author: MR. PRESIDING JUSTICE LYONS

text:
    Bacia Gordon, Plaintiff-Appellee, v. Leo Gordon and Alex Gordon, Defendants-Appellants.
    Gen. No. 53,241.
    First District, Second Division.
    July 22, 1969.
    Rehearing denied September 9, 1969.
    Samuel S. Cohon, of Chicago, for appellants.

      Elmer Gertz and Claire I. Rosen, of Chicago (Wayne B. Giampietro, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

Plaintiff brought an action in the Circuit Court of Cook County for the conveyance to her by defendants of their interest in certain real estate. The defendants filed a counterclaim alleging that they, along with their sister, are entitled to certain personal property in possession of plaintiff and praying for delivery thereof, as well as an accounting for any such property which may have been disposed of by plaintiff. By stipulation of the parties during the proceedings before the master, the question of an accounting was reserved pending a determination of the issue raised by plaintiff’s defense to the counterclaim. The master made findings of fact favorable to plaintiff on her complaint as well as on the counterclaim and recommended that judgment be entered for her on both. The findings of the master were adopted by the chancellor, objections thereto having been overruled, and judgment was entered for plaintiff on both the original complaint and the counterclaim. Defendants appeal only from that portion of the judgment entered in favor of plaintiff on their counterclaim.

Bacia Gordon is the widow of Simon Gordon who died intestate. Defendants Leo and Alex Gordon are the brothers of the decedent. On April 28, 1962, one day prior to their marriage, Bacia Gordon and Simon Gordon entered into a prenuptial agreement which provided:

(1) Within 30 days after the marriage Simon was to convey certain real estate located in Chicago, Illinois, which was to be used as the marital domicile to himself and Bacia in joint tenancy.
(2) All other property of the parties was to remain their separate property, whether then owned or thereafter acquired, with each party retaining the right to dispose of any such property free from any claim of the other which might otherwise arise by reason of their marital relationship.
(3) In the event that either party should die during the existence of the marital relationship, the marital domicile and its furnishings was to become the sole property of the survivor.
(4) The parties waived all right and interest, statutory or otherwise and including distribution in intestacy and widow’s allowance, which might arise by reason of the marriage relationship.
(5) Each party reserved the right to transfer property to the other by will or otherwise, and each retained the right to receive such a transfer if made.

They were married on April 29, 1962, and Simon Gordon died intestate on May 1, 1962, before he had the opportunity to transfer the marital domicile into joint tenancy with Bacia Gordon as provided in the prenuptial agreement. The plaintiff is the sole taker of the property of the decedent under the statutory rules on descent and distribution (Ill Rev Stats, c 3, § 11).

In their counterclaim defendants alleged that they, along with their sister and plaintiff, constituted the sole heirs at law of Simon Gordon; that plaintiff has certain personal property belonging to Simon Gordon at the time of his death, consisting of certain objects of art (sculpture) created by him, to which she has no right or interest by reason of her having executed an express waiver of right to participate in the distribution in intestacy as part and parcel of the prenuptial agreement. The coum terclaim further alleged that defendants and their sister are the sole owners of said personal property and are entitled to possession thereof as well as an accounting for any such property which may have been disposed of by Bacia Gordon, plaintiff. The sister of defendants was not a party to this proceeding as she voluntarily deeded to plaintiff her interest in the realty which was the subject of plaintiff’s complaint, that being the parcel described in the prenuptial agreement.

Plaintiff’s answer to the counterclaim alleged that the personalty (sculpture) in question was given to her by Simon Gordon prior to his death. The master found that the gift had been made and recommended that judgment be entered for plaintiff on the counterclaim as well as on her complaint. The findings of the master were adopted by the chancellor and judgment was entered in accordance with the former’s recommendations.

In this appeal defendants allege that plaintiff failed to meet her burden of proof with respect to her allegation that an inter vivos gift had been effected in that neither donative intent nor delivery have been shown. Citing Rinehart v. Rinehart, 14 Ill App2d 116, 143 NE2d 398 (1957); Dudley v. Uptown National Bank of Moline, 25 Ill App2d 514, 167 NE2d 257 (1960); In re Estate of Schneider, 6 Ill2d 180, 127 NE2d 445 (1955); Keshner v. Keshner, 376 Ill 354, 33 NE2d 877 (1941); Schramm v. Schramm, 13 Ill2d 281, 148 NE2d 799 (1958).

Donative intent is an intention on the part of the donor that there be a present and irrevocable transfer of title to the subject matter of the gift. Delivery constitutes the means through which the intent of the donor is given effect. It consists of an irrevocable surrender of dominion and control over the subject matter of the gift to the donee or his agent.

To sustain her burden of proof as the party alleging a gift, plaintiff offered evidence consisting first of the testimony of David C. Ruttenberg, an attorney, who had known Simon Gordon for a number of years prior to the latter’s death. Ruttenberg testified that he had represented decedent with respect to the prenuptial agreement and at that time spoke to him about executing a will, and that decedent informed him there was no need for a will since he had given everything to his future wife as a gift. The witness further testified that when he asked decedent for a piece of sculpture in partial satisfaction of his fee, the decedent said that the matter would have to be taken up with Bacia Gordon. Finally, Ruttenberg testified that the reason for the reservation of rights by the parties in all property other than the real estate specifically named in the prenuptial agreement was to save certain property which plaintiff had acquired by reason of a previous marriage, for the issue of that marriage.

Plaintiff also produced Claire Rosen, an attorney, who testified that she had known decedent for a period of ten years and had represented Bacia Gordon with respect to and was scrivener of the prenuptial agreement. She testified that the agreement was executed in her presence and at the time of its execution she suggested to deceased that he execute a will; that he responded by informing her that his attorney had already made that suggestion and that he had informed his attorney that there was no need for a will since he had already given all of his property to Bacia Gordon, his future wife, as a gift, and that he did not want his family to have anything, as he owed them nothing.

Also called by plaintiff was Alice Shumacher, who testified that she was a student of Bacia Gordon. She testified that she attended art classes conducted by Bacia Gordon in April of 1962, and that the classes were conducted at a studio shared by decedent and Bacia Gordon. (The studio is the situs of the property which is the subject matter of defendant’s counterclaim.) She also testified that she arrived early on one occasion, found the door to the studio to be locked, and gained entry after Bacia Gordon arrived and opened the door.

Plaintiff did not testify due to the disability imposed upon her by Ill Rev Stats, c 51, § 2, commonly known as the Dead Man’s Act.

The evidence produced by plaintiff in the proceedings before the master established that she and Simon Gordon shared a studio for their respective professional activities and were to occupy a common domicile. In this factual situation we do not consider the fact that the property in question was not removed from the premises over which both decedent and plaintiff exercised control to be repugnant to a finding that a gift had been completed. Moreover, the statements attributed to the decedent by two of plaintiff’s witnesses are clearly sufficient to establish both donative intent and the essence of delivery, i. e., the surrender by the donor of dominion and control over the subject matter of the gift in favor of the donee. Finally, plaintiff’s witness Ruttenberg provided a reasonable explanation of the reservation of rights clause in the prenuptial agreement which is consistent with a determination that a gift had been made.

The master saw the witnesses and heard them testify. His report, adopted by the chancellor, contained a comprehensive review of the evidence and an evaluation of the testimony of each of the witnesses. The testimony of Leo Gordon, the only witness called by defendants, did not serve to contradict that of plaintiff’s witnesses in any significant manner. The findings of the master are not manifestly against the weight of the evidence and are therefore not subject to reversal by a court of review. Kioutas v. City of Chicago, 59 Ill App2d 441, 208 NE2d 587 (1965); Michigan Mut. Liability Co. v. Type and Press Co. of Illinois, 62 Ill App2d 364, 210 NE2d 787 (1965). Accordingly the judgment must be affirmed.

Defendants have also asserted in their brief that the fee of the master is excessive. Despite the fact that this item is not included in their prayer for relief we have reviewed the matter and find that the master’s fee, as reduced by the chancellor, is not excessive.

Judgment affirmed.

BURKE and McCORMICK, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    John A. Roth, George Roth, United Consumers Service and Supply Co., and LaSalle National Bank, as Trustee Under Trust No. 10101, Plaintiffs-Appellees, v. The City of Park Ridge, a Municipal Corporation of the State of Illinois, Defendant-Appellant.
    Gen. No. 53,262. (Abstract of Decision.)
    First District, Second Division.
    July 22, 1969.
    Shaheen, Lundberg and Callahan, of Chicago (Edgar C. Lundberg and Martin J. Lillig, of counsel), for appellant; Panter, Nelson & Bernfield, of Chicago (Irwin Panter and Marshall D. Kroliek, of counsel), for appellees.
   Opinion by JUSTICE McCORMICK. Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    Herman Prewitt and Fanny Poe, Plaintiffs-Appellees, v. Frances Hall and Thomas Howard, Defendants, Thomas Howard, Defendant-Appellant.
    Gen. No. 52,116.
    First District, Fourth Division.
    July 23, 1969.

      Greenberg, Ziv & McCarthy, of Chicago (Sherwin Greenberg, of counsel), for appellant.
    Drake Leoris, of Chicago (George E. Downs, of counsel), for appellees.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This action arises from a claim brought by the plaintiffs to recover for personal injuries and property damage resulting from a collision of their automobile with an automobile owned by defendant Thomas Howard and driven by defendant Frances Hall. The court below entered findings against both defendants in favor of both plaintiffs, assessed damages, and entered judgments on the findings.

