege can be abused. In Koump the court noted at page 861: “A party should not be permitted to assert a mental or physical condition in seeking damages or in seeking to absolve himself from liability and at the same time assert the privilege in order to prevent the other party from ascertaining the truth of the claim and the nature and extent of the injury or condition.” This concern over the potential abuse of the privilege, the capability of using it to prevent full disclosure of the truth, has been noted by eminent authorities. 8 Wigmore, Evidence (McNaughton Rev, 1961), § 2380a; McCormick, Evidence (1954), § 108.

We fully agree that the privilege should not be abused, and we therefore concur in the view that the privilege can be waived either expressly or by affirmatively placing in issue one’s physical or mental condition. However, one does not place into issue his mental condition by including in his complaint an allegation for pain and suffering. Unless mental well-being is specifically made an issue by the pleadings, the privilege pertains, and our trial courts should sustain plaintiffs’ objections to permitting psychiatrists to testify as to plaintiffs’ “mental condition.”

Consequently, in the instant case the judgment must be reversed and remanded to the trial court for further proceedings in accordance with this opinion.

Reversed and remanded with directions.

LYONS and BURKE, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul Riojas, Defendant-Appellant.
    Gen. No. 53,230.
    First District, Second Division.
    June 2, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Paul Rio jas, defendant, had been indicted for murder. On November 1,1965, he pleaded guilty to voluntary manslaughter and was placed on probation for three years. He later was indicted for aggravated battery and theft, and on December 19, 1967, in a bench trial, was convicted of those charges. The charge of robbery was dismissed.

On April 19, 1968, the defendant appeared in court at a hearing on a rule to show cause why the probation should not be terminated. The trial court found against the defendant and sentenced him to a term of not less than one nor more than ten years in the Illinois State Penitentiary. At the hearing the defendant testified concerning his guilty plea to the manslaughter charge that at that time he had shot one of a gang of boys who had chased him home where they threatened to throw a hand grenade into his apartment where his whole family was present.

He further testified that on May 13, 1967, after he and a friend got into a fight (which he said the friend started), he took the friend’s car keys and drove his car several blocks away, leaving the friend lying on the sidewalk. The friend testified that the defendant kicked him while he was lying on the sidewalk, took his car keys and drove his car away. He also stated that when he arrived at the hospital he discovered that $40 was missing from his pocket. He stated that as a result of the fight, he was in the hospital for a week; that he next saw his automobile in front of his house without the keys, but he later got the keys back.

On December 4, 1967, at which time defendant was 19 years old, he and a friend went into a tavern and were ordered to leave for using foul language. When they left, the defendant took a beer bottle with him, and without provocation, hit a bystander on the head with the bottle. The defendant ran, but was apprehended in a backyard. The victim was hospitalized, and the defendant denied hitting him. However, a policeman standing 40 feet away, who witnessed the incident, positively identified the defendant as the one who hit the man with the bottle. The defendant argues that he could not have been the one since the man was hit on the left side of the face and the defendant is left-handed. The police officer’s testimony disposes of that question.

At the close of the hearing the defendant’s probation was revoked and he was sentenced to the term of not less than one nor more than ten years in the penitentiary. From that judgment order this appeal is taken.

In this court the only argument made by defendant is that the sentence was excessive. His probation officer testified at the hearing that the boy had complied with the rules governing his probation for only one month after he was admitted to probation; that he made no attempt after that to report to the officer, and the officer was unable to get in touch with him. Of course, the failure to report was in itself a violation of the probation.

Counsel for the defense urges that the court was too harsh with the defendant in sentencing him; that the defendant “was married too early, but now has several children and spoke of them in court. No doubt he has a greater sense of responsibility today than he had earlier.” However, the defendant testified: “I am now 19. I had two children at the time of probation. The children are now with their mother. I am living apart from my wife.” Under these circumstances, it is difficult to see how the defendant had any greater sense of responsibility.

