author: MR. JUSTICE LYONS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Phillip Spagnola (Impleaded), and John Ligue (Impleaded), Defendants-Appellants.
    Gen. Nos. 51,681, 51,682, 51,683,51,684, 51,686, 51,687, 51,688, 51,689. (Consolidated.)
    First District, Second Division.
    April 7, 1970.

      Robert J. Waaler, of Urbana, for appellants.
    No brief for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

In a two-count indictment, the defendants, Phillip Spagnola and John Ligue, ages 18 and 21 respectively, and two other youths, William McAvoy and Kenneth Cunningham, were jointly charged with murder in violation of Ill Rev Stats (1963), c 38, § 9-1 (a) (1) or (a) (2). McAvoy’s motion for a severance was granted and he received a separate trial. He did not testify in the instant case and this record is silent as to the ultimate disposition of his case. The other three coindictees, Spagnola, Ligue and Cunningham, were jointly tried by a jury, were convicted of murder and judgments were entered. In a separate opinion filed today, we affirmed Cunningham’s conviction. See People v. Cunningham, 123 Ill App2d 190, — NE2d —. After judgments were entered against Spagnola and Ligue for murder and their oral post-trial motions for a new trial and in arrest of judgment were denied, Spagnola was sentenced to fifteen to thirty years in the State Penitentiary and Ligue received a twenty to forty-year sentence.

At the time of sentencing, one joint indictment was pending against Spagnola and Ligue for armed robbery and two two-count indictments for attempt murder and aggravated battery—the latter two indictments arising out of the same criminal transaction as the murder but having two other victims. After being sentenced on the murder charge, both Spagnola and Ligue waived their right to a jury trial as to these other three indietments. The court heard stipulated testimony and entered six judgments finding each defendant guilty of armed robbery and attempt murder. Spagnola was sentenced to two to seven years for armed robbery and two to five years on each conviction of attempt murder, the sentences to run concurrently with the imprisonment earlier imposed for murder. Ligue received concurrent sentences of five to ten years for armed robbery and three to five years on each conviction of attempt murder. Although Spagnola filed a notice of appeal challenging his convictions for armed robbery and attempt murder, the instant brief in behalf of Spagnola and Ligue concerns itself only with their convictions for murder and Ligue’s convictions for armed robbery and attempt murder. No point is raised in this brief concerning Spagnola’s convictions for armed robbery and attempt murder although all eight appeals were consolidated in this court. These three judgments, affecting Spagnola only, are accordingly affirmed.

Turning to the contentions raised by the parties in their joint brief, Ligue alone urges that all four of his convictions (i. e. murder, armed robbery and attempt murders) should be reversed because the trial court erred in not granting his written motion for discharge based upon the State’s alleged failure to try him within 120 days following his arrest. Regarding their murder convictions, Spagnola and Ligue raise four points on appeal: (1) the court erred in denying their motion challenging the array of prospective jurors; (2) they were not criminally responsible for the spontaneous act of their companion, Cunningham, which caused death, in that the prosecution failed to show a common design to do an unlawful act, nor that they participated in the assault causing the victim’s death; (3) the court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter; and (4) improper conduct by the decedent’s widow before the jury together with the introduction, over objection, of incompetent evidence by the prosecutor and his prejudicial rebuttal final argument deprived them of a fair trial.

As to the speedy trial contention urged by Ligue, we note that he was arrested in February, 1965, was never admitted to bail, and his jury trial began in January, 1966. In the interim, the public defender was appointed to represent him beginning with his arraignment in March, 1965. The defendant voiced no objection to this representation until August 16, 1965, when the common-law record indicates that he appeared in court and moved that the Public Defender be replaced by a Chicago Bar Association lawyer. The common-law record also reveals that this motion was denied, after argument, and the cause was continued to August 27, 1965, by “the express consent of the State’s Attorney and the defendant and his counsel.” The common-law record also shows that on September 17, 1965, the defendant renewed his request for a Chicago Bar Association lawyer and the court, again with “the express consent and agreement of the State’s Attorney and the defendant and his counsel,” continued the case to October 11, 1965, for the appointment of such counsel. On this latter date the public defender was granted leave to withdraw and a private attorney was appointed. When Ligue’s case was reached for trial on January 24, 1966, he filed his motion to dismiss the four indictments pending against him on the grounds that his right to a speedy trial had been violated. He urged that the 120 days be counted from September 17, 1965, when he had renewed his motion for substitution of attorneys.