It is undisputed that the automobile owned by Herman Prewitt and driven by Fanny Poe was struck by the automobile owned by Howard and driven by Frances Hall, and that the collision was caused by Miss Hall’s negligence. Howard, however, raises the issue on appeal that Miss Hall, in driving the automobile without his permission, was not acting as his agent, and that therefore he is not liable. Miss Hall has not appealed from the judgment against her.

The factual controversy is centered on events that allegedly transpired earlier in the evening preceding the accident. Howard testified that he had driven his automobile to Miss Hall’s apartment around 9:30 p. m., had a few drinks with four or five others there present, and dozed off while sitting on the couch listening to the record player. He last recalled being aware of Miss Hall’s presence at about the time he fell asleep, which was approximately midnight. He was not aware that she had left the apartment, or that his car was gone from where he had parked it. The next thing he remembered was being awakened by a phone call from the police at 4:00 a. m. informing him that his car had been involved in an accident.

Howard testified further that he did not give Miss Hall permission to use his car, nor did she ask to use it. She was not an employee of his, nor was she involved in any errand for him. Prior to the date of the accident she had never driven his automobile, although she had ridden in it as a passenger while he drove. On the evening in question, he had left his coat in the bedroom on a bed, with the keys to his car in a pocket. Miss Hall could have taken the keys without his knowledge as he was sleeping. Miss Hall did not testify at the trial.

Prewitt testified that he obtained Howard’s phone number from Miss Hall and, having unsuccessfully attempted several times to reach him, left his number; that Howard returned his call two or three days after the accident, inquired about the damages resulting from the accident, and assured Prewitt that he would contact him later to see that his car was repaired. Howard denied having any conversation with Prewitt, as he had not returned the call after Prewitt had called and talked to Mrs. Howard.

Plaintiff contends that the disputed phone conversation he claims to have had with appellant was sufficient to show ratification of agency between Howard and Miss Hall. Defendant maintains that, even assuming the conversation had transpired, the testimony as to what he was supposed to have said was inadmissible since it constituted an offer to settle or compromise.

In Illinois, the general and undisputed rule is that offers of settlement, as such, are not admissible into evidence. Hill v. Hiles, 309 Ill App 321, 32 NE2d 933; Steiner v. Rig-A-Jig Toy Co., 10 Ill App2d 410, at 421, 135 NE2d 166. The courts have consistently refused to permit evidence of mere offers and negotiations for settlements to reach the jury on the ground that public policy favors the settlement of claims outside of court. Hill v. Hiles, supra; Gehm v. People, 87 Ill App 158; Edwin S. Hartwell Lumber Co. v. Bork, 138 Ill App 506; Graff v. Fox, 204 Ill App 598. No evidence has been advanced to demonstrate that the alleged conversation was anything more than an offer of settlement. Plaintiffs contend that the conversation had independent relevance as an admission of a party, and was, therefore, admissible, citing three cases to support the contention that any promise to pay or offer to pay should be construed as an admission. Each case relied upon involves a situation wherein a party offered to pay or did, in fact, pay the medical bills of an injured person. The first of these cases (Sullivan v. Heyer, 300 Ill App 599, 21 NE2d 776) to allow such an exception to the inadmissibility of offers of settlement stated:

As to who paid plaintiff’s bill while she was in the hospital and the further fact that defendant paid it, was excluded from the consideration of the jury. This could well be construed as an admission of defendant’s liability. (Emphasis supplied.)

This holding was extended in Hanlon v. Lindberg, 319 Ill App 1, 48 NE2d 735 (and, in our opinion, misconstrued) to read:

Where the parties are strangers under the law, and the one charged with being the wrongdoer, promises to pay or does pay for hospital and medical care, it is a proper circumstance for the consideration of the jury. (Emphasis supplied.) Sullivan v. Heyer, 300 Ill App 599, 601, 21 NE2d 776.

There was testimony in Hanlon that defendant told the plaintiff and other witnesses that he would pay the plaintiff’s hospital bills. More importantly, and more damaging to the defense, was plaintiff’s testimony that defendant “said he was responsible for the accident and wanted to be responsible for the bills.” (Emphasis supplied.) Hanlon, supra, at 7. The court did not specify the exact testimony it relied upon to render the conversation admissible, but stated that the testimony “in no way partook of any attempt by the parties to effect a compromise of a disputed claim.” The statement directly admitting liability is an independent admission which is clearly admissible (Edward Edinger Co. v. Willis, 260 Ill App 106), and may have been the basis for the decision.

The third and most recent case relied upon merely cited the above-quoted portion of Hanlon to support the admissibility of testimony relating to an offer by defendant to pay plaintiff’s hospital bills if plaintiff would sign a release. Mick v. The Kroger Co., 73 Ill App 2d 155, 218 NE2d 654. This seems to us a classic example of a settlement offer generally inadmissible into evidence and is not similar in nature to the type of testimony that was the basis for the Hanlon decision. We respectfully differ with the court in the Mick case, and believe that evidence of an offer to pay bills in exchange for a release cannot correctly be construed as an admissible admission, in light of its patent character as a settlement offer.

In the instant case, Howard did not actually pay any of plaintiff’s bills, nor is it claimed that he made any factual admission as to the existence of an agency relationship or as to liability generally. The alleged conversation concerned only an offer relating to payment for repair of the automobile and did not include anything to cover plaintiffs’ claims for hospital costs and personal injuries which were ultimately awarded in favor of plaintiffs. We find that the alleged conversation constituted an inadmissible offer of settlement.

Plaintiffs have also attempted to use the telephone conversation (which defendant denies ever took place) to prove the existence of an agency relationship between Miss Hall and defendant. Here, again, evidence of compromise may not be admitted for such a purpose. In Fenberg v. Rosenthal, 348 Ill App 510, 517, 109 NE2d 402, this court quoted with approval from the opinion of Justice Hand in Hawthorne v. Eckerson Co., 77 F2d 844, as to evidence which had been offered to show both agency and liability:

Compromises are not in themselves evidence as admissions of liability, and the same rule applies when they are offered as proof of agency.

Appellee also contends that appellant’s phone conversation amounted to ratification of Frances Hall’s acts. Ratification, as it relates to the law of agency, is the express or implied adoption or confirmation by one person of an act or contract performed or entered into in his behalf by another, without authority. First Nat. Bank v. Alton Mercantile Co., 18 F2d 213. In the instant case there was no evidence that Miss Hall’s acts were intended to be performed on behalf of Howard. As a consequence, the principle of ratification does not come into play. See Reed v. Rich, 49 Ill App 262; Grund v. Van Vleck, 69 Ill 478.

The law is settled that the owner of an automobile who permits another to use it for the latter’s own purpose is not liable for the negligence of the borrower in using the machine (Arkin v. Page, 287 Ill 420, 123 NE 330), unless the other person is, in operating the automobile, the servant or agent of the owner. Dean v. Ketter, 328 Ill App 206, 65 NE2d 572; Mosby v. Kimball, 345 Ill 420, 178 NE 66; Bensman v. Reed, 299 Ill App 531, 20 NE2d 910. In order for liability to attach to Howard, it must have been shown that an agency relationship existed between him and Miss Hall. “To constitute the relation of master and servant, the one for whom the service is rendered must consent or manifest his consent to receive the services.” Restatement of the Law of Agency, 2nd, Vol 1 (1958 ed) Section 221. There is no testimony whatsoever that Howard had consented to receive services from Miss Hall through her use of his automobile.

Even if it had been shown that Miss Hall had received permission from Howard to use the car, this, without more, would not have been sufficient proof of agency, for a permissive user is not necessarily an agent of the owner. Although ownership of the automobile may raise an inference of agency between owner and driver, such inference may be overcome, and was overcome, by Howard’s own testimony in this case. Paulsen v. Cochfield, 278 Ill App 596; Howard v. Amerson, 236 Ill App 587; Watts v. Staunton Lumber Co., Inc., 1 Ill App2d 224, 116 NE2d 908 (Abst). Thus, plaintiffs were faced with the burden of proving the agency which they had alleged. Dean v. Ketter, supra. They did not meet this burden.

The judgment of the Circuit Court is reversed.

Reversed.

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

       Restatement of the Law of Agency, 2nd, Vol 1 (1958 ed):
      “85. Purporting to Act as Agent as a requisite for Ratification.
      “(1) Ratification does not result from the affirmance of a transaction with a third person unless the one acting purported to be acting for the ratifier.”


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Adams, Defendant-Appellant.
    Gen. No. 52,355.
    First District, Fourth Division.
    July 23, 1969.
    Rehearing denied September 18, 1969.

      Delars J. Bracy, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon M. Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

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

DEFENSE AT TRIAL

Self-defense. Ill Rev Stats (1965), c 38, § 7-1.

JUDGMENT

After a bench trial, defendant was found guilty of voluntary manslaughter (111 Rev Stats (1965), c 38, § 9-2) and sentenced to a term of 2 to 10 years.

POINTS RAISED ON APPEAL

(1) The evidence does not support a conviction for voluntary manslaughter.

(2) The sentence is excessive.

EVIDENCE

Robert Jackson, for the State

He is the stepfather of the deceased, Bernice Adams, and had known her for 27 years. On December 4, 1965, she was the wife of defendant. The deceased had spent the night of Friday, December 3, at the witness’ house at 7113 South Racine. She left sometime the following morning, and he next saw her at noon that day in a tavern next to his home. He had been drinking with the deceased and defendant’s brother when defendant entered the tavern, knocked her off the bar stool, and left. He next saw her at the Cook County Morgue, at which time she was dead.