The sentence of the court gives the parole board great latitude. If it determines that the subject has been rehabilitated within a relatively short time it could grant him parole. It is difficult to view the defendant in the instant case as a well-adjusted young man who has had a serious injustice done him. He has committed some serious crimes and has proved to be an unwilling and uncooperative probationer.

In People v. Pompey, 53 Ill App2d 118, 203 NE2d 52, at 132, the court made the following statement:

“In our opinion, the defendant was proved guilty beyond a reasonable doubt.
“Much has been said in the books about the necessity of a defendant accused of a criminal offense having a fair trial. However, when a crime is committed the person against whom it is committed is the real sufferer. In the trial of a criminal case the State represents the People, including the victim of the crime in question. It cannot be gainsaid that the defendant standing in the dock should be entitled to all the rights protecting his interest with which the law surrounds him, but it is also true that the People represented by the State’s Attorney are equally entitled to a fair trial. The scales of justice must be evenly balanced.”

We feel that that statement of the court is applicable to the contention raised in this court. Consideration was given the injury done to the victims of the crime and to the People, and the court exercised sound discretion when it sentenced the defendant.

In People v. Taylor, 33 Ill2d 417, 211 NE2d 673, at page 424, the Illinois Supreme Court stated:

“We believe that under the now applicable statute granting reviewing courts the power to reduce sentences imposed by trial courts where circumstances warrant . . . , such authority should be applied with considerable caution and circumspection, for the trial judge ordinarily has a superior opportunity in the course of the trial and the hearing in aggravation and mitigaiton to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.”

The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS and BURKE, JJ., concur.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Lomax, Defendant-Appellant.
    Gen. No. 53,940.
    First District, Fourth Division.
    June 26, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried 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 Anthony Montelione, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Murder. Ill Rev Stats 1965, c 38, § 9-1.

JUDGMENT

After a jury trial, defendant was found guilty and sentenced to a term of 15 to 50 years.

CONTENTIONS RAISED ON APPEAL

1. The prosecutor prejudiced defendant when he referred to a statement he had agreed not to introduce.

2. The prosecutor prejudiced defendant when he offered his personal opinion of defendant’s guilt.

3. Defendant was deprived of a fair trial by the way in which the trial judge directed a verdict in favor of a codefendant.

4. Defendant was prejudiced by the trial judge’s remarks concerning defense counsel’s conduct.

5. The indictment was fatally defective in that a variance existed between the victim’s name as set out in the indictment and the victim’s real name.

We consider it significant that defendant does not question the sufficiency of the evidence to establish his guilt beyond a reasonable doubt.

EVIDENCE

It was stipulated that at about 11:00 p. m. on July 3, 1966, a police officer, responding to a call, found Charles Lanier lying on a sidewalk in Garfield Park. He was pronounced dead on arrival at Cook County Hospital, the cause of death attributable to a gunshot wound entering the left side of the back and out the right front chest cavity.

Chester Rockett, for the State:

He saw the victim at Garfield Park on July 3, 1966, around 1:00 or 2:00 p. m., where they met with ten other members of their baseball team to play a game which lasted until dark. After winning the game, they decided to drink some beer, which they purchased at approximately 8:00 p. m. They sat on some benches in the park and drank until 11:00 p. m.

The witness was standing up, when Lanier said, “Look at all the fellows behind us.” He heard a name being shouted and saw “fifteen or twenty, maybe more,” coming towards them. Lanier shouted a warning that they had a gun and got up to run when the group started shooting. Lanier was shot almost instantly, as was another fellow, Clifford Faulkner.

Love Davis, for the State:

He is a police officer, and on the date in question was assigned as a plainclothes gang officer in the 11th District. He investigated the case by interviewing several bystanders at the scene and “scouting around in the neighborhood.” He received a radio call and went to 5th and Homan where he talked with another officer and a citizen, Maurice Bell. He then proceeded to 1114 Homan where he arrested defendant and Curtis Dotson.

