text:
    Nels H. Erickson, Plaintiff-Appellee, v. Wagon Wheel Enterprises, Inc., a Corporation, and Henry Wilson, d/b/a Wagon Wheel Stables, Defendants-Appellants.
    Gen. No. 68-10.
    Second District.
    October 18, 1968.
    Rehearing denied November 22, 1968 and opinion modified December 11, 1968.

      ABRAHAMSON, P. J., dissenting.
    Knight and Knight, of Rockford, for appellants.
    North, North & Ohlson, of Rockford, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This is a personal injury action arising from plaintiff’s fall from a horse which was owned by the defendants. A $3,000 jury verdict and judgment for the plaintiff resulted, from which the defendants appeal.

The defendants claim as error that the court failed to direct a verdict at the close of all the evidence, that the court failed to rule as a matter of law that the plaintiff was guilty of contributory negligence, that the court failed to instruct the jury on certain issues, that the court erred in excluding from evidence the exculpatory clause contained in the document called the “SIGN IN” sheet pleaded as an affirmative defense, that the court erred in failing to enter judgment notwithstanding the verdict in favor of the defendants on the basis that the verdict was against the manifest weight of the evidence, and finally, that the plaintiff assumed the risk, and, therefore, could not recover regardless of any negligence of the defendants.

The plaintiff, age 48, had very little horseback riding experience previously and had had one lesson at the premises of the defendants two days prior to this occurrence.

While in the office, prior to the second lesson, the plaintiff signed a document called a “SIGN IN” sheet which contained an exculpatory clause. The document was as follows:

“I hereby hire one horse with bridle and saddle from the Wagon Wheel Stables located at Rockton, Illinois. I represent I have carefully and fully examined and tested the gentleness and manners of the said horse and represent I am fully capable and competent of possessing, managing and riding said animal during the period of this bailment and I hereby accept the animal as fully suitable for my requirements.
“I further represent I have carefully examined and tested the bridle, saddle and fastenings on each and find the same to be in good condition, free from defects and that the same are fully adequate for my purpose.
“I further represent I will use ordinary care in the use of the said horse and that I will not abuse, mistreat or ride said horse in a reckless or careless manner and I will use said equipment in the usual and ordinary manner.
“I further represent and agree that Wagon Wheel Stables or its agents have made no representations to me of any kind or character concerning the suitability, gentleness or the habits of said animal and I hereby assume full risk and responsibility for any accident which might happen to me, or liability for injury to any other person or persons while the said animal and equipment are under my control and in my possession.
“I further represent that Wagon Wheel Stables through its agents and employees, in my presence and with me, have fully and carefully examined and tested the said equipment, and that such examination, the equipment was free from defects at the time of this bailment.
“Now, therefore, in consideration of the representations made by me and the bailment of the said horse to me for the period of this contract by the said Wagon Wheel Stables I do hereby remise, release and forever discharge and by these presents do for myself, heirs, executors and administrators, remise, release and forever discharge the said Wagon Wheel Stables, its agents, employees or servants of and from all manner of actions, cause, and causes of action, suits, reckonings, controversies, damages, claims and demands whatsoever, in law or in equity which I now have or may hereafter in the future can or may have or which my heirs, executors or administrators, hereafter can, shall or may have by reason of any matter, cause, or thing, whatsoever, arising out of any matter or thing contained in this agreement or, in pursuance of, or arising out of or in connection with any matter or thing arising out of the bailment by me of the within described horse.
“I further represent no oral representations have been made on behalf of the Wagon Wheel Stables, that this agreement constitutes our complete understanding and that the representations made by me are true and are made for the purpose of securing the bailment of said horse and equipment under the terms and conditions hereof.”

It further contained among numerous other signatures:

“ ‘Date Name Address City or Town
6-24-66 /s/ Neis H. Erickson 3219 Belmont Rockford
/ s/ Pat Erickson ......................’ ”

A female employee of the stable told the plaintiff to sign the book that was on the table. Plaintiff and his wife testified that plaintiff asked why he had to sign since he had not signed anything two days prior on the previous lesson, and that the employee answered that if he was going to take a lesson he did not have to sign the “SIGN IN” sheet because it was for people going on a cross-country trail ride, but by this time the plaintiff had already signed it. The employee denied any conversation with plaintiff with reference to signing the sheet and testified that all riders were to sign, including those who were taking lessons. Plaintiff testified that the employee did not point out any of the language nor did she tell the plaintiff that what he was signing contained an exculpatory clause or was in the nature of a release of liability of the defendants.

The plaintiff went out into the riding ring and mounted the horse. Thereafter, the facts are in dispute. The plaintiff contends after getting up on the horse, he took his feet out of the stirrups because they were too short and was sitting astride the horse waiting for the stirrups to be adjusted. A stableman had thrown the reins of the horse over its neck. The plaintiff was seated on the horse for perhaps ten to fifteen seconds when the stableman let go of the horse. The horse jerked its head up, turned a half circle, bucked, and the plaintiff was thrown off. There was testimony that there was an open stable door, in support of plaintiff’s theory that the horse bolted toward it.

The defendants testified that the stirrups had been adjusted for the proper length of the plaintiff, that the plaintiff had placed his legs in the stirrups, and thereafter, the horse slowly started to walk while the plaintiff had his legs out of the stirrups when he slowly rolled off the horse, thereby sustaining the injury. All the defense witnesses testified that the stable doors were closed.

The court at the close of all the evidence made the following statement to the jury:

“During the course of this trial we have been speaking about a register that was signed, a piece of paper that was signed, a release that was signed. I have gone over this instrument and I believe from a standpoint of law this is not a release liability. I am not going to admit the exhibit into evidence and I ask that you disregard any testimony regarding a release.
“The sole questions are those as I said before, first, are the defendants guilty of negligence. Was the defendant free from contributory negligence and were the injuries resulting in the nature and extent thereof. I know sometimes it’s difficult to say how to put it out of your mind but I ask you not to consider that element in this lawsuit any longer. I think it is not a legal release, in other words.”

Dealing first with the issue as to whether or not exculpatory clauses are valid under the laws of this State, we hold that clauses that exculpate a person from the consequences of his negligence are sustained in absence of any statute voiding them. In Owen v. Vic Tanny’s Enterprises, 48 Ill App2d 344, 348, 199 NE2d 280 (1964), an exculpatory clause was held valid for use of gymnasium facilities.

However, whether the exculpatory clause is binding due to the circumstances surrounding its execution is one of fact which must be determined by the trier of fact, in this case, the jury. Whether or not the exculpatory clause contained in the “SIGN IN” sheet is binding upon the plaintiff in this cause of action was one of fact for the jury to determine.

In Jeute v. Jarnowski, 393 F2d 513, 515 (1968), the Seventh Circuit Court of Appeals held that the trial court erred in entering summary judgment, on the basis that the circumstances surrounding the signing of an exculpatory clause dealing with plaintiff’s action for damages when he was thrown to the ground and injured while mounting a horse, was one of fact and not a proper matter for disposition by summary judgment.

Further, see Moore v. Edmonds, 384 Ill 535, 548, 549, 52 NE2d 216 (1943).

Illinois courts subscribe to the distinction between fraud in the execution or mistake in execution and fraud or misrepresentation as to collateral matters or as to the nature and value of the consideration. When the fraud goes to the collateral matters, equity must overturn the release, but, when the fraud or misrepresentation go as to the execution of the document itself, then this matter is to be determined in law by the trier or the facts.

In Chicago City Ry. Co. v. Uhter, 212 Ill 174, 72 NE 195 (1904) at Page 176, the court held:

“. . . There are two kinds of fraud, for which such a release, as was here introduced in evidence, may be impeached. When a party, signing such an instrument, is induced to execute it by a misrepresentation of fraudulent representations as to collateral matters, or as to the nature and value of the consideration, resort must be had to a court of equity for relief. In such cases, the party fully understands what he is signing, and is aware of the nature and character of the instrument executed by him, but is deceived by fraudulent representations as to facts outside of the instrument itself. There is another kind of fraud however, for which a release may be impeached, and that is fraud, which inheres in the execution of the instrument; .... Where fraud of the latter kind exists, that is, fraud in the execution of the instrument itself, it may be shown in an action at law.”

The court further, on page 177, stated that whether or not the plaintiff knew he was signing a release or merely a receipt for medical services was a question of fact to be determined by the jury. See also, Pawnee Coal Co. v. Royce, 184 Ill 402, 414, 56 NE 621 (1900).

We hold, therefore, that the trial court erred in ruling as a matter of law that the document known as a “SIGN IN” sheet containing the exculpatory clause did not apply and that the jury could not consider it.

Whether the release was fairly obtained or executed was a question of fact for the jury to decide. This related to the circumstances of the execution of the instrument. The jury should have been allowed to decide whether the plaintiff knew he was signing a release, whether there was a mutual mistake, or whether there was deception amounting to fraud in the execution sufficient to void the document. The court did not approach the matter of the release as a chancellor in equity, having declined to rule, prior to trial, on plaintiff’s motion to strike the defendants’ affirmative defense. This was proper, because this was not a case requiring rescission in equity of an agreement signed with knowledge of its contents on the basis of collateral representations. However, the error was in removing the fact issue as to the execution of the document on trial. See also, Johnson v. Elgin, J. & E. Ry. Co., 338 Ill App 316, 328-329, 87 NE2d 567 (1949).