Barbara Stevenson, Oscar Jones and Claude High, for the State

These witnesses, all of whom were fellow employees of the deceased at Knickerbocker Case Co., testified to having seen the killing. Their testimony contained no substantial contradictions and on all important points they corroborated each other. Piecing their testimony together, they gave this account:

On December 4, 1965, the deceased arrived at Mrs. Stevenson’s apartment at about 10:30 a. m. and they left together in deceased’s 1964 blue Falcon. On the way to deceased’s home, they entered a tavern near 71st and Racine and had one or two beers at the bar with deceased’s stepfather. Shortly after they arrived, defendant entered and tried to get the deceased to leave with him, but she refused. He hit her, knocking her off the bar stool, and then he left. The two women left about 1:30 p. m. to go shopping, after which, at about 5:30 p. m., they went to the home of Claude High. Deceased’s automobile at that time was in good condition. Also present at High’s apartment were Oscar Jones and Cora Barnes who had gone there to watch a football game.

Later, while in the apartment, a loud crashing sound was heard outside. Jones, Mrs. Stevenson, and the deceased went out and discovered that all the tires on deceased’s car had been slashed and all the windows broken. They returned to High’s apartment to call the police, and then, with High, the four of them returned to the car. Mrs. Stevenson and Jones were standing in the street at the rear of the car, and the deceased and High were on the sidewalk when defendant drove up, stopped his car in the middle of the street, got out, and walked over to the deceased. As he approached her, High saw that defendant had a knife with a 5- or 6-inch blade in his right hand. Mrs. Stevenson and Jones did not see a knife from where they were standing. The deceased asked defendant, “Why did you tear up my car?” to which he replied, using obscenities, “I tore it up and I will do you the same way.” Defendant then began to swing, hitting the deceased numerous times. (The witnesses’ estimates varied from “four or five” to “seven to ten” times.) High testified that defendant was striking her with the knife; that he then pushed her onto the hood of the car and stabbed her in the thigh. She did not put up much of a struggle and never struck defendant. She yelled, “Robert, you done cut me.” Whereupon, defendant returned to his car and left. As he walked away, he was still carrying the knife, according to High. Deceased walked to the porch and collapsed. High wrapped her in a sheet and took her in his car to St. Bernard’s Hospital, where she was pronounced dead.

Jones testified that he said nothing to defendant and did not try to strike defendant with an iron object; that he was a close friend of the deceased, but she was not his girl friend. She had lent him $65 when his daughter was hospitalized.

Dr. Eugene H. Tapia, for the State (by stipulation) He is an assistant coroner’s pathologist who, on December 5, 1965, examined the body of the deceased. There were multiple lacerations on the body, one such stab wound entering the abdominal cavity through the ribs, and another was a deep two-inch cut in the right leg which severed the right femoral artery. In his opinion, death was caused by a hemorrhage due to the stab wound of the right femoral artery. In the blood there was present 158 mg. percent of ethyl alcohol.

Police Officer Louis Pote, for the defense

On December 4, 1965, Captain Gall, Officer Spivack, and he investigated a disturbance at 6634 South Union. Finding no one at that address, they proceeded to St. Bernard’s Hospital, where they saw the deceased with two men and a woman who explained that there had been a fight. At the police station, he interviewed High who stated that the deceased had come down and found her car damaged; that when defendant appeared, the deceased had gone up to him, and in the ensuing altercation there was a cutting. High was with a man who was allegedly going with the deceased. He detected the odor of alcohol on the breath of these people.

Police Captain Paul Gall, for the defense

(His testimony was substantially the same as that of Officer Pote.) The inference from his conversations with Jones, High, and Mrs. Stevenson was that the deceased possibly started the argument with defendant.

Calvin Krutchfield, for the defense

About 7:00 p. m. on December 4, 1965, he was leaving the apartment of a friend at 6640 South Union when he saw a man step out of a car on the corner and walk towards a group of three or four people. There was some shouting, and a woman said, “What did you break up my car for?” The woman approached the man with a knife or something in her hand and backed him into a parked car. Two men approached from either side, and one of these men held a piece of iron or something in his hand. The cornered man jumped into the woman and held her to shield him from the other two men. The woman was striking at the man with a knife, but the knife never came in contact with him.

He had never seen defendant or any of the other parties before that date. He could not remember any of the faces of the people at the scene, nor could he remember exactly how many people were involved. While he was 5 or 6 feet away, he was not positive that defendant was the man who got out of the car. He heard about the killing from the radio, but did not go to the police at that time.

Willie Cardine, for the defense

She is a sister of defendant, and had lived with him and the deceased until November, 1965. Defendant treated the deceased well, but she tried to hurt him. In April, 1965, she shot at defendant with a small pistol; in November, 1965, she tried to cut him with a kitchen knife; and at another time, she tore up his clothes and furniture and threw a chair at him. These incidents were not reported to the police.

Hattie Jones, for the defense

She is also a sister of defendant. On December 4, 1965, at 6:30 or 7:00 p. m,, she and defendant drove to 66th Place and Union Avenue. Defendant got out of the car and went to a group of people standing near the corner to see if his wife (the deceased) was among them. Her car was there, and it was smashed up. The people began shouting at defendant, calling him names and accusing him of having torn up the car. The deceased stepped from the group with a knife in her right hand and began to strike at him. The witness shouted to defendant to watch out. A man was behind deceased holding a piece of pipe or something in his hand. He was trying to get to defendant, but he never did. Defendant and the deceased were tussling and she continued to strike at him, cutting his right hand and his coveralls. The witness got back in the car as defendant pushed himself away from the deceased, got back in the car, and said, “Let’s go.” They went.

She did not recall seeing defendant bleed from the struggle. She did not see the deceased drop the knife or the defendant take it from her. Defendant had nothing in his hand when he returned to the car, and she never saw a knife in his hand.

Joe Arnold, for the defense

At 8:30 p. m. on December 4, 1965, defendant came to his home with cuts on his coveralls and on his left hand. Defendant said his wife cut him, and he asked for medication.

In April, 1965, the witness was visiting in defendant’s home when defendant and the deceased had an argument. She said she would shoot him. The witness saw a small gun in the dining room, and said to his wife, “Let’s go home”; and then went. He did not hear any shots.

The witness’ wife is defendant’s cousin.

Robert Adams, defendant, on his own behalf

He is self-employed, with a delivery service. He married the deceased in June, 1963. In a tavern at noon on December 4, 1965, he saw his wife, who had not been home the night before. He caught her by the hand to take her home, but she jerked free and fell off the stool. He did not hit her. He then returned home alone.

At about 5:30, he discovered that $1,500 cash was missing from his home, and he went out to find his wife. Upon finding her car at 66th Place and Union Avenue, he took the jack handle out of his trunk and broke the glass in her car and punctured the tires. No one came out to investigate, so he went to a gas station and called his sister. His sister arrived in her car, and he drove back to 66th and Union. He got out of the car and walked towards a group of people who started cursing him. His wife yelled, “Did you tear up this car?” and he replied, “Yes, I did.” His wife charged into him with a knife in her hand and started swinging at him. He backed against his sister’s car, grabbed his wife’s hand, took the knife away, and continued to fight, making several swings at her with the knife. Oscar Jones held a hammer or a “kid’s” baseball bat in his hand and yelled, “Get to him,” but Jones never got to him. In the struggle, his hand was cut and his coveralls were snagged. He returned to his sister’s car and said, “Let’s go.” He had taken the knife and had put it in his pocket. He then went back to the service station and placed the knife over the windowsill in the washroom. He later retrieved the knife and gave it to the deputy coroner. That evening he went to the home of his cousin, Joe Arnold, where he told Joe what had happened and received some medicine for his hand. He did not know that his wife was dead until he called home.

In April, 1965, he had quarreled with his wife, and she pulled a gun on him. She shot at him, but the bullet went through the window. In November, 1965, his wife had thrown a knife at him as he was pulling away in his car, but it missed. Also, she once threw a brick at him. None of these incidents was reported to the police. On December 4, 1965, when his wife attacked him, he was in fear of his life and his bodily safety. He acted in self-defense.

Hattie Jones, recalled for the defense

In prior testimony, she stated that the right shoulder of defendant’s coveralls and defendant’s right hand were cut. She was mistaken, because in fact the left shoulder and the left hand were cut. She is a sister of defendant and was present in court during the testimony of Joe Arnold and defendant.

Police Officer Louis Pote, recalled as rebuttal for the State

He examined the deceased’s car when he first investigated the disturbance. He noticed the tires were slashed with three or four-inch cuts. These slashes could have been made from a jack handle but not by just pushing it in. He found fresh blood stains on the sidewalk.

OPINION

(1) Defendant contends that the evidence does not support a conviction for voluntary manslaughter. First, he states that the evidence conclusively shows he acted in self-defense. If self-defense is not sustained, he argues that murder, not manslaughter, is the only possible conviction from this evidence, and that the conviction for manslaughter amounts to an acquittal on the murder charge.

Defendant was indicted for murder. Ill Rev Stats (1965), c 38, § 9-1. The State’s case in chief included the testimony of three friends of the deceased who witnessed the occurrence. Their evidence was to the effect that defendant, without provocation, cut the deceased with a knife, and she died as a result of this attack.

The defense at trial was that defendant had used force upon the deceased only in his own defense. The pertinent statute provides:

7-1. Use of Force in Defense of Person.
A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably
believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony. Ill Rev Stats (1965), c 38, § 7-1.