Maurice Bell, for the State:

On the night in question, he was at home across the street from Garfield Park and saw 15 or 20 boys coming south on Central Park from 5th Avenue. In the group he recognized defendant, whom he had known previously. Defendant was carrying a rifle.

Curtis Dotson, for the State:

He was with defendant and 15 or 20 other fellows on the evening of July 3, 1966, when they went into Garfield Park. Defendant was carrying a rifle. They came upon some fellows drinking in the park, and about 3 or 4 shots were fired. He saw someone on the bench get shot. He was with defendant later that evening when both of them were arrested.

Sylvester Lomax, in his own behalf:

On July 3, 1966, he was employed by the YMCA to keep a group called the Roman Saints out of trouble. He had been with a large group of kids at a dance at St. Philip’s, but he left the group along with Curtis Dotson and a boy called “Speedy.” At no time on that evening did he have a rifle in his hands. He did see one being carried by “Speedy” who gave the rifle to Dotson at Jackson and Homan Avenues. Defendant then separated from Dotson and “Speedy” and the closest he got to the baseball field was a block and a half. He did hear some shots coming from the area of Garfield Park.

OPINION

Defendant contends that the prosecutor prejudiced defendant on two occasions during trial. Initially he objects to the prosecutor’s reference to defendant’s confession, which the prosecutor had advised the court before trial would not be used by the State. The reference to the statement came on direct examination of defendant when the following colloquy took place:

Defense Counsel: “Q. Did you at any time between the time you were arrested Sunday and Tuesday have any sleep ?”
Defendant: “A. No, sir.”
Prosecutor: “Objection to that question.”
The Court: “Strike it.”
Prosecutor: “His confession, your Honor, the confession or any confession is not in issue here.”
The Court: “That is why I said strike it.”

No attempt was made by the State to introduce a confession or statement into evidence, and the record contains nothing further in regard to it in the presence of the jury. Defense counsel made no objection to the prosecutor’s remark. The line of questioning by defense counsel preceding the prosecutor’s above-quoted statement was objected to by the prosecutor on two occasions. Defense counsel, however, persisted in his inquiry into what may have transpired immediately subsequent to defendant’s arrest. The questioning dealt specifically with defendant’s detention and interrogation by the police.

Defendant places reliance on reversal of a conviction by another Division of this court in People v. Mwathery, 103 Ill App2d 114, 243 NE2d 429. There, a pretrial agreement not to use defendant’s statement was breached when, on redirect examination, the State’s accomplice witness testified that the reason he had made a confession was that the police had shown him a statement already signed by the defendant. Proper and timely objection then made by defense counsel was overruled and a motion for mistrial was denied. In closing argument, the prosecutor referred again to the witness’ testimony and to the defendant’s statement. This court found that the trial court’s error and the prejudicial comment by the prosecutor, standing alone, might not have required reversal had it not been for other prejudicial matters in the case.

We believe that there are significant distinctions between Mwathery and the case at bar. As we have already mentioned, that court did not consider the episode sufficient, in itself, to require reversal. Also, in Mwathery there were both timely objection and motion for mistrial, whereas at the instant trial no objection was made to the prosecutor’s remark. Thus, the point is deemed to have been waived. People v. Thigpen, 33 Ill2d 595, 598, 213 NE2d 534; People v. Sledge, 71 Ill App2d 285, 290, 218 NE2d 845. In contradistinction to Mwathery, the prosecutor’s comment here did not occur during the State’s examination of a witness or in closing argument. The line of questions being utilized by defense counsel permitted defendant to discuss his period of detention during which the statement was purportedly given. The State objected to the defense counsel’s tactic and the objection was sustained. When identical questioning continued, the prosecutor again objected and, in effect, briefly described as his ground for objection that the kind of testimony being elicited would be relevant only as to the voluntariness of a confession. We do not view this as a violation of the pretrial agreement. Further, the State’s Attorney’s comment may be considered as having been invited by defense counsel’s persistence in his improper line of questioning. See People v. Burage, 23 Ill2d 280, 283, 178 NE2d 389; People v. Thigpen, supra.