To guide the trial court upon the retrial of this cause of action, we shall discuss the other alleged errors committed by the trial court.

The defendants contend that the doctrine of assumption of risk applies. As basis for their authority, the defendants have cited Campion v. Chicago Landscape Co., 295 Ill App 225, 240, 14 NE2d 879 (1938), which holds that the doctrine of assumed risk is not limited to the relation of master and servant, but applies equally to any relationship voluntarily assumed, contractual or not.

In Conrad v. Springfield Consol. R. Co., 240 Ill 12, 88 NE 180 (1909), the court held at page 17:

“Appellant’s contention that appellee must be held, as a matter of law, to have assumed the risk cannot be sustained, since the doctrine of the assumption of risk is only applicable to cases arising between master and servant. . . .”

In Hensley v. Hensley, 62 Ill App2d 252, 210 NE2d 568 (1965), the court said at page 259:

“In support of his position that the doctrine has been applied in cases not involving the master servant relationship, he cites Brownback v. Thomas, 101 Ill App 81, and Campion v. Chicago Landscape Co., 295 Ill App 225, 14 NE2d 879. Assuming that these cases support defendant’s position, neither opinion cites authority sufficiently persuasive to cause this court to disregard the clear pronouncement of our Supreme Court. . . . We hold that the defense of the assumption of the risk is not available to the defendant in this case and therefore the trial court’s refusal to instruct on this defense was not error.”

We, therefore, hold that the defense of the assumption of risk is not available to the defendants in this case, and that the court did not err in so refusing to instruct the jury.

We do not consider the questions raised as to the sufficiency of evidence in view of our holding that the entire cause must be remanded for a new trial.

As this cause of action is remanded for a new trial, appropriate instructions as to the issues consistent with this opinion may be tendered and we do not here consider the instructions issues on this appeal.

This court has taken under advisement a motion filed by the plaintiff-appellee for reimbursement for printing the additional abstract and for reasonable attorneys’ fees. We hold that the abstract of the defendants-appellants was substantially in conformity with the spirit and intendment of the Supreme Court Rules and therefore the motion of the plaintiff-appellee for reimbursement and for attorneys’ fees for the additional abstract is hereby denied.

We, therefore, reverse and remand for a new trial in accordance with this opinion.

Reversed and remanded with directions.

MORAN, J., concurs.

ABRAHAMSON, P. J., dissents.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    James Smith, Plaintiff-Appellee, v. 601 Liquors, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 52,153.
    First District, First Division.
    October 21, 1968.
    Rehearing denied November 27, 1968.

      Joseph B. Lederleitner, of Chicago, for appellant.
    Lawrence L. Kotin and Seymour Ogden, of Chicago (Lawrence L. Kotin and William J. Harte, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

This is a personal injury action by a tavern patron against the corporate owner, for injuries alleged to have resulted from an assault by a fellow patron while plaintiff was on defendant’s premises. Defendant appeals from a $20,000 verdict and judgment against it, on the theory that the verdict was against the manifest weight of the evidence, and it was error to deny defendant’s motion for a directed verdict. This is not a Dramshop action.

Plaintiff testified that on April 6, 1959, at approximately 5:30 p. m., he was a customer in a tavern owned and operated by defendant at 601 East 47th Street in Chicago. Among the other customers was Sam Williams, who was also known as “Champ.” Plaintiff was approached by Williams, who asked plaintiff to buy him a drink. Plaintiff told him that he didn’t have enough money, and as he turned away, Williams struck him in the neck. After that he recalled only that he got up from the floor in a dazed condition and began to leave. The next thing he remembered was awakening in the Cook County Hospital.

Later plaintiff was removed to Hines Veterans Hospital, where he was questioned as to what happened to him, and he told them he had been attacked by a group of teenagers. He stated he did not tell them that he was in a bar when he was injured; he told them the first thing that came to his mind which he thought would gain him admission to the hospital.

Plaintiff knew very little about Sam Williams prior to April 6. He had seen Williams strike men in 601 on two occasions. He had spoken with Williams only once, about a coat which he had that Williams wanted. Plaintiff said that he saw nothing unusual about Williams on the evening of April 6. “He seemed to be a happy-go-lucky guy. ... he was always laughing and joking and pushing ... it was surprising to me when he hit me because it was no reason.” When assaulted, plaintiff was 44 years of age. At the time of the trial he walked with the aid of a crutch. His use of his hands was impaired, and his legs were numb.

Dr. James Rowe, a staff physician at Hines Hospital, testified plaintiff had been under his care from January 2, 1960, until plaintiff’s discharge in November 1960. He had with him records of both Hines and Cook County Hospital, from which he testified. In his opinion plaintiff had a compression fracture of the third cervical vertebra and a spinal cord injury at the neck region. Plaintiff had a partial loss of muscular use — a paresis or incomplete paralysis. Plaintiff was hospitalized at Hines again in August and September of 1962. It was the opinion of Dr. Rowe that plaintiff’s condition was related to a trauma, and the amount of recovery shown by plaintiff in November 1960 was the maximum amount that could be achieved.

Plaintiff’s occurrence witnesses were Walter Collins and Charles Woods, both patrons of the tavern. Collins, who was employed as a bartender in a bar near 601 Liquors, testified that he was in 601 Liquors tavern during the assault on plaintiff. He knew both plaintiff and Williams. His employer had ordered him not to serve Williams and to keep him out of the bar if possible. Collins stated that both Williams and plaintiff had been in the bar some 45 minutes previous to the attack on plaintiff, and in that time there was no disturbance. He did not see Williams strike the plaintiff, nor did he hear any fighting prior to seeing plaintiff down. The witness joined others in keeping Williams from trampling plaintiff. The plaintiff was revived with a cold towel and undertook to leave the tavern. The witness also left 601 Liquors and crossed the street to a newsstand. As he turned to leave the newsstand he again saw plaintiff down just outside the doorway of 601 Liquors. Williams was attempting to trample plaintiff in the face when the witness knocked him aside. The plaintiff was unconscious and remained that way until removed by the police.

Charles Woods stated that he knew both plaintiff and Samuel Williams before April 6, 1959. On that evening he was drinking with plaintiff at 601 Liquors. He saw Williams strike the plaintiff and knock him to the floor. Collins helped to revive plaintiff with a wet towel. When plaintiff recovered he retrieved a package from the floor and made his way toward the exit. As plaintiff reached the door, Woods saw Williams approach plaintiff from behind and strike plaintiff a blow “with all his might,” which knocked plaintiff out the door and down onto the sidewalk. The witness remained nearby until the police came and took plaintiff away on a stretcher. Woods further testified that he had been hit by Williams a couple of months before. He knew Williams’ reputation in the neighborhood in 1959 — “Champ was just known to be bad people around. . . . Everybody was afraid of Champ.”

Plaintiff’s witnesses included two Chicago police officers. Officer Richard Zaremba of the Records Division of the Chicago Police Department identified three documents as police records pertaining to the “assault on April 6, 1959, involving James Smith and Samuel Williams.” Officer Vernon B. Williams testified that he had been assigned to investigate the assault on James Smith by Samuel Williams on April 6, 1959. He stated that Samuel Williams, who was also known as “Champ,” was an ex-boxer who had a reputation in the neighborhood for viciousness. He was sought by the police at the time of the assault on plaintiff for having knocked down a rookie policeman and taken his gun. The officer stated that a week later Williams was killed during an assault in another tavern.

Witnesses for the defense included Daniel Mashkes, who operated the tavern with his brother David. Daniel knew Williams and called him by his nickname “Champ.” He testified that he was working in the tavern on April 6, 1959, and nothing unusual happened between Sam Williams and the plaintiff. David Mashkes had heard of Williams’ nickname “Champ” but did not personally know Williams. Leroy Foster, the bartender who was on duty at the time of the occurrence, knew both plaintiff and Williams — they called him the “Champ.” He did not recall seeing Williams and plaintiff involved in any kind of an altercation in 601 Liquors on April 6, 1959. He recalled Collins did ask him “for a towel when Smitty was in trouble outside. ... He took it and he went back out. ... He was outside in front of the place. ... I didn’t go outside.” Another bartender, Thomas Lockridge, who was not present at the time of the occurrence, had never seen Williams assault anyone in 601, and he never had trouble with Williams.

Defendant asserts that the verdict is rooted in manifestly unique improbabilities, and that the evidence is uncontradicted that there was no commotion or disturbance in 601 Liquors on April 6, 1959, for the 45-minute period after the purported assailant was said to have entered 601. Defendant argues that if the assailant were as dangerous as plaintiff has contended, defendant had no duty to warn plaintiff of a danger of which plaintiff was more cognizant than the defendant.

We have examined the authorities cited by both sides and conclude that the rule to be applied here is that a proprietor of a tavern has a duty to exercise reasonable care to protect his patrons from annoyance or injury while they are lawfully on the premises. Also, a master is responsible for the negligent acts of his servant or agent while acting within the scope of his employment. Lipscomb v. Coppage, 44 Ill App2d 430, 197 NE2d 48 (1963).