This is an affirmative defense (111 Rev Stats (1965), c 38, §7-14), and, therefore, once properly raised by some evidence of all elements of the defense, it must be overcome by proof beyond a reasonable doubt to sustain a conviction. Ill Rev Stats (1965), c 38, § 3-2. See IPI, Criminal, §§ 24.06 and 25.05.

Defendant presented the issue of self-defense through his own testimony, that of Hattie Jones (his sister), and Calvin Krutchfield. This testimony was to the effect that the deceased was the aggressor; that she came toward defendant with a knife in her hand and tried to stab him with it, cutting his clothing and hand; that defendant wrested the knife from her, but he was still cornered, so he used deceased to shield himself from Jones who carried a bat-like object in his hand. He used the knife he had taken from the deceased, but it is interesting to note that none of these three witnesses testified to defendant’s having used the knife on the deceased. Additional evidence was presented of three occasions on which the deceased had tried either to injure or kill defendant.

Self-defense is always a question of fact to be determined by the trier of fact. People v. Pena, 72 Ill App2d 305, 219 NE2d 667; People v. Colson, 70 Ill App2d 447, 217 NE2d 348; People v. Millet, 60 Ill App2d 22, 208 NE2d 670; People v. Jordan, 18 Ill2d 489, 165 NE2d 296. When, after raising this defense, there is a guilty finding, a reviewing court will not reverse that determination unless it is so unsatisfactory or improbable as to justify a reasonable doubt of the defendant’s guilt. In this case we believe that the evidence was sufficient to disprove beyond a reasonable doubt defendant’s claim of self-defense. Defendant here was openly hostile to his wife. At noon on the day in question, he engaged in a dispute with her which resulted in her falling to the floor. He admittedly broke the windows of her car and slashed its tires. While the defense witnesses did not testify to it, neither did they deny the testimony that defendant repeatedly struck the deceased with a knife. The medical evidence about knife wounds, plus the fact of death, is strong corroboration of the State’s witnesses. On the other hand, there is dispute as to whether the deceased struck defendant at all. Although there is no duty to retreat in face of a wrongdoer (People v. Millet, 60 Ill App2d 22, 30, 208 NE2d 670; People v. Durand, 307 Ill 611, 139 NE 78), there is no showing that defendant attempted in any way to decline or avoid the peril before dealing the fatal blows. Also, with the apparent control he had of the situation and the ease with which he extricated himself from it, there is no real possibility that he could reasonably have believed that the use of deadly force was necessary for his own defense. Our conclusion in this regard is supported by People v. Honey, 69 Ill App2d 429, 217 NE2d 371 cited by defendant, although that case is distinguishable on its facts.

Defendant was found guilty of voluntary manslaughter. A trial court may convict for voluntary manslaughter on an indictment for murder, provided there is evidence to support the lower grade of homicide. People v. Green, 23 Ill2d 584, 179 NE2d 644; People v. Lewis, 375 Ill 330, 31 NE2d 795. As defendant points out, conviction of the lesser crime of voluntary manslaughter does amount to acquittal of the greater crime of murder. People v. Newman, 360 Ill 226, 195 NE 645; People v. McMurry, 64 Ill App2d 248, 212 NE2d 7. And it is also true that if the evidence in such a case fails to support the finding of voluntary manslaughter, the conviction must be reversed outright and the defendant relieved of all jeopardy. People v. Newman, supra. In this context of the law, defendant claims that his conviction of voluntary manslaughter is unsupported by the evidence. We conclude, however, that, while the State presented its case for murder, and defendant offered some evidence of self-defense, the State adequately met its burden of proof with evidence sufficient to support the trial court’s guilty finding as to the lesser crime.

Often, when a defendant is charged with murder and he pleads self-defense, the conviction is for manslaughter. People v. Pena, 72 Ill App2d 305, 219 NE2d 667; People v. Jordan, 18 Ill2d 489, 165 NE2d 296; People v. Millet, 60 Ill App2d 22, 208 NE2d 670; People v. Lockett, 85 Ill App2d 410, 229 NE2d 386. The explanation for this lies in the close relationship between the two concepts. One definition of voluntary manslaughter is as follows:

A person who intentionally or knowingly kills an individual commits voluntary manslaughter if at the time of the killing he believes the circumstances to be such that, if they existed, would justify or exonerate the killing under the principles stated in Article 7 of this code, but his belief is unreasonable. Ill Rev Stats (1965), ch 38, § 9-2 (b).

Although the danger need not be real and the deceased need not be armed with a deadly weapon for a person to have a reasonable belief that his life is endangered to the point of justifying a killing (People v. Lockett, 85 Ill App2d 410, 229 NE2d 386), we think that defendant here could not reasonably have believed that killing was necessary to prevent his own death or great bodily harm at the hands of the deceased. See People v. Colson, 70 Ill App2d 447, 217 NE2d 348; People v. Millet, 60 Ill App2d 22, 208 NE2d 670. Defendant, by his own testimony, had disarmed the deceased, and he, himself, held the most deadly weapon at the scene. He further testified that he successfully controlled the deceased to shield himself from the others until he decided to flee the scene. Under these circumstances, the trial court could justly determine that defendant may have believed that his use of deadly force was necessary in his own defense, but that such belief was unreasonable.

There is also sufficient evidence to furnish another basis for a voluntary manslaughter conviction in this case. The statute provides further:

A person who kills an individual without lawful justification commits voluntary manslaughter if at the time of the killing he is acting under a sudden and intense passion resulting from serious provocation by:
(1) the individual killed, . . .
Serious provocation is conduct sufficient to excite an intense passion in a reasonable person. Ill Rev Stats (1965), c 38, § 9-2 (a) (1).

It is clear that there was an altercation between defendant and the deceased at the time in question. By defendant’s own testimony, the deceased struck at him with the knife; they struggled and he gained possession of the knife. He then tried to defend himself from the deceased and the man behind her who charged several times, but never got to defendant because the deceased was kept between them. Defendant did not know if he put the knife in her body, because he was trying to defend himself. He did not know whether he swung the knife or whether he touched her with it. He was holding her, and she was holding him and fighting and kicking. He sometimes held her with both hands. He held the knife in his right hand the entire time and took it with him when he left, putting it in his back pocket as he ran around the car. To this testimony of defendant must be added the undisputed report of the coroner’s pathologist concerning the multiple stab wounds inflicted upon the body of the deceased.

On this evidence, the trial court could reasonably have found defendant to be acting under sudden and intense passion resulting from the provocation of what he testified was an attack by the deceased, as there was no time for the “cooling of defendant’s blood.” (See People v. Walker, 55 Ill App2d 292, 204 NE2d 594.) His actions could therefore be considered, with reason, to fall within the second definition of voluntary manslaughter as quoted above. Thus, under either definition of the crime, the trial court’s decision finds adequate support in the record. People v. Newman, 360 Ill 226, 195 NE 645, and People v. McMurry, 64 Ill App2d 248, 212 NE2d 7 cited by defendant, are consistent with this conclusion, although their decisions are distinguishable on the facts.

(2) Defendant also claims that the sentence of 2 to 10 years is excessive under the circumstances and should be reduced pursuant to Supreme Court Rule 615 governing the powers of the reviewing court. Ill Rev Stats (1967), c 110A, § 615 (b) (4). This court unquestionably has the authority to reduce the punishment imposed by the trial court, but we do not believe •‘"hat this case warrants its exercise.

The statutory limits of punishment on conviction for voluntary manslaughter are 1 to 20 years. Ill Rev Stats (1965), c 38, § 9-2 (c). At the post-trial hearing in aggravation and mitigation, the State asked for a sentence of 12 to 20 years. In mitigation, the court heard that defendant was 32 years old, with no previous criminal convictions. He owns his home and enjoyed a good reputation in the community. He is self-employed, operating a delivery service which does business with some well-known meat packing companies. He has four employees, and he owns five trucks which are operated in his business. When these matters were taken into consideration along with the evidence received upon the trial, the court was presented with sufficient information as to defendant’s “moral character, life, family, occupation, and criminal record” to impose a studied and fair sentence within the general purposes of the criminal code. (Ill Rev Stats (1965), c 38, §§ 1-2(c), (d), and § 1-7 (g).) When the sentence under review is within the statutory limits, it “will not be disturbed unless it constitutes a clear departure from fundamental law or is not proportioned to the nature of the offense.” People v. Gold, 38 Ill2d 510, 232 NE2d 702. See also People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673; People v. Walewski, 91 Ill App2d 42, 234 NE2d 9; and People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498. The trial judge had an opportunity, superior to ours, “in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed.” People v. Taylor, supra. We cannot say that defendant’s penalty, as determined by the trial court, was excessive, and we will not modify that sentence.

JUDGMENT

The judgment of the Circuit Court is affirmed.

Affirmed.

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

       Much of the testimony recited in this paragraph is not found in defendant’s abstract, but only in the record.


author: MR. JUSTICE McNAMARA

text:
    Thomas J. Downs, Administrator of the Estate of John F. Sengelaub, and Thomas J. Downs, Administrator of the Estate of Dorothy Sengelaub, Plaintiff-Appellant, v. Samuel J. Camp and John Dillard, DefendantsAppellees.
    Gen. No. 52,337.
    First District, Fourth Division.
    July 23, 1969.