On oral argument in this court, defense counsel sought to attribute to this point federal constitutional proportions, citing Chapman v. California, 386 US 18, 23-24; and Fahy v. Connecticut, 375 US 85, 86-87. As we have already mentioned, we believe that the point was waived in its entirety for purposes of this appeal, but if this were not so, we would also conclude that the State’s Attorney’s comment did not offend the rule of those cases. The instant defendant does not argue that the evidence properly introduced was insufficient to establish defendant’s guilt beyond a reasonable doubt. We believe that it adequately did so. Based on our study of the entire record, we also believe that the prejudice complained of was harmless beyond a reasonable doubt.

Defendant also contends that the prosecutor prejudiced defendant during closing argument by offering his personal opinion of defendant’s guilt. The alleged improper comment followed the State’s summary of the evidence against defendant and was, in pertinent part, as follows:

We are here to protect even the defendant Lomax. Because if he is not guilty, ladies and gentlemen, it isn’t our job to put him in the penitentiary. But we are saying to you right now that that defendant is guilty of murder and the murder of Charles Lanier. Purely and simply that.

Although it is improper for a prosecutor to inform the jury of his individual opinion or belief of defendant’s guilt (People v. Hoffman, 399 Ill 57, 65-66, 77 NE2d 195), it is proper for him to argue or express an opinion that defendant is guilty, “where he states, or it is apparent . . . that such opinion is based solely on the evidence.” People v. Williams, 26 Ill2d 190, 193, 186 NE2d 353; People v. Vasquez, 118 Ill App2d 66, 71-72, 254 NE2d 617. The State had presented and summarized its case against defendant and we find it apparent that the prosecutor’s statement in closing argument is an opinion based on that evidence. Accordingly, we find that defendant was not deprived of a fair trial in this regard.

It is further argued by defendant that he was deprived of a fair trial when, at the close of the State’s case, the trial judge directed the jury to return a verdict of not guilty as to a codefendant. Motions for directed verdicts were presented by both defendants in camera. After ruling on the motions, the judge called the jury into the courtroom and instructed them as follows:

... at this time on motion of the counsel for defendant Willie Clemons I find that there is insufficient evidence against Willie Clemons to find a verdict of guilty, and I direct that the jury find a verdict of not guilty.

After the jury signed such a verdict, the judge stated:

Judgment is entered on the verdict to Willie Clemons, and he is discharged from the case. We will proceed then with Sylvester Lomax, . „ . „

Defendant has offered little substantive argument to support this claim, except to assert that the judge, by finding the codefendant not guilty, inferred to the jury that defendant was guilty. We do not accept this as ground for reversal. The court’s method of directing the verdict was within the statutory requirement and we find it unobjectionable. Ill Rev Stats 1967, c 38, § 115-4 (k). We also note that no objection was made to the court’s method of directing the verdict, nor did defense counsel suggest any alternative.

Complaint is also made that the trial judge repeatedly displayed hostility to defense counsel which prejudiced defendant in the eyes of the jury. The first alleged incident of error was directed at counsel for the codefendant, who was cautioned for the second time not to make speeches in the jury’s presence. The other incident was an admonition to this defendant’s counsel to keep his questions in a proper context and to refrain from making speeches to the jury. Defense counsel, by sustained conduct, brought the cautionary remarks upon themselves and cannot now claim error. People v. Smith, 66 Ill App2d 257, 213 NE2d 135; People v. Allum, 78 Ill App2d 462, 466, 223 NE2d 187. In addition, the judge’s remarks were not of such a harsh nature as to prejudice defendant before the jury. Here, again, the record discloses no objections by defense counsel. People v. Jones, 29 Ill2d 306, 194 NE2d 239.