As to a directed verdict, the rule to be applied in Illinois is now set forth in Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967), where it is said (p 510):

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

As to manifest weight, in a jury trial a reviewing court will not disturb a verdict where the evidence is conflicting unless the verdict is clearly wrong, or unless the court is satisfied that the verdict is against the manifest weight of the evidence, and that an opposite conclusion is clearly evident. (Cardona v. Toczydlowski, 35 Ill App2d 11, 21, 180 NE2d 709 (1962).) “In the trial of a law suit, questions of one’s due care, another party’s negligence and the proximate cause of such injured party’s injuries and damages are pre-eminently questions of fact for a jury’s determination.” Kahn v. James Burton Co., 5 Ill2d 614, 623, 126 NE2d 836 (1955).

Initially, we find no merit in defendant’s contention that “there is no evidence of causal connection between the injuries and the purported assault.” The testimony of plaintiff and Dr. Eowe covers in detail plaintiff’s being taken to the hospital directly from the scene of the occurrence and his subsequent hospital and medical attention.

We believe there are two determinative issues here: (1) where the assault took place, and (2) were defendant’s agents informed as to the reputation and character of Williams as a dangerous and vicious man? Plaintiff and his two occurrence witnesses place the assault in the tavern; defendant’s bartender and one of the owners place the assault outside of the tavern. As to Williams, the evidence of plaintiff shows that the reputation of Williams in the neighborhood was that of a dangerous and vicious man; that he was wanted by the police for having assaulted a policeman and taken his gun; and that he had on two previous occasions assaulted patrons in defendant’s tavern. Witnesses for the defendant denied knowledge of any prior assaults of patrons in the tavern by Williams. Both Daniel Mashkes and Foster knew the nickname of Williams was the “Champ,” and had heard that he had assaulted a policeman. Neither of the Mashkes brothers admitted being familiar with the reputation of Williams in the neighborhood, but Lockridge, one of defendant’s bartenders, stated he knew a man named “Champ,” and that his reputation in the community was that of a bully, and he had heard of assaults made by him in the community, and he did come into 601 occasionally.

After considering this record in the light of pertinent authorities, we hold that the trial court was correct in denying defendant’s motion for a directed verdict, because the evidence does not “so overwhelmingly favor movant that no contrary verdict based on that evidence could ever stand.” Also, we believe that it was the province of the jury to resolve the conflicts in evidence, and an opposite conclusion to the verdict of the jury is not clearly evident. There was sufficient evidence to show the assault took place in the tavern, and that the reputation of Williams, the “Champ,” in that neighborhood was that of a vicious and sadistic person. There was evidence from which the jury could conclude that the defendant’s agents had been negligent in their duty to exercise reasonable care to protect its patrons from annoyance or injury while they were lawfully in the premises. Plaintiff’s inconsistent statements as to who assaulted him were before the jury for their consideration.

We conclude that the testimony here amply supports the verdict of the jury, who were the judges of the credibility of the witnesses, and the verdict of the jury is not against the manifest weight of the evidence.

For the reasons given, the judgment for plaintiff is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Warren Bryant, Defendant-Appellant.
    Gen. No. 51,630.
    First District, Second Division.
    October 22, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Marshall J. Hartman, Assistant Public Defenders, and Professor James R. Thompson, Northwestern University School of Law, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Francis J. Carey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Warren Bryant, was indicted for the unlawful sale of a narcotic drug, in violation of Ill Rev Stats 1965, c 38, § 22-3. After a jury trial he was found guilty as charged and sentenced to the Illinois State Penitentiary for a period of 10 to 15 years. Defendant appeals, contending that his oral confession was incompetent and inadmissible because he was unaware of his constitutional rights and under the influence of narcotic drugs; that the trial court erred in admitting into evidence the testimony and information received from the informers; and that, since the confession was inadmissible, other evidence presented by the State did not prove defendant’s guilt beyond a reasonable doubt.

Before trial, defendant’s counsel presented a motion to suppress all evidence obtained by the arresting officers at the time of arrest, including defendant’s oral admission, contending that the police had no reasonable cause for the arrest. The court denied that motion.

For the State, Kenneth Fason, also known as Raymond Savoy, testified that on February 17, 1965, he went to the arresting police officers and stated that he could make a purchase of narcotic drugs that evening. He was searched by the officers and given a five-dollar bill and five singles in marked money, and a radio transmitter. The two officers and Fason then went to the area of 63rd and Dorchester in Chicago where Fason entered a bar called the Zebra Lounge. He met the defendant and arranged to buy some narcotics from him. They then met about a block from the bar, where the sale took place. By use of the radio transmitter, Fason notified the police of the location and gave a description of defendant who was entering a nearby liquor store. One of the officers went to the liquor store and arrested defendant and another man. Meanwhile, Fason had given the other officer the package containing the narcotics and the remaining marked dollar bill. Fason also testified that he had been a drug addict for about ten years, although he was not an addict at the time of trial. He had been charged with selling narcotics. This charge was stricken with leave to reinstate on the condition that he cooperate with the police, and Fason had participated in controlled purchases of narcotics on several prior occasions. During the hearing on defendant’s pre-trial motion to suppress the evidence, one of the police officers stated that he had given Fason some money from time to time for rent and food.

The two police officers testified that after arresting the defendant, they took him to a fire station and searched him. The search revealed four of the marked dollar bills. Defendant was informed that he was charged with a sale of narcotic drugs, and he admitted the sale. The package recovered from Fason was found to contain heroin.

On his own behalf, the defendant testified that he did not sell drugs to Fason, and denied making an oral confession to the police officers. He testified that he and two friends went to buy some narcotics from a seller and that he purchased two five-dollar bags of heroin. He and a friend then injected themselves with the heroin, went to a bar for a beer and then went to a liquor store to buy some more beer. They were arrested as they walked out of the liquor store.

Defendant contends that his oral admission was involuntary because of the circumstances under which it was given. He claims that not only was he uninformed of his constitutional rights, but that he was also under the influence of narcotic drugs and the cumulative effect of all these circumstances surrounding the confession made the defendant unaware of the consequences of his statements, thus making his confession involuntary and inadmissible.

The admission or confession was introduced at trial in the following manner:

“STATE’S ATTORNEY: Q: Detective, at the time when you talked by the sink, with Mr. Bryant and Detective Kelly, what was said by Bryant and by yourself?
“A: I said to Warren Bryant, T have a sale of heroin on you.’ And then I showed him the money, the four one-dollar bills. And I turned to the mark that we had. And I told him that he was under arrest for sale of heroin. And he said to me, T sold the stuff to your man but I’d copped from someone else.’
“And I said to him, Tf you copped from somebody else how come all the money isn’t here and where is the other money ? ’
“And he said . . . .”

Although our Supreme Court has stated that there is “a distinction between a statement which is only an admission and one which constitutes a confession of guilt . . . .” People v. Georgev, 38 Ill2d 165, 230 NE2d 851 (1967), the distinction is immaterial for purposes of admitting an involuntary statement. People v. Knox, 90 Ill App2d 149, 234 NE2d 128 (1967).

At trial defendant’s counsel did not object to the admission on the ground that it was involuntary, and the trial court at no time ruled on that issue. Thus we must first decide whether defendant, who was adequately represented at trial, can raise this issue for the first time on appeal.

In Jackson v. Denno, 378 US 368 (1965), the United States Supreme Court held that a defendant in a criminal trial has a procedural due process right to a fair hearing and a reliable determination of the voluntariness of his confession. In Illinois, a defendant may raise the issue either by pretrial motion or when the confession is introduced into evidence by the State. People v. Strader, 38 Ill2d 93, 230 NE2d 569 (1967). And once the issue is raised, the trial court must even on its own motion conduct a hearing on the voluntariness of the statement. People v. Taylor, 33 Ill2d 417, 211 NE2d 673 (1965). However, if defendant was adequately represented at trial and did not there question the voluntariness of his confession, he cannot raise the issue on appeal. People v. Hiller, 7 Ill2d 465, 131 NE2d 25 (1955); People v. French, 33 Ill2d 146, 210 NE2d 540 (1965). We so hold in the instant case. The due process requirements set forth in Jackson v. Denno, supra, do not require that a hearing on voluntariness must be had; it is enough if defendant had a sufficient opportunity to question the confession. It is up to him and his counsel to take advantage of the opportunity.

Moreover, we find nothing in the record to indicate that defendant’s confession was involuntary. While defendant was not warned of his right to remain silent as required in Miranda v. Arizona, 384 US 436 (1966), this case was tried prior to Miranda, and in Johnson v. New Jersey, 384 US 719 (1966) the court stated that the Miranda rule would not be retroactive. Defendant was not detained for the purpose of obtaining a confession. He did not allege that he was mistreated by the police officers in any way, and in fact testified that he was at the fire station, where the admission was made, only for about 15 or 20 minutes. All the record does indicate is that when one police officer informed him that they had a sale on him, defendant agreed and tried to explain his actions.

However, defendant asserts that one who is under the influence of a narcotic drug is not mentally competent to give a full confession, citing various medical authorities and also citing Hansford v. United States, 365 F2d 920 (DC Cir, 1966). Without considering the question of whether a person under the influence of heroin is competent to give a full confession, we find that there is nothing in the record to sustain defendant’s claim that he was under the influence of narcotics. Defendant testified that he had been an addict for several years and that he had injected himself with five dollars’ worth of heroin prior to his arrest. Other than the dollar amount, no evidence was introduced to indicate how much heroin he had taken, of what quality it was, or what effect it had on defendant. Nor did defendant testify as to any ill effects from taking the drug. Defendant’s testimony shows that he had a vivid recollection of events prior to and after his arrest, and there was no indication that he was behaving in an abnormal manner when arrested. We find that the oral admission was properly admitted into evidence.