      Moses, McGarr, Gibbons, Abramson & Fox, of Chicago (Donald J. Parker, of counsel), for appellant.
    McCoy, Ming & Black, of Chicago (Walter K. Black and Ellis E. Reid, of counsel), for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff public administrator of the Estates of John and Dorothy Sengelaub brought two separate actions for the wrongful deaths of the Sengelaubs for the benefit of their two minor children, John and Dale Sengelaub. Defendants, Samuel J. Camp and John Dillard, were both police officers of the Village of East Chicago Heights. The causes were consolidated for trial. The jury returned a verdict for the two defendants, and judgment was entered thereon. The trial court denied plaintiff’s post-trial motions. Plaintiff appeals, contending that the trial court erred in instructing the jury; that the opening statement and closing argument of counsel for defense contained prejudicial remarks; that the trial court erred in restricting the attendance at trial of the two minor children, the real parties in interest; and that the verdict was against the manifest weight of the evidence.

John and Dorothy Sengelaub were killed on August 30, 1959, at about 1:30 a. m., when an automobile operated by James Plair ran a stop sign at the intersection of Sauk Trail and Cottage Grove, located in an unincorporated area of Cook County, and struck a vehicle operated by John Sengelaub. A woman passenger in Flair’s vehicle was also killed in the accident. Plair survived, but could not be located at the time of trial. Without a lawsuit, Flair’s insurance carrier had paid $18,000 to plaintiff in exchange for a covenant not to sue.

At the time of the accident, Plair was being pursued by defendants in their squad car. Shortly before, at Route 30 and State Street, defendants had stopped Plair for speeding. Both officers got out of the police car; Camp informed Plair that he was speeding, and that he wished to see his driver’s license. Plair stated that he had a license but did not find it in his first wallet, and started to look in another wallet. Camp told him that in order to save time he should stop looking, consider himself under arrest, and follow the police car to the station. Defendants found Plair to be courteous, and did not believe that he was under the influence of alcohol. While they conducted no tests at the scene of the arrest, they did not detect any odor of alcohol, and did not notice anything about his speech or manner to indicate that he had been drinking. The police took down Flair’s license number as a matter of regular procedure. Both vehicles proceeded east on Route 30, with Plair following the police. As the police car went past Cottage Grove, Plair made a sharp right-hand turn and went south on Cottage Grove. After letting westbound traffic pass, the police made a U-turn and gave chase. Camp fired 5 warning shots into the air because the siren was inoperative. The dome light of the police car was on during the chase. The Plair vehicle was about two or three blocks ahead, and driving at an unusually high rate of speed, perhaps 100 miles per hour. Cottage Grove was a winding and hilly road, and the police lost sight of Plair. The last time they saw his vehicle during the chase, his headlights were on. However, a passenger in an automobile travelling on Cottage Grove testified that when Plair passed him, the headlights were off. When the police came to the Sauk Trail intersection, they discovered the Plair car had collided with the Sengelaub car. Sauk Trail on which the Sengelaubs were travelling was a through street, while Cottage Grove had a stop sign.

Defendants learned on the following day that Plair had no driver’s license. Dillard denied the testimony of a court reporter that he had given a statement some time after the occurrence that Plair may have been drinking.

A deputy Cook County Sheriff was called to the scene of the accident, and assisted in placing Plair in the ambulance. While doing so, he detected a moderate odor of alcohol on Flair’s breath, but was unable to say whether Plair was under the influence of alcohol. He made no further investigation or tests as to Flair’s drinking, since the latter was removed to a hospital. The sheriff and his partner found a shotgun in the trunk of Flair’s car.

Both sides presented testimony as to proper police procedure in making an arrest. Sergeant Michael Invergo of the Chicago Police Department, an instructor at the police training academy, testified for plaintiff as to the usual and proper manner in arresting a driver who was speeding and whom the officer suspected of being under the influence of alcohol. The proper procedure would be to place the person under arrest, secure his vehicle, and transport him to the nearest police station. If the violator is unable to produce a driver’s license he should not be allowed to drive. A reasonable police officer would not fire shots in the air or at a traffic violator.

Terrance Dougherty, Chief of the Traffic Division of the Chicago Police Department, testified as an expert witness for defendants that an ordinary traffic violator should be allowed to drive his own car to the police station to post bond. If the violator did not have a license, good police procedure would require that the officer obtain some other identification and determine the ownership of the vehicle.

Plaintiff first contends that the trial court committed prejudicial error in giving defendants’ instruction No. 7. The instruction, IPI Instruction 12.04, is as follows:

“More than one person may be to blame for causing an injury. If you decide that the defendants were negligent and that their negligence was a proximate cause of injury to the plaintiff’s decedents, it is not a defense that some third person who is not a party to the suit, may also have been to blame.
“However, if you decide that the sole proximate cause of injury to the plaintiff’s decedents was the conduct of some person other than the defendants, then your verdict should be for the defendants.”

Plaintiff properly argues that the second paragraph of the instruction should be given only when there is evidence that a third person was the sole proximate cause of the occurrence. However he argues further that in the instant case Flair’s conduct could not be considered the sole proximate cause of the accident, and that the court should have given the jury only the first paragraph of the instruction. With this latter contention we disagree.

We recognize that an intervening criminal act does not necessarily break the causal connection between the original negligent act and the injury if the intervening act is probable and foreseeable. Ney v. Yellow Cab Co., 2 Ill2d 74, 117 NE2d 74 (1954). And in the Ney case, the court held that whether an intervening criminal act was foreseeable depends upon the circumstances of the case, and therefore whether the injury was a proximate cause of the original negligence is ordinarily a question of fact.

However in Anderson v. Jones, 66 Ill App2d 407, 213 NE2d 627 (1966), this court at page 412 set forth the following salient factors to be considered in determining whether an intervening act was the proximate cause of the injury:

“. . . (a) lapse of time; (b) whether the force initiated by the original wrongdoer continued in active operation up to the injury for which recovery is sought; (c) whether the act of the intervener can be considered extraordinary rather than usual or normal and (d) whether the intervening act was a normal response to the situation created by the wrongdoer or an extraordinary response.”

In the instant case, Flair’s conduct was not, as claimed by plaintiff, an ordinary flight from arrest with which police officers are constantly faced. He had been stopped for a traffic violation, and had submitted to the officers quietly and courteously. There was also testimony, although contradicted, that he had not been drinking. As directed by the police officers, he followed the squad car for some distance before attempting to flee. During the ensuing chase, he drove at speeds of 100 miles per hour, and turned off his headlights before the collision. Under those facts and circumstances, Flair’s acts could be considered an extraordinary response to the conduct of the police officers in permitting him to drive to the police station. A jury could well determine that Flair’s conduct was the sole proximate cause of the injury, and the trial court was justified in giving the instruction in its entirety. The jury was also instructed as to the definition of proximate cause. We find no error in the giving of instructions.

Plaintiff next contends that certain remarks made by counsel for defendants in his opening statement constituted prejudicial error. He stated as follows:

“Because, although this is a very tragic, tragic occurrence and I am also a parent, and I am sure many of you in my questioning are also parents. But the evidence will show that these gentlemen, the defendants, too are parents and I don’t believe that you, after the evidence is heard and the laws applied, have the right to shift the burden to these gentlemen and their children for this tragic occurrence.”

Plaintiff offered no objection to the statement at the time nor did he make a motion for a mistrial. Ordinarily where no timely objection is made to improper argument, any error is waived. Cochran v. Parker, 91 Ill App2d 56, 233 NE2d 443 (1968). However, as plaintiff points out, if counsel engages in conduct so prejudicial and reprehensible that the other party cannot receive a fair trial, a reviewing court will consider such assignments of error even though no objection was made and no ruling made or preserved in the trial court. Muscarello v. Peterson, 20 Ill2d 548, 170 NE2d 564 (1960); Belfield v. Coop, 8 Ill2d 293, 134 NE2d 249 (1956). In the case at bar, we do not consider the reference by defense counsel to defendants’ children in his opening statement to have been of such a nature or so prejudicial that it could be considered by this court as reversible error without objection having been made. This is particularly true since these remarks were made in reply to an opening statement made by counsel for plaintiff in which he cried while stating that the deceased parents would never return to the two minor children. We believe that any error was waived by failure to object.

Cases cited by plaintiff in support of its contention that it is not necessary to make an objection to preserve the error are all distinguishable from the instant case. In the Belfield case, supra, counsel in argument referred to defendants at various times as thieves and defrauders, continually belittled opposing counsel, and inferred that he was not reputable. In the Muscarello case, supra, an employee of defendant deleted from a medical report furnished to plaintiff a paragraph indicating that there was a causal connection between plaintiff’s injuries and the accident in question. In Sommese v. Maling Bros., Inc., 36 Ill2d 263, 222 NE2d 468 (1966) counsel improperly informed the jury that his opponent had “slipped” in a special interrogatory, and also improperly explained the meaning of the special interrogatory.

As we have stated, counsel for plaintiff made no objection to the remarks in the opening statement. The record reveals that the opening statements were made on Friday afternoon. On the following Tuesday, after much of plaintiff’s case had been presented, counsel for plaintiff first called the court’s attention to the comment about defendants’ children which had been made in the opening statement. He argued to the trial court that these remarks by defense counsel amounted to informing the jury that defendants had no insurance, and that he should be allowed to give an instruction that defendants were indemnified by the Village and that he should also be allowed to so argue to the jury. At the instructions conference, the trial judge refused to give such an instruction, and refused to allow counsel for plaintiff to refer to insurance in his closing argument. We find that the trial judge ruled properly in finding that the reference to defendants’ children was not an attempt by the defense to interject insurance in the case, but rather a response to an emotional opening statement made by counsel for plaintiff. To have allowed plaintiff to argue the presence of insurance or indemnification would have compounded a harmless error to which plaintiff had made no objection.