Defendant’s final contention is that the indictment was fatally defective because it named the victim as Charles Linear, whereas the evidence introduced at trial referred to the victim as Charles Lanier. Even though there is a variance in spelling, it is clear that correct pronunciation of the two names results in practically identical sounds. In this situation, there is not a fatal variance, the doctrine of “idem sonans” being properly applicable, and the names are held to designate the same person. People v. Schneider, 360 Ill 43, 51, 195 NE 430; People v. Jankowski, 391 Ill 298, 301-302, 63 NE2d 362.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and LEIGHTON, JJ., concur.


author: JUSTICE BURKE.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Andrew Johnson, Defendant-Appellant.
    Gen. No. 54,176. (Abstract of Decision.)
    First District, Second Division.
    June 2, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos, Assistant Public Defender, of counsel), for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Paul P. Biebel, Jr., and John F. Glenville, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie Pearson, Defendant-Appellant.
    Gen. No. 54,178.
    First District, Second Division.
    June 2, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Justine I. Knipper 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 Joseph Romano, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Two indictments were returned against the defendant, Willie Pearson, one charging him with taking indecent liberties with Cora Rambert, and the other charging him with taking indecent liberties with Beverly Rambert. The indictments were consolidated, and at a bench trial the defendant was found guilty of both charges. After a hearing in aggravation and mitigation, the trial court sentenced the defendant to not less than ten nor more than twenty years in the penitentiary.

The evidence on which the conviction was obtained was testimony by Beverly Rambert, who was ten years old at the time of the trial, and Marshall Rambert, who was eight. These two children, with Cora Rambert, were present when the defendant committed the criminal acts; however, at the time of trial, Cora was in a mental institution.

The defendant raises many issues on appeal; one, that he was not proved guilty beyond a reasonable doubt. He argues that the two children were not competent to testify against him, and that the trial court committed reversible error in allowing the children to testify over defendant’s counsel’s objection. Defendant further urges that the testimony of Beverly was uncorroborated and not clear and convincing. His reasonable doubt issue is thus twofold; first, he says the children should not have been allowed to testify, and that without their testimony there would have been no case against him. Second, that even if the testimony were accepted, it does not contain the clear narration required before a court can conclude that a defendant has been proved guilty beyond a reasonable doubt.

The defendant also asserts that the trial court committed reversible error when it refused to allow his pretrial motion to suppress certain evidence (two knives) which had been taken from his bedroom. Finally, he urges that the trial court unduly restricted the cross-examination of the children’s mother, Geraldine Rambert.

The law is now well settled that it is not the age of the child, but rather the child’s intelligence, ability to comprehend the meaning of an oath, and to speak the truth which determine if the child is competent to testify. In People v. Davis, 10 Ill2d 430, 140 NE2d 675, at 436, the court said:

“If the witness was sufficiently mature to receive correct impressions by her senses, to recollect and narrate intelligently, and to appreciate the moral duty to tell the truth, she was competent. Not age, but the degree of intelligence of a child, determines the question of the child’s competency. (Shannon v. Swanson, 208 Ill 52; State v. Segerberg, 131 Conn 546, 41 A2d 101.)”

The appearance and conduct of the child on the witness stand are factors which assist in evaluating the child’s intelligence. These are factors which are obviously not subject to review, and consequently, after a trial court has ruled on the competency of a child, that ruling will stand, unless it appears that there was a manifest abuse of discretion.

The defendant does not disagree with the above principles; however, he asserts that an abuse of discretion did occur when the trial court allowed both children to testify, since he believes that neither child was qualified to do so under the Davis test. The question as to whether or not a child witness is competent to testify in cases involving indecent liberties, presents a perplexing problem, since without such testimony there would rarely be convictions. Nevertheless, a man cannot be found guilty on incompetent testimony, and the State’s “inability to produce it [proper evidence] cannot throw the door open to the receipt of improper evidence; . . . .” State v. Segerberg, 131 Conn 546, 551, 41 A2d 101, 103.