Defendant next contends that the evidence obtained from the informer is inadmissible because in violation of Ill Rev Stats 1965, c 38, § 201-51, which provides that:

No state, county or municipal officer, whose duty it is to investigate the commission of any crime or to prosecute persons accused of crime, shall employ any detective or investigator on a compensation basis other than that of time, and in no event shall compensation to such persons be contingent on the success of the investigation or prosecution. Evidence obtained in violation of this act shall be inadmissible in any court in this State for any purpose and any person employed in violation of this act shall be incompetent to testify in any such court as to any information or evidence acquired by him in such employment.

Defendant argues that since Fason was employed by the police as an investigator on a compensation basis other than time, his testimony and the evidence obtained by him were inadmissible. We find that such was not the case.

Defendant concedes that in People v. Jones, 75 Ill App2d 332, 221 NE2d 29 (1966), this court held that the above statute was not applicable to an informer. However, defendant urges that the instant case is distinguishable from Jones because Fason’s participation was much more active. Defendant points out that police had given Fason money for food, rent and incidentals, and that one of the officers testified that he had been instrumental in having the criminal charge against Fason stricken because of his help to the police in this transaction. Defendant also notes that Fason was provided with a radio transmitter, marked money, and was taken to the area by the police. We are not persuaded that these facts change Fason’s participation from the status of informer to that of an investigator within the meaning of the statute.

Statutory construction is a question of law. Anderson v. City of Park Ridge, 396 Ill 235, 72 NE2d 210 (1947). The Illinois Supreme Court has held that:

“. . . in the absence of statutory definitions indicating a different legislative intention, the courts will assume that words have their ordinary and popularly understood meanings.” Farrand Coal Co. v. Halpin, 10 Ill2d 507, 510, 140 NE2d 698 (1957).

Webster’s Seventh New Collegiate Dictionary (1965) defines “detective” as one “fitted for, employed for, or concerned with detection.” And to “investigate” is “to observe or to study by close examination and systematic inquiry.” Defendant admits in his brief, and we so find, that Fason’s primary duty was to make a controlled purchase of narcotics, and later to testify to the purchase. He was neither in the process of detection nor investigation; rather, he was a tool in the investigation being conducted by the police officers. Therefore, we find that Fason was not a detective or investigator within the ordinary meaning of these words, and the statute is inapplicable to the present situation.

Because we find that all the evidence brought out at trial was admissible, we will not consider defendant’s allegation that the evidence without the confession did not prove his guilt beyond a reasonable doubt.

For the foregoing reasons, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jerry Betts, Defendant-Appellant.
    Gen. No. 51,809.
    First District, Second Division.
    October 22, 1968.

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

delivered the opinion of the court.

Defendant, Jerry Betts, was charged with the crime of armed robbery, in violation of Ill Rev Stats 1963, c 38, § 18-2. Defendant and George Bassett were tried together. Defendant was tried by a jury, while Bassett received a bench trial. Both were found guilty of the crime, and the defendant was sentenced to the penitentiary for a term of 4 to 10 years. Defendants both appeal (see People v. Bassett, 101 Ill App2d 328 (1968)). Defendant urges reversal, contending that he was not proved guilty beyond a reasonable doubt.

The facts adduced at trial are as follows. Marvin Ray, the owner of a grocery store at 1541 W. 69th Street, Chicago, testified that on December 21, 1965, at about 12:10 p. m., he was alone in his store when a man, seemingly in a hurry, entered. This man was identified at a lineup and at trial by the grocer as George Bassett. When only a few feet from the grocer, Bassett pulled out a gun, asserting that “this is it.” As Bassett walked around the counter another man entered the store. While the other man was taking the money from the cash register and searching through the rolls of butcher paper for additional money, Bassett, holding the gun in the grocer’s back, took the change from his pockets. During the robbery several children entered the store. When the two men were satisfied that they had found all the money, they placed the grocer in the meat cooler and departed. At his direction, the children summoned help from a nearby fire station and one of the firemen released him from the cooler. Mr. Ray also testified that his store was small, that it had three aisles each about 15 feet long, and that it was well lit. The two men were in the store for about 10 minutes. On cross-examination, Ray testified as follows :

“COUNSEL FOR DEFENSE: Now, by the way, the other man that was with Bassett, you see him in the courtroom by any chance?
“A: No, I do not.”
“Q. Now, did you notice the other man that was with him, sir ?
“A: Well, the only description — I didn’t pay too much attention about the other man. I remember that this man had a brown jacket and a brown hat on, but I understand the other man has never been apprehended.
“Q: How much larger than the first man was this second man, if you remember?
“A: The second man that took the money, he was a little more slightly built and a little bit taller than Bassett.”
“Q: By the way, did you ever identify Jerry Betts as being a man who participated in the robbery ?
“A: Never saw the man.”

William Mercer, a City of Chicago fireman assigned to the nearby station, testified that about the time of the occurrence he was driving south on Justine Street, and that he had just turned off 69th Street. The grocery store was on 69th Street, just a few doors west of Justine Street, and the fire station was located on the corner. The alley behind the grocery and the fire station ran into Justine Street and was parallel to 69th Street. When Mercer approached the alley, he saw a 1960 white Pontiac in the alley, heading east toward Justine Street. The Pontiac, at an abnormally fast speed, headed across Justine Street, screeching and jerking, and backed out into Justine facing north. It then passed Mercer’s car, heading north. When he first saw the Pontiac, it was about 15 feet from him, and was about 5 feet away when it passed. The driver was the sole occupant of the car whom Mercer later identified as defendant. Mercer learned of the robbery when he entered the fire station. He identified defendant at a lineup at the police station two days after the robbery and also at trial. On cross-examination, Mercer testified that the entire incident took place in about two minutes, that he was actually looking at the driver for a total of 15-20 seconds divided into three intervals. He was able to see the driver’s face and shoulders. It was a dry day, and the car windows were closed. He testified that he could not give a detailed description of the driver but that he had told the police that the driver was a male Negro who appeared to be slightly built. However, he also told the police that he definitely could identify the man and when he saw defendant at the lineup he was absolutely certain that defendant was the man.

The arresting officer testified that after investigation of the robbery, he arrested George Bassett on December 23, 1965, as Bassett was parking his 1960 white Pontiac. The officer arrested defendant later that day.

For the defense, Luvenia Harden, 1334 S. Harding, Chicago, testified that she was the mother of four children, one of them by defendant. She also testified that on the day of the robbery defendant had spent the entire day at her apartment, leaving only once and returning in a few minutes.

Defendant argues that he was not proved guilty of the robbery beyond a reasonable doubt. We agree.

We recognize that positive identification by one witness who has sufficient opportunity for observation may be enough to support a conviction. People v. Burts, 13 Ill2d 36, 147 NE2d 281 (1958). However, “a conviction cannot be deemed to be sustained by evidence beyond a reasonable doubt if the identification of the accused was vague, doubtful, and uncertain. (Citations omitted.) And, where, as here, the identifying witnesses have never before observed the accused, the attendant circumstances, including the opportunity for definite identification, must be carefully weighed and considered.” People v. Cullotta, 32 Ill2d 502, 504-505, 207 NE2d 444 (1965).

In the instant case, Marvin Ray, victim of the robbery, testified that both robbers were in his store for about 10 minutes, and he positively identified George Bassett as the man who held the gun to him. While stating that he didn’t pay as much attention to the other man, he watched him go through the cash register and search rolls of paper for additional money, in a small, well-lit store. Yet he testified that he had never seen defendant prior to trial, and that he understood that the second man had never been apprehended. He also testified that he was not frightened, and described the second robber in some detail, observing that he wore a brown coat and brown hat, and that he was taller and thinner than Bassett.

William Mercer was definite in his identification of defendant as the driver of the automobile emerging from the alley. However, he was able to observe the driver for only a short period of time, and during that brief period, either or both cars were always moving. He had to look through the windshields of both cars, and was able to see only the driver’s head and shoulders, most of the time in profile. Finally, Mercer’s identification would only place defendant in the alley at the time of the robbery. We find that the grocer’s absolute statement that he had never seen defendant must negate any inferences that may be drawn from the qualified identification made by Mercer.

The only occurrence witness testified that the defendant was not involved in the crime. A witness with far less opportunity to observe than the eyewitness gave testimony which placed defendant in the immediate neighborhood of the crime. Since the inference of defendant’s actual participation must be drawn from that testimony, we find that the State did not meet its burden of proving the defendant guilty beyond a reasonable doubt.

Accordingly, the judgment of the Circuit Court is reversed.

Judgment reversed.

BURKE, P. J., and LYONS, J., concur.

       The record indicates that defendant was seated alongside George Bassett at the defendant’s table in the courtroom at this time.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. George Bassett, Defendant-Appellant.
    Gen. No. 51,811.
    First District, Second Division.
    October 22, 1968.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Marshall J. Hartman, Assistant Public Defenders, and Professor James R. Thompson, Northwestern University of Law, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, George Bassett, along with Jerry Betts, was indicted for armed robbery in violation of Ill Rev Stats (1963), c 38, § 18-2. Both men were tried together. Betts was tried by a jury, while defendant waived a jury and received a bench trial. Both were found guilty of the crime charged, and defendant was sentenced to a period of three to five years in the Illinois State Penitentiary. He appeals that judgment and sentence. His sole assignment of error is that remarks made by counsel for both defendants in making a pretrial motion on behalf of Betts for severance from the defendant carried with them such a prejudicial import of guilt that it was impossible for him to receive a fair trial.