Plaintiff also argues that counsel for defendant committed prejudicial error in closing argument when he commented without objection by plaintiff, that Plair, who was the sole cause of the deaths, had not been sued. Prior to suit, Flair’s insurance carrier had paid plaintiff $18,000 in exchange for a covenant not to sue. As we have noted, defendants were entitled to argue that Plair alone was at fault. While the argument that Plair was not sued was improper, in the absence of a timely objection, the error was not so prejudicial as to prevent the plaintiff from receiving a fair trial. See Hendler v. Wolozin, 105 Ill App2d 132, 245 NE2d 74 (1969).

Plaintiff next contends that the trial court committed reversible error in restricting the attendance of the two Sengelaub children at the trial. The record reveals that both boys were presented to the jury while their grandfather was testifying, and that they left the courtroom with him at the conclusion of his testimony. The record also indicates that this procedure was not only acceptable to plaintiff, but that in fact, plaintiff suggested that this be done, so that the boys would not disrupt the court proceedings. Plaintiff cannot now complain that such a procedure was improper.

Finally, plaintiff argues that the verdict was against the manifest weight of the evidence. As we have stated, under the facts and circumstances of the instant case, the jury could determine that the sole proximate cause of this accident was the conduct of James Plair. The verdict was not against the manifest weight of the evidence.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Cook, Jr., Defendant-Appellant.
    Gen. No. 52,727.
    First District, Fourth Division.
    July 23, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

Robbery. Ill Rev Stats (1965), c 38, § 18-1. Armed Robbery. Ill Rev Stats (1965), c 38, § 18-2.

DEFENSE AT TRIAL

Alibi.

JUDGMENT

After a bench trial, defendant was found guilty of armed robbery and sentenced to a term of 3 to 7 years.

POINTS RAISED ON APPEAL

(1) The method of identification of defendant was improper and highly prejudicial to defendant.

(2) Defendant was not proven guilty beyond a reasonable doubt.

EVIDENCE

Mrs. Emily Kuldanek, for the State

At about 11:30 p. m. on April 13, 1967, she returned home by cab from a dinner engagement. She alighted from the cab at the house next to her own and proceeded home. As she approached her house, she noticed a man walking toward her. When she arrived at her front stairs, the man, who was then three or four feet away, said, “I’m going to take your money.” She ran screaming up the front stairs and rang the doorbell with her right hand. The man pursued and started pulling her purse, which was held on her left arm. After a struggle, the man got the purse and ran away with it. At that moment, her husband and her brother came out of the door and began chasing the man. Neighbors joined in pursuit, but the man got away.

She lives on a block where there is a streetlight on each corner and one in the middle of the block. The lighting conditions were very good. The man who robbed her was wearing a ¾-length black leather coat, dark slacks, and dark shoes. He held a shiny object in his right hand which was several inches long, but she could not tell if it was a weapon.

She went to the police station that night and talked to Officers Stewart and Wiser. About an hour and a half later, she was taken to Cook County Hospital where she saw the man who robbed her lying on a cot, with a policeman standing nearby. She had been told earlier that the police had shot the man she was to view. That night, the purse which had been taken from her was returned to her at the police station by Officer Wiser.

She identified defendant in court as the man who had robbed her.

Police Officer Richard Wiser, for the State

At about 11:30 p. m., on April 13, 1967, he and his partner, Officer William Stewart, were cruising in an unmarked car in the neighborhood of Mrs. Kuldanek’s home, when they saw a man run over a railroad embankment toward them and almost into their car. He was wearing a ¾-length leather jacket and dark pants, and was carrying a purse in his left hand and a nickel-plated revolver in his right. Wiser and his partner got out of the car and ordered the man to stop. When the order was disobeyed, the two policemen chased him down a T-alley and fired several warning shots. Wiser got separated from his partner and for about 40 seconds he lost sight of the man they were chasing. Then he saw defendant running out of a gangway, heard some shots, and saw defendant fall. He observed defendant, who was shot twice, lying in the street with the revolver by his side.

He recovered the purse and took it to the police station where he inventoried it, and then returned it to the owner, Mrs. Kuldanek.

Police Officer William Stewart, for the State

(His testimony was substantially the same as that of his partner, Officer Wiser.) When the chase started, Stewart ordered the man to halt and, when he did not do so, he fired two warning shots. The man dropped the purse and went over an eight-foot-high fence. The witness couldn’t get over the fence, so he fired another warning shot. The man turned and pointed his gun at the witness, who then fired two shots, and defendant fell. (He fired five shots altogether.) Officer Wiser arrived, and both the purse and gun were recovered.

He returned to the police station where he met Mrs. Kuldanek. About an hour and a half later, he went with her to the hospital. On the way to the hospital, he told her he had shot the man who he thought had taken her purse. In the presence of a police officer assigned to the hospital, Officer Wiser, the witness, and hospital personnel, Mrs. Kuldanek identified defendant, lying on a cot, as the man who robbed her.

Fred Cook, defendant, on his own behalf

On the night of April 13, 1967, he spent about two and one-half hours at a lounge called Blue Bahama, located at Ogden and Avers. He knew everyone in the lounge and spent the time with a friend named Killer Brown and a girl named Dorothy. He left the lounge about 11:00 p. m. At about 11:30 p. m., he was walking to a restaurant in the 2100 block of South Central Park, when he heard some shots. He was hit in the back of the arm and fell to the ground. The policemen ran up and emptied his pockets.

He was then taken to County Hospital, and was there for three hours before they operated on him. He was conscious but did not see Mrs. Kuldanek there. The first time he saw her was in Felony Court when they bound him over to the grand jury. At that time she said she thought he was the man and then she said she was positive he was the one. He never had a chance to say a thing.

He denied owning a gun, or ever having seen the one which was admitted in evidence until he came to court that day.

OPINION

(1) Defendant contends that the circumstances of his identification at the hospital were so unnecessarily suggestive and conducive to irreparable mistaken identification that he was denied due process, and that, as a result, the in-court identification by Mrs. Kuldanek was so highly prejudicial as to deprive him of a fair trial.

In Stovall v. Denno, 388 US 293, it was held that a confrontation between a victim and an accused, within the totality of the circumstances surrounding it, may be so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process of law; and that an in-court identification based on such a confrontation is therefore inadmissible. See People v. Moore, 104 Ill App2d 343, 244 NE2d 337. Thus, to attack the admissibility of an in-court identification, a defendant must show that the circumstances of the pretrial identification fell within this rule. See People v. Nelson, 40 Ill2d 146, 150, 238 NE2d 378; and People v. McMath, 104 Ill App2d 302, 244 NE2d 330. Where a defendant does present sufficient evidence to establish the unfairness of the pretrial identification confrontation, an in-court identification may nevertheless be admissible if it is shown, by clear and convincing evidence, that the courtroom identification had an independent origin, arising from an earlier uninfluenced observation of the defendant. See People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152; and People v. McMath, supra.

During direct examination, Mrs. Kuldanek described the man who took her purse, and then positively identified defendant as that man. It was brought out, on cross-examination, that she had met and talked with the arresting officers. During the course of the conversation, the officers said they had shot a man, who might have been the robber, and they took her to the hospital to view him an hour and a half after the robbery. There she saw defendant lying on a cot, in the presence of the arresting officers, the hospital police officer, and the hospital personnel, and identified him as her robber.

The facts and circumstances of this hospital identification may well have been unnecessarily suggestive. Stovall v. Denno, supra; Palmer v. Peyton, 359 F2d 199; People v. Ballott, 20 NY2d 600, 286 NYS2d 1, 233 NE2d 103. The practice of one-man “showups,” when not necessary, is condemned as being grossly suggestive, even though such practice may be justified under some circumstances. Stovall v. Denno, supra. Here, defendant had been shot, but there appeared to have been no fear for his survival since the bullet was not removed for at least another hour and a half. It also seems highly probable that a lineup could have been arranged for a later time without much concern over deterioration of the victim’s memory. Defendant points out, too, that there was no urgency in the indentification to avoid a needless detention of defendant.

Mrs. Kuldanek, however, had previously observed defendant at the time of the crime and had been able to give a thorough description of him. Her unshaken testimony was that she had observed defendant as she left the cab and watched him approach to a distance of three feet. He followed her up the front stairs of her house, and they were face to face as they struggled for her purse. She also followed him as he fled the scene. The street was well lighted, and she was able to see him clearly. There is no evidence of any failure of the victim to identify defendant when given an opportunity to do so, and she did not make any conflicting identification. Not to be overlooked in this case, also, is the strong corroborating testimony of the two police officers who recovered Mrs. Kuldanek’s purse from the possession of defendant very shortly after the robbery. See People v. Bey, 42 Ill2d 139, 144, 246 NE2d 287. These facts convincingly disclose an uninfluenced observation of defendant, prior to and independent of the showup, adequate to serve as the basis for the in-court identification.

Our decision on this point is, we believe, within the interpretation given Stovall by the Illinois Supreme Court. See People v. Nelson, 40 Ill2d 146, 151, 152, 238 NE2d 378, where the court said:

The defendant’s argument flies in the face of the record which clearly shows that the defendant was identified as the purchaser independently of and uninfluenced by any viewing at the attempted lineup. ... It is plain that the identification of the defendant could be said to have been established apart from and independent of the attempted lineup. (Emphasis supplied.)

See also People v. Brown, 20 NY2d 238, 282 NYS2d 497, 229 NE2d 192.