The defendant points out certain portions of the testimony of each child which he claims shows that the children were incompetent to testify. We have carefully reviewed all of the testimony given by the children, and have concluded that those isolated instances cited by the defendant in which he charged that the children were unresponsive or failed to comprehend certain questions, were very few, and in nearly all the instances the matters were cleared up by a simple rephrasing of a question. We have also found that several quotations brought to our attention are not damaging when put into context. For example, defendant’s brief contains the following regarding the testimony of Beverly:

“When asked by the State’s Attorney to identify the knife which was alleged to have been shown to her she first merely answers ‘Yes.’ When asked ‘What color was it?’ She answers, ‘It was a straight knife.’ ”

From this version it would appear that the child failed to understand the questions asked of her or was not intelligent enough to give responsive answers. However, when reading the actual testimony, quite a different impression is produced:

The Court: “And then what happened next?”
Witness: “Then he went and got the — He pulled out that knife. It was in a little — ”
Mr. Lynch: Q. “Now, will you describe for His Honor what that knife looked like, the knife he pulled out at this time.”
A. “Yes.”
Q. “What color was it, if you remember?”
A. “It wasn’t a black knife. It was a straight knife.”

From this context the child’s “Yes” does not appear as unresponsive as the defendant would have us believe. Furthermore, the child had first been asked to describe the knife, not just its color. She was then asked the color and answered that it was not black, that it was straight. This is quite different from the somewhat distorted version the defendant has set out in his brief.

Beverly indicated that she knew she was under oath and that she would be punished if she did not tell the truth. She knew her correct address at the time of trial; she knew the name and address of the school she attended; and she knew her aunt’s home address. There was testimony about some grease, and when asked if she recalled the type of container it was in, she answered, “Well, Royal Crown Hair Grease,” and indicated that the container was red. When the Assistant State’s Attorney handed her several exhibits for identification she corrected him, saying, “Wait a minute. I think these go together. That’s the the way he give it to my sister. Somebody must have tore it. That goes like that.” The Assistant State’s Attorney then indicated for the record that Beverly was correct.

The defendant stresses the fact that Beverly did not know the seasons of the year, yet when asked if she knew when winter came on, she associated it with Christmas, saying, “Sometimes it snows” at Christmas. She did know all the days of the week, and although she showed some confusion about telling time, when questioned patiently she was adequately able to express sequences in a sensible manner. We think it irrelevant that the child did not know the word “breast,” since she knew that the defendant had sucked on that part of her body which she later learned was called a breast. Defendant makes much of the point that Beverly admitted that until the day before the trial she had not known that “God will punish you” if you don’t tell the truth. The critical factor is that at the time she was on the witness stand she understood the importance of telling the truth, and it is unimportant that she only recently came to understand that fact.

We see no purpose in detailing the testimony of Marshall Rambert; it is enough to say that the objections against it are much the same as those made against Beverly’s testimony, and we find the objections unfounded for the same reasons. The boy made insignificant errors which were in no way related to his ability to tell the truth, and which did not warrant the conclusion that he was not intelligent enough to testify. He well understood what it meant to lie; he said it meant to tell a story, and when asked what he meant by that he said, “Your mother tell you not to go out and you go out, and she say, ‘Where you been?’ You say, T didn’t go out.’ ” He further indicated that he knew he would be punished if he lied.

The trial court was well within its discretion in ruling that the children were competent to testify.