The facts adduced at the trial are set out in detail in our companion opinion (see People v. Betts, 101 Ill App2d 322 (1968)) and it is not necessary to repeat them here.

The pertinent portions of the pretrial motion for severance and the accompanying discussion are as follows:

DEFENSE COUNSEL (Representing Both Defendants) : “Judge, at this time I would like to make a motion on behalf of the Defendant, Jerry Betts for a severance from the Defendant, George Bassett and I am asking leave to make this motion orally. I did not prepare a written motion and I ask the State’s Attorney to waive a written motion.”
STATE’S ATTORNEY: “We will waive it.”
DEFENSE COUNSEL: “Bearing in mind the basic rule in requesting a severance, it is within the formal discretion of the Court, the fair play rule that the defendant be entitled — be given a fair trial. I think there would be some question as to whether or not the defendant Jerry Betts could get a fair trial if he were tried with his codefendant George Bassett and I think that the — I can apprise your Honor with the case, I think the evidence will reveal that Betts’ involvement in the case or his implication in this case stems from and because of the codefendant George Bassett.”
DEFENDANT BASSETT: “I object.”
DEFENSE COUNSEL: “I am the lawyer here. Be quiet. I am talking to the Court now.
“Now, during the course of the investigation of the charge of armed robbery against the defendant Bassett, there was an interview or a conversation with a police officer who was assigned to investigate this case. And during their discussion, there were allegations or references to the defendant Bassett. At that time, the substance of the conversation was that Bassett said that there was a possibility that Betts was involved in this robbery; that Bassett possibly had— Betts possibly had a second car — second pair of keys to the car which was allegedly used in the robbery. And that because of this, of course, that the police officers continued to make their investigation and implicated Betts in the robbery. This is the reason.”
THE COURT: “I don’t know whether the statement is admissible, one against the other, outside of his presence. You intend to use any such statement?”
STATE’S ATTORNEY: “I don’t know. These are statements that counsel has discovered in his investigation.”
DEFENSE COUNSEL: “Well, they are in the police report and it is what this police report shows. That’s how he is involved. Of course, there is a question of identification.”
THE COURT: “I don’t know if those statements would be admissible, Bassett against Betts outside of Betts’ presence.”
. . . DEFENSE COUNSEL: “According to the information which I think is contingent in the police report, Bassett labeled Betts as being involved in this robbery. He says he possibly participated in this robbery and he tells why he thinks he participated in this robbery and because of this, the police make an investigation, continue their investigation and because of that, they apprehend him.
“I think it certainly would be a question of whether or not the defendant Betts would get a fair trial because of it, that he was — that as a result of the conversation or the result of the investigation, he is related by Bassett to the police. I don’t think he is.”
THE COURT: “I don’t think that that would be admissible.”
“You intend to use any such statements of that nature, gentlemen?”
STATE’S ATTORNEY: “Judge, let me say that I don’t see how there would be any conflicting defense. Our file indicates that both defendants denied their participation in the crime.”
DEFENSE COUNSEL: “That wouldn’t make any difference.”
STATE’S ATTORNEY: “I don’t see how you can use one defendant’s denial, T didn’t do it, but he did it.’ ”
THE COURT: “All right. You will not use it. Motion for a severance denied.”

After denial of the motion for severance, trial commenced. No statements made by defendant were introduced during the course of the trial.

Defendant concedes that denial of the motion for severance was proper. However, he contends that the statements made by his own counsel on a motion for severance had a substantial effect on the trial court’s verdict. He argues that the manner in which his counsel presented defendant’s statements made it seem as though defendant had confessed the crime and had implicated Betts. He further contends that the trial court could only believe that defendant’s own attorney thought him to be guilty; and that consequently, the judge could not give him a fair trial. We do not agree.

Counsel’s statement made in behalf of his motion for severance in effect claimed that there was information in the file that defendant had denied committing the crime while implicating Betts. We are puzzled as to how such a statement would lead a trial judge to believe defendant guilty or even to believe that counsel thought him to be guilty of the crime charged. During the colloquy, the State’s Attorney indicated that both men denied participation in the robbery, and characterized defendant’s statement as: “I didn’t do it, but he did it.” We believe that to have been a fair summation of counsel’s argument regarding defendant’s alleged statement on the motion for severance. No possible prejudice could have occurred to defendant as a result of that argument. Counsel’s conduct throughout the trial was commendable, and defendant received a fair trial and more than adequate representation.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

BURKE, P. J. and LYONS, J., concur.


author: MR. PRESIDING JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Felder and Anthony Thomas (Impleaded), Defendants-Appellants.
    Gen. Nos. 51,821, 51,822.
    First District, Second Division.
    October 22, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Marshall J. Hartman and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

James Felder, his wife Anita Felder, and Anthony Thomas were tried before a jury for the crime of armed robbery. James Felder and Anthony Thomas were found guilty as charged and each was sentenced to a term of seven to fifteen years in the penitentiary. Their appeals have been consolidated. The trial court directed a verdict for Anita Felder at the close of the State’s case.

The record shows that on the morning of Sunday, February 20,1966, Herbert Alpert was in his grocery store on south Calumet Avenue in Chicago. With him were his daughter and three men. Shortly after 8:00 a. m. two men entered the store and announced a holdup. One of the men, later identified as James Felder, carried a sawed-off shotgun and forced Miss Alpert away from the cash register and toward the rear of the store; the other man, later identified as Anthony Thomas, took money from the register. Felder’s attention was momentarily distracted and one of the men who had been in the store wrested the shotgun from Felder and held him at bay. Thomas fled with $265 in cash.

The police were summoned and James Felder and several of the other persons present were questioned; a description of Anthony Thomas was given to the police. A “door-to-door” search was made of the immediate area and Thomas was found in an apartment on south Michigan Avenue with Anita Felder. Thomas was placed under arrest and was returned to the Alpert store where he was identified as one of the holdup men. The officers returned to the apartment, which they then searched, and $262 was recovered from the apartment and from the person of Anita Felder. Anita Felder was at this time placed under arrest and taken into custody.

All three defendants were arraigned on March 15, 1966. In response to questions of whether they were represented by counsel, both James Felder and Anthony Thomas replied that the “Lord God of Israel” was their lawyer. James Felder also denied being “James Felder,” and stated he was “Simeon Ben Israel.” Counsel was appointed for both men, as well as for Anita Felder, and the case was assigned for trial.

On April 7, 1966, defense counsel moved that the court order a behavior clinic examination of James Felder and Anthony Thomas. A report was returned on May 10th showing that, while the two men were suffering from “sociopathic personality disturbance,” they knew the nature of the charge against them and were able to cooperate with counsel. When the case came on for trial on May 24th, the defense counsel again filed a motion before the court to “impanel a jury .... to inquire into the sanity of the said defendants” on the ground that counsel had attempted to interview them, but that they were not able to cooperate with him and did not know the nature of the charges against them. Defense counsel stated to the court that it appeared both men were suffering from “auditory and visual hallucinations of a religious — a very severe religious nature.” The motion was denied and the cause proceeded to trial.

The State’s case was presented substantially as is set out above. During the examination of one of the arresting officers concerning the arrest of Anita Felder and the search of the apartment, defense counsel raised an objection and made an oral intratrial motion to suppress any evidence found as a result of that search. The motion was resisted on the ground that it was untimely, the State arguing that defense counsel had been informed before the trial commenced that the State intended to introduce the matters found in connection with the search as evidence. The motion was denied.

Anita Felder was called as a witness for the defense, expressly for the purpose of showing that James Felder was not competent to stand trial. She stated that she had been married to James Felder for two years and that his religious beliefs and overall attitude had changed approximately five months prior to the trial. James Felder “found out who he was and who his God was.” Anita Felder further stated that her husband was a Hebrew, that he was “Simeon Ben Israel,” and that his temple was his mind. The witness stated, among other matters, that she was unable to communicate with Felder, as such, but only with “Simeon Ben Israel.”

James Felder testified in his own behalf. His entire testimony revolved around his religious beliefs and experiences, and related to his “true identity” as a Hebrew, the “second son of Jacob from the 12 tribes of Israel.” He testified that “James Felder is dead ... he gave up the ghost.” Felder further testified that he knew nothing of the crime of which he was being charged, and stated that he was aware of being charged with a crime which he did not commit. Anthony Thomas did not testify, nor did he offer any other evidence in his own behalf.

After James Felder’s testimony the court recessed for lunch. That afternoon the jury was released until the following Tuesday, over the Memorial Day weekend. After the jury had been released, the court requested of defense counsel whether he desired a competency hearing as to James Felder. Counsel answered in the affirmative, and a hearing was set for the following Tuesday morning.

On Tuesday morning the court instructed prospective jurors as to the purpose of, and the law governing a competency hearing. The clerk was ordered to swear the jurors and to call twelve of them to the jury box. A recess was then taken, and the court and counsel appeared in chambers. After some discussion, the court ordered that the jury which was called for the competency hearing be dismissed, that James Felder be denied a competency hearing and that he be returned to the “status quo.” The apparent reason behind the court’s action in this regard was that defense counsel stated to the court that the competency hearing was to be held on the court’s own motion, whereas the court was of the opinion that the law did not require a hearing “any time either side brings up the subject.”