In this regard, the cases of People v. Speck, 41 Ill2d 177, 192-193, 242 NE2d 208, and People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152, are important. The Speck case held that in a hospital identification, not significantly different from the one in the case before us, there was nothing fundamentally unfair in the totality of the circumstances because of the witness’ prior opportunity to observe the killer at the time of the murders in question. Later, in the Blumenshine case, the court, citing Speck, reemphasized this point as one of the circumstances which would negative the due process aspects of an otherwise unfair viewing of a suspect alone.

In our view, it should make no difference whether an identification procedure is or is not unnecessarily suggestive so long as the record clearly shows a prior observation of defendant sufficient to serve as an independent origin for the in-court identification. People v. Blumenshine, supra; and People v. McMath, 104 Ill App2d 302, 312-313, 244 NE2d 330. The ability of a witness-victim to identify his attacker cannot reasonably be said to have been erased from his mind simply because a policeman may improperly suggest that a suspect is, indeed, the one the victim thought he was.

This conclusion finds strong support in the Supreme Court’s recent decision in Blumenshine, supra. There the court found a police station confrontation to have been improperly suggestive. Unlike the situation disclosed by the record now before us, however, the court found the Blumenshine record inadequate to permit “an ‘informed judgment’ as to whether the witnesses’ identifications of the appellant were based on observations independent of and uninfluenced by the improper identification proceedings at the police station.” The court also noted that, apart from the identification testimony, “no substantial evidence was presented by the State to connect the appellant with the offense.” Here, too, our record is very different, as we have pointed out, in regard to the police recovery of the victim’s purse from defendant’s possession as he was fleeing. The record in Blumenshine being inadequate to permit decision on the point, the court vacated the judgment and returned the case to the trial court for a hearing as to the independent origin of the witnesses’ in-court identifications. If, at such a hearing, the identifications are shown to have been independent of the improper police station confrontation, the trial court, under the Supreme Court’s directions, would then enter a new judgment reinstating the conviction. In that event, the record in Blumenshine, and the essence of the decision in that case, would coincide with what we found to exist in McMath, supra, namely, an unfairly suggestive police station identification, but with the in-court identification being admissible as having its origin in an opportunity to observe which was prior to and independent of the improperly staged identification confrontation.

The record now before us is, in our opinion, more than adequate to establish the original opportunity of the identifying witness to observe her attacker at the time of the crime. We find, therefore, that this prior uninfluenced observation constituted a sufficiently independent origin to support her in-court identification.

(2) Defendant also contends that, in light of the circumstances of the identification and his alibi defense, he was not proven guilty beyond a reasonable doubt. We think he was. Defendant first claims that his identification was doubtful, vague, and uncertain; that in the excitement of the struggle for the purse, Mrs. Kuldanek could not have had a good look at him. He also suggests that she had poor eyesight because, before identifying defendant positively in court, she said, “I can’t see very good from here” [the witness stand]. These suggestions are directly contradicted by her careful and unshaken testimony. It is true that where a conviction rests upon an identification which is doubtful, vague, and uncertain, it will be reversed. People v. Gardner, 35 Ill2d 564, 221 NE2d 232; People v. McGee, 21 Ill 2d 440, 173 NE2d 434; People v. Gooden, 403 Ill 455, 86 NE2d 198. This is ultimately a question for the trier of fact, however, whose duty it is to consider contradictory testimony, and to determine the credibility of the witnesses, and the weight to be given their evidence. People v. Coulson, 13 Ill2d 290, 149 NE2d 96; People v. Kirilenko, 1 Ill2d 90, 115 NE2d 297. We have examined the record and find more than adequate identification evidence to establish defendant’s guilt beyond a reasonable doubt.

Defendant also claims that his alibi testimony was sufficient to raise a reasonable doubt of his guilt. He argues correctly that evidence of alibi cannot be disregarded where the only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime charged, and where the entire record reveals reasonable doubt of guilt because of an uncertain identification. People v. Gooden, 403 Ill 455, 86 NE2d 198; People v. McGee, 21 Ill2d 440, 173 NE2d 434; People v. Gardner, 35 Ill2d 564, 221 NE2d 232. However, the record here shows that both the strong circumstantial evidence introduced by the police and the positive identification testimony of the victim, link defendant to the crime. On the other hand, defendant offered no corroboration for his alibi and could not entirely account for the circumstances of his arrest. A defendant’s unsupported alibi testimony has the inherent weakness of being dependent upon his own credibility despite his obvious interest in the outcome of the case. People v. Sutton, 110 Ill App2d 232, 249 NE2d 215; People v. Williams, 17 Ill2d 193, 200-201, 161 NE2d 295. This, also, is essentially a question for the trier of fact, and the trial judge did not believe defendant in this instance. We can find no basis in the record to disturb his decision.

DECISION

The judgment of the Circuit Court is affirmed.

Affirmed.

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

       Suppose that a woman is robbed by her own brother whom she has seen every day for many years; that the police apprehend him and then conduct an unnecessarily suggestive showup at which the victim identifies him as her robber. Would it make any sense to say that her later courtroom identification should be inadmissible because of the improper pretrial identification procedure? We think not. Nor do we believe that Stovall requires any such result, since the opinion in that case referred the courts to “the totality of the circumstances” in reaching a decision on this issue. Obviously, very few cases would be as clear as the one hypothesized in this footnote. We mean only to point up that a prior independent origin of a witness’ ability to identify the accused can furnish insulation against an “unnecessarily suggestive” confrontation to prevent its being “conducive to irreparable mistaken identification” (Stovall, supra, page 302), and may thus be available to overcome completely the defect in a courtroom identification otherwise arising from an unfair identification confrontation in the interim between crime and trial.


text:
    People of the State of Illinois, Appellee, v. Jackie Campbell, Appellant.
    Gen. No. 52,941.
    First District, Fourth Division.
    July 23, 1969.

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

delivered the opinion of the court.

Defendant was charged with the crime of armed robbery, in violation of Ill Rev Stats 1965, c 38, § 18-2. After a bench trial, he was found guilty and sentenced to the penitentiary for a term of 3 to 5 years. Defendant appeals, contending that his constitutional right to a jury trial was not understandingly waived, and that, because the identification was unsatisfactory, he was not proved guilty beyond a reasonable doubt.

Irene Garrison testified that she was the building manager of the premises located at 6263 South Harper Avenue, Chicago, and was so employed on March 1, 1967, at about 11:15 a. m. One of the tenants, Irene Gray, came down to pay her rent, and three people, two men and a woman, followed her. One of the trio was defendant. After Mrs. Gray paid her rent they all left, but the three returned. Defendant asked complainant if she had any vacancies in the building, and she replied that she had none. She spoke to the defendant from inside an apartment with the door ajar and chained. Defendant then kicked the door in, and knocked her to a chair. The couple accompanying defendant dragged her to the kitchen, gagged her and tied her hands, and started beating her. They took $200 from her. Defendant, who was armed with a knife, also took a ring from her finger and gave it to the woman with him. The woman companion told defendant to cut the witness’s finger off. The witness sustained injuries to her face and shoulder as a result of the beating. The entire occurrence took about 25 minutes. She had never seen defendant prior to the robbery. She learned from the police officer that defendant was related to the tenant, Irene Gray, but she had not discussed the crime with Irene Gray. She first identified defendant from a photograph brought to her by the police officer. She testified on cross-examination that the officer brought 3 or 4 pictures of the same man. On May 17, 1967, the complainant testified at a preliminary hearing, and identified defendant as one of her assailants.

Officer William Mines of the Chicago Police Department testified that he investigated the robbery and first saw the complainant on the date of the occurrence. At that time she was bruised about the face, her eyes were puffed, closed and blackened; her arm was bruised; and she had a large clump of hair pulled from her head. She did not know the names of her assailants. On the following day he brought a group of 6 or 7 photographs to complainant. One of the pictures was of defendant. The witness testified that Mrs. Garrison identified defendant as one of the robbers.

On cross-examination the officer testified that the reason he brought a photograph of defendant to the complainant was because his name was given to the witness by Irene Gray. He was not sure whether Irene Gray was there when he brought the pictures to the complainant. After Mrs. Garrison viewed the photographs and made an identification of Jackie Campbell, Irene Gray came into the apartment. At that time she stated that she knew Jackie Campbell as her ex-brother-in-law and that he was one of the three who had been in the apartment and was one of the offenders. The officer brought complainant and Irene Gray to headquarters to view photos, and had driven complainant alone to get a warrant and to the preliminary hearing.

For the defense, Joseph Campbell, defendant’s brother, testified that Irene Gray told him that as far as she knew, Mrs. Garrison could not identify defendant as one of the robbers.

Defendant first contends that his constitutional right to a jury trial was not understandingly waived.

On December 14, 1867, the date of trial, counsel for defendant stated that he had conferred with defendant regarding his right to a jury trial, and that he wished the court to explain further to defendant about that right. At that point defendant indicated that he would like another discussion with his attorney in order to get his attorney’s opinion. Defense counsel then requested and was granted a recess to again discuss defendant’s right to a jury trial. After the recess defendant announced that on advice of his attorney he wanted a bench trial. He also informed the court that he understood what a jury trial was. The court again informed defendant that he was entitled to a jury trial unless he waived it. The court instructed counsel for defendant to read aloud the jury waiver form. After the reading of the form, defendant again stated that he understood, and signed the jury waiver.

The Criminal Code, Ill Rev Stats 1965, c 38, § 103-6 provides as follows:

“Every person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court.”

In People v. Wesley, 30 Ill2d 131, 195 NE2d 708 (1964), our Supreme Court stated at p 133 that:

“There is no specific or defined formula which the trier of fact is to follow, or from which to judge whether a waiver is understandingly made, and we believe of necessity that the determination must rest upon the facts of each particular case.”