Defendant also asserts that the trial judge abused his discretion and that he assumed the role of an advocate, taking the attitude of trying to assist the prosecution. That assertion is wholly unfounded. The fact is that the trial judge was dealing with children of tender years, and it was, therefore, totally proper for him to examine them to ascertain their competency to testify. We believe the judge, rather than abusing his discretion, acted quite properly under the circumstances; it would have been improper for him to have ruled before he had conducted an examination such as he did. He asked questions which, if answered unsatisfactorily, would have resulted in his ruling that the children were not competent to testify. We believe the defendant’s real complaint is that the judge elicited the truth, that the children were competent.

An alternative argument of the defendant is that even if the testimony had been properly admitted it was not clear and convincing, and that it contained contradictions. From Beverly’s testimony it appears that early in the evening of November 18, 1966, Mrs. Rambert had sent Marshall, Beverly and Cora to their aunt’s home to pick up some draperies. Marshall was seven, Beverly was nine, and Cora was eleven years old at the time. On the way home the defendant called to them from across the street and asked them to come into his apartment to see his bike which he would sell them. When they went in, the defendant (known to the children as Mr. Speedy) locked the door, took them into the bedroom, and ordered Beverly and Cora to take a bath. The girls went into the bathroom and locked the door. When they came out he ordered Beverly to remove her blouse and he sucked her breasts. He then told her to get some grease; she first refused, but when he pulled out a knife, she complied. She testified as follows:

“I went and got the grease, and he took a little grease on his hand, his finger, and he told me to go put the grease back. And when I put it back on the dresser where I got it from, he took the grease and rubbed it on my private. And then I told him it hurt, and he took his finger out. And then he called my sister Cora and told her to take off her blouse. And then when my sister took off her coat and blouse, he sucked my sister’s breast and rubbed her seat.”

Here we must point out that the defendant’s argument that there was no corroboration of Beverly’s story is based solely on a comparison with Marshall’s testimony. However, Mrs. Rambert testified that Cora was taken to a hospital for examination after the incident; that Cora’s breasts were bruised, and her nipples and vagina were red. She further testified that the girls’ blouses were disheveled and partially unbuttoned when they returned home, although they had been neatly dressed when they had left earlier.

When two police officers arrived after Mrs. Rambert’s call, they cruised the area with the children until they showed them the building in which the defendant lived. After being admitted to the apartment the police allowed the defendant to change his clothes to go to the station. While in the bedroom the officers saw the two knives in plain view and took them. Earlier the children had mentioned the two knives when telling of the incident.

Despite defendant’s protestations to the contrary, Marshall’s testimony does substantially corroborate that given by Beverly; he relates that while they were returning from their aunt’s home the defendant stopped them and asked if they would like to come into his apartment to see his bike. He states that the defendant then locked the door and took the children into the bedroom where he ordered Beverly to remove her blouse. When she refused he pulled a knife on her. Marshall did answer that the knives shown to him at the trial were not the ones he had previously seen. However, he clearly testified that the defendant had pulled a knife on Beverly, which fact was far more important than his ability as an eight-year-old to have remembered exactly what the knife looked like, especially when the incident had occurred almost four months prior to the date of the trial.

Marshall testified that the defendant had ordered his sisters to take a bath; that they went into the bathroom; that the defendant sucked his sisters’ breasts. The defendant correctly points out that when asked if defendant had displayed his privates, the boy answered that he had not. Beverly had testified at some length that the defendant exposed himself; however, she never testified that Marshall touched the defendant or even saw the defendant expose himself. She did say that the defendant exposed himself while sucking Cora’s breasts, after which he had asked Marshall to play with his privates. She never testified that Marshall complied, and in fact, it appears that he did not, since both children testified that the defendant was on the bed and Marshall on a couch facing a television. Furthermore, the defendant was not charged with having taken indecent liberties with Marshall, and when asked whether he had seen the defendant’s privates, Marshall had specifically answered he had not. We repeat, his answer is not inconsistent with Beverly’s testimony that the defendant had exposed himself. She said, “Marshall, he wanted to get out. Marshall was mad, so he turned his head. He wasn’t looking at television.” This would imply that Marshall was not watching closely the events occurring in the bedroom, and only occasionally turning to see what happened on the bed. It is thus probable that he was not looking at the time the defendant had exposed himself, and was even more unwilling to turn around when asked to come to the defendant.