Appellants maintain that the trial court committed error in denying their intratrial motion to suppress the evidence seized from the apartment where Anthony Thomas and Anita Felder were found, for the reason that the defense was taken by surprise when the State indicated it would attempt to introduce the evidence at trial. We disagree.

The record shows that counsel was made aware of what evidence the State intended to introduce at trial, as is indicated by a discussion which took place between counsel at the time the motion to suppress was made. The argument is raised, however, that defense counsel was under the erroneous impression that the apartment was searched and the evidence seized at the time when both Anthony Thomas and Anita Felder were arrested, whereas they were not arrested at the same time, the search and seizure taking place when Anita Felder was later arrested. The fact is that defense counsel knew, prior to trial, what evidence the State intended to offer. Under the circumstances, no timely motion to suppress having been made, defendants waived the right to object to the introduction of the evidence at trial. (See Ill Rev Stats 1965, c 38, par 114-12.) The trial court did not commit error in denying defendants’ intratrial motion to suppress evidence.

The case of People v. Thomas, 88 Ill App2d 71, 232 NE 2d 259, cited by defendants in support of their position, is not in point for the reason that in Thomas, the intratrial motion to suppress was held to have been timely made, the defense counsel having had no advance information that certain evidence seized from defendant’s home was to be introduced at the trial. Defendant there was truly surprised and the court properly held the intratrial motion should have been allowed and defendant granted a hearing thereon.

Appellants’ second point is that they should have been allowed a complete hearing on the question of whether they were competent to stand trial. It is well settled that where a doubt arises, whether from suggestions of counsel, testimony heard by the court, or the like, as to the ability or competency of the accused to stand trial, it is the duty of the trial court to impanel a jury in order to determine whether the accused is able to cooperate with counsel and understand the nature of the charge against him. People v. Baker, 26 Ill2d 484, 187 NE2d 227. However, the doubt which arises must be a bona fide doubt, and it is consequently within the trial court’s discretion to determine whether a particular set of facts warrants a sanity hearing. See People v. Milligan, 28 Ill 2d 203, 204, 190 NE2d 753; Ill Rev Stats 1965, c 38, par 104-2(b).

In the case at bar, at the suggestion of the trial counsel and in light of the representations made by James Felder and Anthony Thomas at the arraignment that the “Lord God of Israel” was their attorney, the trial court properly ordered that they be examined by a psychiatrist to determine whether they were able to stand trial. The report showed that both men were able to stand trial. Defense counsel thereafter moved for a complete hearing on the question, which motion was denied by the court.

We are of the opinion that the trial court did not abuse its discretion in denying the motion, for the reason that the court had before it favorable reports by a psychiatrist as to the ability of both men to stand trial and could reasonably have concluded that there was no bona fide doubt raised as to their competency to stand trial. See People v. Milligan, 28 Ill2d 203, 204, 190 NE2d 753; Ill Rev Stats 1965, c 38, par 104^2 (b).

However, it is clear that during the course of the testimony of James Felder and Anita Felder, doubt arose in the mind of the court as to the ability of James Felder to stand trial. At the close of Felder’s testimony, the court inquired of defense counsel, without a motion having been made therefor whether counsel desired a sanity hearing for James Felder. A hearing was scheduled for the following week, but was not held. We are of the opinion that, under these circumstances, the court should have allowed a hearing on the question of the competency of James Felder to stand trial. People v. Baker, 26 Ill2d 484, 187 NE2d 227.

For the foregoing reasons the judgment against defendant Anthony Thomas is affirmed. The judgment against James Felder is reversed and the cause as to him is remanded for further proceedings not inconsistent with the views expressed. See People v. Thompson, 36 Ill2d 332, 223 NE2d 97; People v. McDowell, 37 Ill2d 258, 226 NE2d 25.

Judgment against Anthony Thomas affirmed. Judgment against James Felder reversed, and the cause as to him remanded with directions.

McNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    Henry DeCicco & Co., et al., Plaintiffs-Appellees, v. Abraham Drucker, Herman Drucker, City of Chicago, a Municipal Corporation, C. E. Pappas, C. J. Parr and Brunswick Corporation, Defendants, Abraham Drucker and Herman Drucker, Defendants-Appellants.
    Gen. No. 51,969.
    First Judicial District.
    October 31, 1968.
    Rehearing denied November 26, 1968.

      Abraham Drucker, of Chicago (Sidney Z. Karasik, of counsel), for appellants.
    Vincent F. Lucchese, of Chicago (David Brandwein, of counsel), for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

This is an action to foreclose a mechanic’s lien claim for labor and materials furnished by plaintiff to paint, decorate and repair the interior of a building housing a bowling alley. At the conclusion of a bench trial conducted by a magistrate, a finding was made that certain defendants owed plaintiff a balance of $1,530 for said work, and judgment was entered thereon. A decree of foreclosure was entered whereby the property would be sold to satisfy the judgment. From that judgment and decree this appeal is taken by defendants Abraham and Herman Drueker, the owners of the premises.

We do not detail the facts because an issue of whether all necessary parties were before the court has been raised, which, in our opinion, requires a retrial of the case.

Vera Drucker, wife of one of the owners, was not named as a party defendant in the original complaint. Although she was so named in the second amended complaint, she was not served with summons until November 18, 1966, which was after the trial and after the date of the final judgment and decree of foreclosure. Nevertheless, the foreclosure decree of November 9, 1966, provided “that the Sheriff of Cook County shall retain out of the proceeds of the said sale, as fees, a sum sufficient to satisfy dower rights of defendant, Vera Drucker, disbursements and commissions, and shall pay all costs to the persons entitled to receive the same.”

Since Vera Drucker was not properly before the court, the decree of foreclosure was defective. While not an owner of the premises, Mrs. Drucker nonetheless had a dower interest therein by virtue of her being the wife of one of the fee owners.

Section 1 of the Mechanics’ Lien Act, Illinois Revised Statutes, chapter 82, provides that such a lien “shall be superior to any right of dower of husband or wife in said premises: Provided, the owner of such dower interest had knowledge of such improvement and did not give written notice of his or her objection to such improvement before the making thereof.” Since there is neither allegation nor proof in the record to the effect that Mrs. Drucker had knowledge of the work performed by plaintiff, it would follow, as plaintiff in fact concedes that plaintiff’s lien is not superior to the dower interest. The question, then, is whether this dower interest is properly protected by the decree of foreclosure which merely commands the sheriff to retain from the proceeds of sale “a sum sufficient to satisfy dower rights of defendant, Vera Drucker.” We are compelled to answer this question in the negative.

As previously noted, Mrs. Drucker was not served with summons until after the entry of the decree of foreclosure. Section 11 of the Act specifically provides that the plaintiff shall make all interested parties defendant, “and summons shall issue and service thereof be had as in other civil actions.” This section further defines such interested parties as including “all persons who may have any legal or equitable claim to the whole or any part of the premises.” It would follow that the spouse of the owner is a necessary party in a suit to enforce a mechanic’s lien, and it has been so held. Anderson v. Gousset, 60 Ill App2d 309, 311, 208 NE2d 37 (1965); Leffers v. Hayes, 327 Ill App 440, 448-451, 64 NE2d 768 (1945); Love, Illinois Mechanics’ Liens, par 82, p 239 (2nd ed 1950).

On the basis of section 11 and the cases decided thereunder, it is the opinion of this court that Mrs. Drucker had a right to participate in the proceedings below, and to defend her dower interest. It is no answer to say that the decree of foreclosure protected her, for there is nothing therein which even purports to fix, or establish a basis for fixing the value of her dower interest. Moreover, the court would not even have power to adjudicate the value of Mrs. Drucker’s dower interest without her having had opportunity to plead and offer evidence on that question, as well as on any other issue concerning plaintiff’s claim against the property.

That none of the other defendants objected in the trial court to proceeding without Mrs. Drucker is immaterial, since none of them has the power to waive her rights. We believe that Leffers v. Hayes, supra, at pages 450-451 is dispositive, for there, where a similar situation was presented, it was said:

“Under the record before us, our conclusion is that the wife of the defendant was a necessary party, and it was error to proceed without her. (Hauser v. Power, 351 Ill 36, 39.) . . .
“Moreover, as the defendant’s wife was a necessary party, the proper procedure was not to dismiss her, even on her own objection or motion, but to find and adjudicate her rights in the decree. Appellee’s claim here that she was not a necessary party is inconsistent with his position taken in the trial court by making her a party, and his further contention that appellant cannot represent her on that question in this court, and that she alone could do so, has no bearing on the issue. The court will upon its own motion take notice of the omission and require the omitted necessary party to be made a party to the suit. (Gaumer v. Snedeker, 330 Ill 511, 515; Hauser v. Power, 351 Ill 36.) ” (Emphasis added.)

We limit our opinion to the facts of this case and do not rule on a case in which the mechanic’s lien foreclosure proceedings make no attempt to affect the interest of a spouse. See Anderson v. Gousset, supra, 312.

Our views regarding the failure of Mrs. Drucker to be before the court, however, do not apply to the failure of Christine Pappas, a colessee, and Homer Pappageorge, an assignee of the lease, to be before the court. It appears that this lease was terminated before the entry of the final decree, and therefore those claiming thereunder would have had no interest in the premises at the time the foreclosure was ordered. Thus, they are not necessary parties and their absence would not impair a decree.