In the instant case, the record not only reveals that counsel and the court repeatedly explained to defendant his right to a jury trial, but it also discloses that the defendant by his statements and responses to the court’s questions clearly understood his rights and had been well informed of the differences between a jury and a bench trial. Nowhere in the record is there any expression by defendant which would suggest confusion or lack of understanding. While he may have followed the advice of his counsel in waiving the jury trial, it is evident that defendant made his own decision in so doing. We find that defendant knowingly waived his right to a trial by jury.

Defendant next contends that he was not proved guilty beyond a reasonable doubt because the identification made by the complainant was unsatisfactory, vague and invalid. He argues that the identification was insufficient to support a conviction.

One of the essential points which the State must prove beyond a reasonable doubt is the identity of the accused as the one who committed the crime charged. People v. Gold, 361 Ill 23, 196 NE 729 (1935); People v. Dante, 35 Il;l2d 538, 221 NE2d 409 (1966). But “where the only question is one of identification, . . . the testimony of one credible witness, if positive, is sufficient to convict, . . . and where a case is tried by the court without a jury, the determination of the credibility of the witnesses and the weight to be accorded their testimony is committed to the trial judge, and unless the judgment is found to rest on doubtful, improbable or unsatisfactory evidence or clearly insufficient evidence, a reviewing court will not substitute its judgment for that of the court below.” People v. Garrett, 82 Ill App2d 192, 200, 226 NE2d 429 (1967). In weighing the evidence of identification, the surrounding circumstances, together with the probability or improbability of an adequate opportunity for definite observation must be considered. People v. Marshall, 74 Ill App2d 472, 221 NE2d 128 (1966).

The testimony of Mrs. Garrison, who had an adequate opportunity to observe defendant for nearly a half hour in the daytime, was clear and positive. She testified that it was defendant with whom she had a conversation through the partially opened door; that it was he who kicked the door in, first entered and knocked her into a chair; and that it was he who took the ring from her finger.

There were no internal discrepancies in complainant’s testimony. The only discrepancy in the State’s case involved her testimony and that of the police officer concerning the pictures. She testified that the officer showed her 3 or 4 pictures of the same man, while he testified that she selected defendant’s picture from photos of several men. Defendant does not argue that the pretrial procedure involving the photographs was so suggestive as to render the in-court identification inadmissible. See Stovall v. Denno, 388 US 293 (1967). And we do not believe that such a discrepancy discredits complainant’s testimony or affects her identification of defendant.

During cross-examination, the police officer was asked, referring to his conversation with the complainant on the date of the robbery, whether the complainant stated: “I was robbed by Jackie Campbell.” The officer answered: “No.” From that answer defendant attempts to argue that complainant was unable to identify defendant. Such an argument is untenable. The answer indicated only that complainant did not know the names of any of her assailants at that time.

While we agree with defendant that the testimony of the police officer that the complainant identified defendant was hearsay, and therefore inadmissible if timely objection were made, this court has held recently that the introduction of such testimony under similar circumstances constituted harmless error. People v. Smith, 105 Ill App2d 8, 245 NE2d 23 (1969); People v. James, 109 Ill App2d 328, 248 NE2d 777 (1969). In the instant case, the officer’s testimony was merely cumulative, and we do not believe it to have been prejudicial. It should also be noted that defendant made no objection to the officer’s testimony.

The officer testified that he inserted defendant’s picture in the group shown to the complainant because Irene Gray had told him that defendant was her ex-brother-in-law and that he was one of the three who had been in the apartment and was one of the robbers. While the testimony concerning his conversation with Irene Gray constituted hearsay evidence, the testimony was elicited by defendant on cross-examination. Since it was adduced by defendant, he cannot now complain that it was inadmissible.

The hearsay testimony allowed into evidence at trial was introduced either without objection or on behalf of defendant. In this trial, its admission into evidence was not prejudicial error. Moreover, the testimony of the complainant was credible. Her identification of the defendant was clear and positive, and was sufficient to support the conviction.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DRUCKER, P. J. and ENGLISH, J., concur.


author: MR. PRESIDING JUSTICE DRUCKER

text:
    The People of the State of Illinois, ex rel. Emily Forbrich, Plaintiff-Appellee, v. Francis A. Forbrich, Defendant-Appellant.
    Gen. No. 53,186.
    First District, Fourth Division.
    July 23, 1969.

      Walter R. Stewart, of Champaign, and Theodore Pollock, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Daniel P. Coman, Chief of Civil Defense, and Ronald Butler, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant filed a petition under section 72 of the Civil Practice Act, Ill Rev Stats 1967, c 110, § 72, to vacate a judgment entered against him “by consent” in a proceeding under the Uniform Reciprocal Enforcement of Support Act, Ill Rev Stats 1967, c 68, § 50, et seq., for support monies in behalf of a spouse and minor children. Plaintiff waived filing an answer to the petition for post-judgment relief. After a hearing an order was entered denying the relief sought. On appeal from that order defendant raises several issues, the primary one being:

[wjhether the facts and circumstances in this case show that the defendant was denied adequate notice of the proceedings, an opportunity to be heard, the assistance of counsel, the equal protection of the laws and procedural due process of law.

EVIDENCE

It is undisputed that on April 5, 1966, the Cook County Department of Public Aid, Court Service Division, received from the Family Court of Suffolk County, New York, pursuant to the Uniform Reciprocal Enforcement of Support Act, a sworn petition, sworn testimony and an exemplified copy of a judge’s certificate ordering defendant to pay support in the sum of $80 per week. Upon receipt of said document, a caseworker for the Court Service Division notified defendant by letter and requested him to present himself at the Chicago office. After obtaining one postponement because his attorney was out of town, defendant did appear for a conference with caseworker Thomas F. Coen, the substance of which is disputed. A draft order which purported to show defendant’s agreement to pay support to his family in the amount of $130 per month was presented to him. He signed it under the heading “approved” and also signed a statement, which was part of the draft order, that he voluntarily entered his appearance, waived service of summons and had read and understood the contents of the above mentioned agreement; however, defendant struck the word “voluntarily” from this latter statement before he signed it.

On March 12, 1968, defendant petitioned the trial court for post-judgment relief. After a hearing, the motion was denied and defendant appealed.

Testimony of Defendant:

He received the letter requesting a conference, but he got one postponement because his attorney was out of town. His request for a second postponement, because his attorney was still out of town, was denied by caseworker Coen. He then went to the conference thinking it was a conciliation conference. He did not know Coen’s position, but thought that Coen was either a judge or a policeman or someone with authority. During the interview Coen made some notes and then left the room for about ten minutes. When Coen returned he had a draft order which he showed to defendant. It was at this point that defendant realized what the conference was really about. Defendant read the draft order, and then Coen told him to sign it. Defendant said to Coen that he did not want to sign it until his attorney had looked at it. Coen told him to sign it “or else.” Defendant then asked to be allowed to take a copy of the draft order to an attorney, and the request was denied. Coen then told him either to sign the order immediately or he would be thrown in jail. He believed that Coen had the power to throw him in jail immediately, so he signed the order. When Coen was not looking, defendant struck the word “voluntarily” from the order. He asked for a copy of the draft order and that request was denied.

Testimony of Thomas F. Coen, for the State:

Defendant did come to his office for the second appointment. The first appointment had been cancelled because defendant’s attorney was not available. Defendant did not bring his attorney to the conference, and did not request a second postponement. Under his direction a secretary prepared the draft order. He did not see defendant strike out the word “voluntarily.” He did not threaten defendant with incarceration, nor did he tell the defendant to sign the draft order “or else.” He told defendant that if he refused to sign the draft order the matter would be referred to the State’s Attorney’s office for legal action. Defendant did not request a copy of the draft order which he signed.

OPINION

In the instant case the judgment is based upon a “consent order” which defendant alleges that he signed involuntarily and under duress. Coen admits that he told defendant that if defendant did not sign the order, the matter would be turned over to the State’s Attorney’s office for legal action. Defendant testified that Coen told him to sign the order or he would go to jail. It may well be, however, that this was defendant’s reflexive interpretation of Coen’s threat to turn the case over to the State’s Attorney for legal action. The defendant testified that he thought that Coen had the power to imprison him. The striking out of the word “voluntarily” indicates that defendant was performing an act against his will; and it appears that defendant performed that act because of the threat imposed by Coen. We need not decide whether Coen actually threatened defendant with jail; it is sufficient that Coen refused to allow defendant to seek legal advice and an explanation of his rights, and then obtained defendant’s signature on the order after threatening to send the matter to the State’s Attorney for legal action. Indeed, the State’s Attorney recognizes the possibility of a respondent unwillingly signing a consent order because of ignorance of his legal rights. In an affidavit attached to plaintiff’s brief as Appendix A, William H. McGowan, Director of the Division of Court Services, explains the procedures to be followed in handling cases under the Uniform Reciprocal Enforcement of Support Law. Among them is the following:

That the respondent is informed of his rights to seek legal counsel and that he is also informed that he may have his case tried by a judge in a court of law, if he so desires.

In the instant case those procedures were not followed and defendant was, perhaps unintentionally, coerced into signing the order.

Under these circumstances and because of the importance of insuring that each individual will not be deprived of a hearing, the judgment is reversed and cause is remanded with directions to vacate the judgment of July 26, 1966, and for further proceedings not inconsistent with this opinion.

Reversed and remanded.

ENGLISH and McNAMARA, JJ., concur.