While there was only limited testimony regarding placement of those present in the bedroom, we believe the above testimony satisfactorily explains what might have appeared as contradictions.

The defendant argues that the seizure of the two knives from his apartment was illegal in that the scope of the search which disclosed the knives was too broad; that the officers had no warrant with them, and thus the question is whether the search, as incident to a lawful arrest, was permissible. We would first point out that the very use of the word “search” is really inappropriate here since it connotes an active seeking out of evidence or weapons. The knives were both in plain view and were observed by the officers who were in the bedroom while the defendant changed his clothes to go to the police station.

Ill Rev Stats 1967, c 38, § 108-1(d) provides:

“When a lawful arrest is effected a peace officer may reasonably search the person arrested and the area within such person’s immediate presence for the purpose of:
a
“(d) Discovering any instruments, articles, or things which may have been used in the commission of, or which may constitute evidence of, an offense.”

In its decision in Chimel v. California, 395 US 752, the United States Supreme Court in no way renders the above statute invalid. The case does attempt to clarify “immediate presence,” and further adds that an arresting officer may seize items not only for the purpose of securing evidence of an offense, but also for the purpose of protecting himself and preventing escape. At pages 762-763 the court said:

“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, be governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee’s person and the area ‘within his immediate control’ — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.” [Emphasis supplied.]

In People v. Doss, 44 Ill2d 541, 256 NE2d 753, the Supreme Court found that a revolver and money found in the defendant’s clothing under the bed occupied by defendants at the time of arrest was clearly within the “immediate control” of the defendants, as that phrase was outlined in Chimel. In the instant case the knives were in plain view and, therefore, make a stronger case of proper seizure than that presented in Doss. The trial court properly denied the motion to suppress.

The defendant’s final complaint is that the trial court unduly restricted cross-examination of Mrs. Rambert. There had been some testimony elicited from her indicating that Cora had been the source of some difficulty; that Cora had run away on occasion, and Mrs. Rambert had reported her missing between six and ten times, although the child had always returned home at night. Cora had apparently been detained at least once in the Audy Home, and had also been expelled from public school for striking a teacher. Mrs. Rambert testified that she had punished her children for coming in late.

The State objected to the line of questioning by defense counsel; and counsel admitted that he was attempting to discredit the credibility of Cora’s report to her mother of the incident, although he had first stated he was trying to show that Cora had little moral conviction. The trial judge then sustained the objection on the ground that it was improper to impeach the credibility of one who was not even going to testify.

The defendant argues that there is a relationship between the credibility of Cora and that of the two children who testified at the trial; that Cora had fabricated the story of defendant’s activities to avoid punishment, and the other two followed her lead. The defendant then concludes that by exposing Cora’s possible reason for lying he could attack the credibility of Beverly and Marshall. This argument is rather novel and fails to take into account the basic fact that Beverly and Marshall testified at the trial and were directly subject to impeachment. Defendant’s theory that by impeaching the absent Cora he also impeached Beverly and Marshall, is based upon a very tenuous premise; namely, that the testimony of Beverly and Marshall was perjured in order to conform to the story supposedly created by Cora. If the credibility of the children was susceptible to attack it could and should have been directly attacked.

We find the trial court ruled correctly in limiting defendant’s cross-examination of Mrs. Rambert since the line of questioning was primarily aimed at impeaching the credibility of a witness who was not even present at the trial and whose version of the events was not offered in evidence. If the defendant wanted to impeach the two children who did testify he should have done so directly.

For the reasons stated, we find there were no errors committed at defendant’s trial which would require the granting of a new trial, and we further find he was proved guilty beyond a reasonable doubt. The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS and BURKE, JJ., concur.