In order to facilitate the retrial, we consider certain other issues which have been raised.

In urging a reversal of the judgment below, defendants contend, inter alia, that there was a fatal discrepancy in the identification of the “contractor” as disclosed by the agreement sued upon, by the two separate claims for lien, and by the original and the second amended complaint. It is argued that the contract was entered into by an individual, namely, “Henry De Cicco, Painting and Decorating Service,” and that the plaintiff partnership is an entirely different entity which cannot be considered to be the “contractor.” We cannot agree with this contention. The fact that Henry DeCicco had a partner, not apparent from the firm’s letterhead or from the original claim for lien, is in no way fatal to his rights or to the rights of the partnership. A partnership may adopt the name of but one of its partners in its firm name, though it may be competent to establish by parol proof that a contract in that name is that of the partnership. Daugherty v. Heckard, 189 Ill 239, 245, 59 NE 569 (1901); Greenleaf v. Feinberg, 210 Ill App 271, 282 (1918). In any event, none of the defendants was prejudiced or seriously misled by virtue of his not having previously known of the interest in the business of E. Cario, Mr. DeCicco’s partner.

Further challenging plaintiff’s basic right to claim a lien on the facts presented, defendants argue that painting and decorating, and the making of repairs incidental thereto, are not lienable because of the relatively impermanent nature of such work. While it is said in Love, Illinois Mechanics’ Liens, par 39, pp 103-104 (2nd ed 1950), that a painting or decorating contractor may have great difficulty in establishing a lien right against a landlord’s estate on the basis of his contract with the tenant, not only because of the need to prove that the landlord authorized or knowingly permitted the work, but also because of the temporary nature of the improvement, we see no reason to deny the right to claim a lien for painting and decorating under the circumstances here. Even in the treatise cited above, the author concludes that where such a contract is made directly with the landlord, “no reason appears why the contractor may not establish a lien against the owner’s title for this type of labor or service.” Ibid., pp 104, 155. Such was the holding of Martine v. Nelson, 51 Ill 422, 423 (1869), where it was said:

“It is first insisted, by counsel for appellant, that house-painters are not within the protection of the lien law, because, it is said, they do not, in the language of the statute, ‘furnish labor or materials for erecting or repairing’ a building.
“This position is entitled to little consideration. The argument is, that the painting of a house is merely its coloring, and not a part of its erection, which, it is said, consists in lifting its walls into the air. But when we consider the object of the law, nothing can be plainer than that the legislature designed, by this act, to cover all labor or materials which the builder may choose to employ in finishing his house. If the builder protects the walls of his house from the action of the elements by covering them with a coat of paint or stucco, is it reasonable to say that he has not used these materials in erecting his house? The urging of such arguments is labor lost.” (Italics in original.)

If the first painting of a newly constructed home is lienable, then we see no reason to exclude a subsequent painting to support a similar lien, particularly since the Mechanics’ Lien Act does not distinguish between “building, altering, repairing or ornamenting” an improvement. Ill Rev Stats c 82, § 1. And where a landlord could subject his interest to a lien where he himself contracts for the painting and decorating of his premises, his interest should be no less vulnerable to such a lien where his tenant, with the authority or acquiescence contracts for such work.

For the reasons stated, the cause is reversed and remanded to the trial court for further proceedings consistent with the views expressed herein.

Reversed and remanded.

ABRAHAMSON, P. J. and DAVIS, J., concur.


text:
    Raymond Etheridge, Plaintiff-Appellant, v. William M. Cooley, d/b/a William M. Cooley & Associates, William F. Hildeman Co., a Corporation, Rinkema Electric, Patricia A. Cooley, as Executrix of the Estate of William M. Cooley, Deceased, Edward Borre and Gerald Rinkema, Defendants, and St. John’s United Church of Christ, Defendant-Appellee.
    Gen. No. 52,623.
    First District, Second Division.
    October 22, 1968.

      Piacenti, Cifelli & Creswell, of Chicago (Conrad W. Sanders, of counsel), for appellant.
    Valukas and Depke, and Andrew J. Farrell, of Chicago, for appellee.
   MR. PRESIDING JUSTICE BURKE

delivered the opinion of the court.

This action was brought under the Structural Work Act (Ill Rev Stats 1961, c 48, par 60-69) to recover damages for personal injuries sustained in a fall from a scaffold on which plaintiff was working at a construction site. The trial court entered summary judgment for defendant St. John’s United Church of Christ, the owner of the premises upon which the construction was taking place, on the ground that St. John’s exercised no supervision or control over the construction. Plaintiff maintains the trial court erred in entering the summary judgment as an issue of fact was created by the pleadings and the other papers considered in support of the motion for a summary judgment holding that St. John’s was not “in charge of” the construction.

It appears from the pleadings, affidavits and depositions that in April 1962 St. John’s United Church of Christ owned a parcel of real estate in Chicago Heights, upon which the Church’s congregation voted to erect a church building. A building committee was formed, among others, and was given authority to “see to the formulation of the architectural plans and the letting of contracts and the completion of the church edifice.” The building committee engaged defendants Cooley and Borre & Associates to render architectural and supervisory services in connection with the erection of the building. The committee also entered three additional initial contracts with building and trade contractors to perform other services with respect to the erection of the building: D. J. Degenhart Construction Company (plaintiff’s employer) was engaged to perform the structural work of the building; Rinkema Electric was engaged to perform electrical work; and William F. Hildman Company was engaged to install the plumbing and heating systems. A fourth contract was entered by the building committee with a decorating contractor after the building had been substantially completed.

The duties of the building committee, after the letting of the initial contracts, consisted of dealing with two architects from the Cooley and Borre office who were assigned to the supervision of the construction, and resolving questions which arose from time to time as to the interpretation of the contracts, the nature and quality of the work being performed. The committee also had power to accept or reject suggestions made by the architects with respect to changes or substitutions in the building plans or materials. The pastor of the Church stated in his deposition that he was a member of the building committee, that supervision of the construction was carried out by the architects on a weekly or a biweekly basis, and that he, the pastor, accompanied the architects on several of the supervisory tours. The architects’ responsibility was to oversee the construction and to correlate the activities of the contractors.

The Degenhart contract, in addition to making provision for such matters as acceptance or rejection of work, approval of plans or revisions thereof, etc., by the architects, provided that the owner be required to carry builder’s risk insurance and that the owner have the right to accept or reject the contractors’ insurance carriers; the contract also reserved to the owner the right of letting other contracts and providing labor and materials not therein provided.

Summary judgment should not have been entered since a genuine issue of material fact was raised by the pleadings and the other matters filed in connection with the motion for summary judgment. Ill Rev Stats 1967, c 110, par 57 (3); Palier v. Dreis & Krump Mfg. Co., 47 Ill App2d 334, 198 NE2d 521. The owner of land who supervises or retains the right to supervise the construction upon his premises is said to be “in charge of” the construction within the meaning of the Structural Work Act. Ill Rev Stats 1961, c 48, par 69; Claffy v. Chicago Dock & Canal Co., 249 Ill 210, 94 NE 551; Kobus v. Formfit Co., 35 Ill2d 533, 221 NE2d 633. The supervision may either be carried out by the owner himself, or the duty may be delegated to an agent. See Claffy v. Chicago Dock & Canal Co., 249 Ill 210, 222.

The record in the instant case reveals that the congregation of St. John’s United Church of Christ delegated authority to the building committee to initiate and carry out the erection of the church building. The committee was empowered to enter contracts for this purpose, to deal with the architects and contractors, to interpret the contracts and settle disagreements, and the like. No general contractor was engaged by the committee whose primary function it was to retain subcontractors and oversee the construction. On the contrary, the building committee engaged, through separate and independent contracts, individual contractors to perform the work necessary for the completion of the church building and further retained an architectural firm to supervise and correlate their activities. There is evidence in the form of a letter written by Cooley and Borre to Hildman Company, which indicates that the architectural firm acted as a link between the building committee and the contractors; whether Cooley and Borre were independent contractors or agents of the church in the supervision of the construction was therefore a question to be determined by the trier of fact. It would appear that the building committee had the final decision in all matters pertaining to the construction of the building. It should also be noted that the church was required to carry builder’s risk insurance as well as the other forms of insurance coverage which related to the construction industry. Under the circumstances it cannot be said as a matter of law that St. John’s United Church of Christ was not “in charge of” the construction of the church building.

For these reasons the judgment is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed.

Judgment reversed and cause remanded with directions.

McNAMARA and LYONS, JJ., concur.


author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Werhollick, Defendant-Appellant.
    Gen. No. 52,445.
    First District, Second Division.
    October 22, 1968.

      Block, Levy & Becker, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

Defendant, William Werhollick, was tried before a jury and convicted for the offenses of unlawful possession and sale of a narcotic drug, i. e., marijuana. He was sentenced by the court to the penitentiary for a term of from not less than ten (10) nor more than ten (10) years and one (1) day as to the sale, and to a term of from not less than five (5) nor more than ten (10) years for possession, both sentences to run concurrently. He appeals.

The facts of the case involved the controlled purchase of narcotic drugs from defendant through one Joseph Bodnar, a police informer, during the late evening hours of September 7, 1966. Testifying as the principal witnesses in behalf of the State were the informer as well as Police Detectives Stiglich, Reynolds and Buffo, all of whom had been in proximity to the scene of the alleged offenses and whose accounts at trial were corroborative in all material respects. The contentions asserted by defendant on this appeal focus upon the questionable credibility of the police informer’s testimony and the trial judge’s rulings on certain objections with respect thereto. No challenge, however, is otherwise directed by defendant to the sufficiency of the evidence to support his convictions.

It is defendant’s theory of the case (1) that the trial court erred in unduly restricting his attempts to impeach the credibility of the police informer through testimony designed to disclose that the informer had, in fact, received promises of reward concerning certain criminal charges pending against him in exchange for his testimony at trial, and (2) that the court similarly erred in refusing to give Defendant’s Instruction No. 13 pertaining to the credibility of the informer’s testimony.

There appears to be no dispute in the evidence that the informer had been initially searched by the police and supplied with a quantity of prerecorded currency with which to make the eventual purchase. Bodnar had been thereafter accompanied by Detectives Stiglich, Reynolds and Buffo to the vicinity of 108th Street and Michigan Avenue in the City of Chicago where a meeting with defendant had been previously arranged. The informer’s contact with the eventual purchase of the drugs from defendant subsequently took place in an alley immediately adjacent and to the rear of a well-illuminated parking lot under the visual surveillance of Stiglich and Reynolds. Nearby streetlights were said to afford even further illumination. Both Stiglich and Reynolds testified at trial to having observed the entire transaction under these favorable conditions from close and unobstructed vantage-points.

As defendant subsequently exited from the alley, he was immediately arrested by Detective Buffo on a prearranged whistle from his companions signalling that a “buy” had been made. Stiglich’s search of defendant’s person revealed the latter to be in possession of the marked and inventoried currency. Both the police field test at the scene as well as the subsequent crime laboratory analysis yielded positive evidence that the contents of the package possessed and sold by defendant to Bodnar were that of marijuana.

As to the questions raised by this appeal, it appears that during the defense cross-examination of Joseph Bodnar, the witness had admitted to his former use of narcotics and prior history of criminal conduct. It was elicited from Bodnar that there were, at that particular moment, three separate burglary indictments pending against him for which he had been admitted to bail on his own recognizance pursuant to court proceedings conducted one month prior to the date on which he had agreed to assist the police in the controlled transaction at bar. There were indications that one or more other persons jointly indicted with Bodnar for these burglaries had since been convicted and sentenced to prison. In addition, the informer acknowledged somewhat candidly that he was involved in 16 other burglaries for which no indictments had yet been returned against him. Bodnar, however, denied in response to specific inquiry that he had received promises of leniency or immunity from the prosecution with respect to any of these alleged criminal offenses.

In an effort to further impeach the witness, the defense, as part of its case in chief, called Thomas P. Cawley, an Assistant Public Defender who had admittedly represented Bodnar during the preliminary hearings in conjunction with the three aforementioned indictments. Cawley testified that he had certain conversations with both his client and the State’s Attorney with regard to the charges under indictment, but refused to divulge any further information because of the confidential relationship he bore to Bodnar. In response to objection, the court conducted a hearing out of the presence of the jury to determine whether the information sought to be elicited from Cawley was, in fact, barred from disclosure as an attorney-client privileged communication and whether the client wanted to claim it. Bodnar was questioned and expressed his election to invoke the privilege. Returning to open court, the trial judge ruled explicitly in favor of the privilege, and the witness was dismissed.

Thereafter, during the conference on instructions, the court refused to tender to the jury Defendant’s Instruction No. 13 relating to the credibility of the informer’s testimony. That instruction recited:

“The jury are instructed that they shall act upon the testimony of Joseph Bodnar with great care and caution; and the jury ought not to convict upon such testimony unless after a careful examination of all the evidence they are satisfied beyond a reasonable doubt of the truth of such testimony and that they can safely rely on it.”

It is from within the context of the foregoing circumstances that defendant pursues this appeal.

The errors assigned by defendant must, by their very nature, rely upon the tenuous assumption that the jury’s determination as to the credibility of the informer bore a direct and pivotal relationship to their eventual finding of guilt. Defendant’s theory on appeal, howsoever attempted to be supported by authority, accordingly is an argument advanced out of perspective in that it fails to successfully test the significance of the testimony assailed as against the balance of the evidence adduced at trial tending to establish his guilt beyond a reasonable doubt.

We agree with defendant that an accused is afforded a broad degree of latitude to demonstrate, by cross-examination, the bias, interests or motives of a particular witness testifying against him. This basic tenet has been held to extend, primarily where an accomplice testifies, to matters concerning promises of leniency or grants of immunity with respect to the witness’ past criminal activity bartered in exchange for his testimony at trial. People v. Mason, 28 Ill2d 396, 192 NE2d 835 (1963); People v. Maggio, 324 Ill 516, 155 NE 373 (1927). We nonetheless find in retrospect from a perusal of the lower court proceedings that the restriction placed upon the mode of impeachment at issue here in no manner resulted in prejudice to the accused, and to this extent his cited authorities are factually inapplicable.

While in his case of People v. Nash, 36 Ill2d 275, 222 NE2d 473 (1966), this somewhat novel attempt at impeachment was similarly employed, we note that there the propriety of the procedure was neither at issue in the case nor was it afforded express judicial sanction. In Nash moreover, no privilege had been invoked by the accomplice-witness nor had timely objection been made to his attorney’s testimony concerning the promise of leniency offered his client. Defendant further alludes to the case of Napue v. Illinois, 360 US 264 (1959), for the proposition that due process is violated when the prosecution knowingly allows perjured testimony as to the nonexistence of such promises to proceed unabated before the jury. Suffice to say however that nothing affirmatively appears in the present case, save the innuendoes interjected by defendant, to persuade this court that the informer’s statement was false or, even if it were so, that such an untruth was known or imputable to the prosecution.

Endeavoring to show wherein the rule of attorney-client privilege was erroneously applied to the information sought to be elicited from Cawley, defendant, by hypothesis, points to the certain presence and/or involvement of a third party (presumably the State’s Attorney who extended the offer of benefit) to an otherwise protected attorney-client communication regarding this matter. Hence he submits, the removal of the shroud of confidence surrounding that conversation. We however disagree.

The reasoning advanced calls into question three possibilities were we to assume for the moment that such a promise had been made. First, that an offer was extended directly to Bodnar by the State. Second, that an offer was extended to Bodnar in the presence of his attorney. Third, that an offer was extended by the State to the attorney and was subsequently related by him to Bodnar. We need obviously be concerned here only with the latter two circumstances involving the attorney. While in principle defendant’s logic is sound, he cannot legitimately divorce the question of the presence of a third party to the offer from the equally certain conversation between attorney and client responding to it. We feel that to compel disclosure of the former would be tantamount to an infringement upon the sanctity of the relationship through which the client would seek professional advice. Balanced against defendant’s right to further probe the credibility of the informer, we think the trial judge exercised sound discretion by insulating the attorney-client relationship under the facts of this case.

Here, the record discloses that the court took occasion to conduct a thorough hearing into the merits of defendant’s contention. As the issue pertains to the credibility and weight to be afforded the informer’s testimony, it is manifest from the record that the jury had been fully apprised of Bodnar’s criminal proclivities and had been made cognizant of the circumstances antedating his professed gratuitous cooperation with the police. Furthermore, we cannot lightly dismiss from consideration the fact that there existed other unpursued avenues open to defendant by which the desired information could have been adduced.

In any event however, the assailed testimony of the informer was substantially corroborated by the testimony of three police detectives, two of whom had occasion to personally observe the entire transaction under physical circumstances conducive to a positive and trustworthy account. Hence, we cannot envision wherein defendant was prejudiced by the limitation placed upon the interrogation of the informer’s attorney for, from all that appears, the jury’s belief or disbelief in the informer’s testimony was not a determinative factor in their finding of guilt. People v. Chandler, 89 Ill App2d 123, 233 NE2d 84 (1967); People v. Johnson, 87 Ill App2d 390, 231 NE2d 647 (1967).

We are drawn to the further conclusion that this same observation holds equally true in answer to the trial court’s alleged erroneous refusal to give defendant’s Instruction No. 13. Here, while only technically an accomplice to the offenses, we do not dispute the proposition that the testimony of an informer of admitted disrepute is to be viewed with the utmost caution and circumspection. Yet, the weight to be afforded such testimony essentially remains a question of fact for the jury. So long as the jury is given and deliberates under instructions which properly guideline the appropriate considerations affecting credibility, we think their determination should remain unbridled by any legal rule or direction requiring a comparison with other witnesses. People v. Newbold, 260 Ill 196, 103 NE 69 (1913). Here, State’s Instructions Nos. 9, 13 and 18 adequately served that purpose, admonishing the jury to consider among other factors affecting credibility :

“. . . all the circumstances under which any witness has testified, . . . his interest, if any, in the outcome of the case, [and] the relations which he bears to the State. . . .”

It has been moreover established that an instruction is objectionable and properly refused if, by particular emphasis or repetition, it singles out a lone witness endeavoring to call undue prominence to his credibility and the spirit with which his testimony should be received. People v. Robinson, 14 Ill2d 325, 153 NE2d 65 (1958); People v. Sledge, 71 Ill App2d 285, 218 NE2d 845 (1966). Again, particularly in light of the corroboration for the informer’s account, we can find no prejudicial error in the court’s refusal to give this instruction.

For the above reasons, the judgments are affirmed.

Judgments affirmed.

BURKE, P. J. and McNAMARA, J., concur.