On the basis of this record, we hold that the defendant Ligue agreed to these continuances so that the 120-day rule found in Ill Rev Stats (1963), c 38, § 103-5 (a) began to run from the date to which the case was continued for the appointment of new counsel which would be October 11,1965, in the instant case. People v. Kuczynski, 33 Ill2d 412, 415, 211 NE2d 687, 689 (1965); People v. Barksdale, 110 Ill App2d 163, 166, 249 NE2d 165, 167 (1969). Although the record contains no apparent reason for the trial court’s change of attitude after Ligue renewed his motion for substitution of counsel, the record is clear that Ligue sought this substitution and consented to the continuance to October 11, 1965. Since the defendant was tried within 120 days from October 11, 1965, the trial court properly denied his motion for discharge.

On January 24, 1966, prior to the commencement of the voir dire examination in the murder case involving Spagnola, Ligue and Cunningham as joint defendants, the attorney for Cunningham presented to the court a written “Challenge to the Array of Jurors and Motion for (30) Day Continuance” which was signed by the defendant Cunningham, supported by his affidavit, and had attached to it as exhibits, three newspaper articles which had appeared in the Chicago press. The Challenge alleged that on the preceding Monday, January 17, 1966, a judge sitting in the Cook County Criminal Court Building (not the trial judge sitting in the instant case however) had publicly criticized, discharged and dismissed from future jury service twelve jurors who had returned a not' guilty verdict. The Challenge went on to state that these twelve jurors were part of the same venire from which the defendants’ jury would be selected; that the jurors were discharged because the judge thought a conviction should have been returned and not an acquittal; that these jurors returned to the Criminal Court Building the next morning but were sent home; that these facts had been given publicity by the Chicago newspapers on Wednesday and Thursday, January 18 and 19, 1966; and that as a result of the foregoing factors, a fair and impartial jury could not be selected from this venire. The Challenge concluded with a prayer that the trial be continued for thirty days so that the defendants could select a jury from a new venire. After hearing argument, the court denied the Challenge to the Array and Motion for a Continuance but informed the three defense counsel that each would be permitted the widest of latitude in the ensuing voir dire examination so that each could determine to his satisfaction whether the veniremen knew of this incident and the extent, if any, to which they were influenced by it. The trial court later refused to excuse such prospective jurors for cause requiring the defendants to use their peremptory challenges. The record reveals that the defendants and the State were each allowed a total of sixty (60) peremptory challenges.

In their joint brief before us, Spagnola and Ligue contend that the trial court erred in denying the Challenge to the Array because the reasonable effect of the facts as pleaded in the Challenge, was to leave an impression in the minds of the veniremen that they would be called upon to explain or defend a not guilty verdict and that they could be publicly rebuked by the trial judge for such a verdict and thereby subject to public ridicule. We are of the opinion that the trial judge handled this difficult and delicate matter in a reasonable manner and with the proper exercise of his discretion. Within this factual setting, the proper remedy was to expand the voir dire examination and not to impose a thirty day continuance. It does not follow that the other veniremen would be per se prejudiced against defendants or that they could not return a fair verdict.

The voir dire examination is included in the record before us. The examination of prospective jurors took approximately three days and the trial of the case on the ultimate issues took a like period of time. During the voir dire examination, the trial court informed the prospective jurors on four separate occasions that it had the practice, which it intended to continue, of never commenting on the verdict of the jury. Approximately ninety prospective jurors were examined and the majority of those who were asked the question stated that they had read, in the jury assembly room, the newspaper articles earlier alluded to, but most of them said they were not influenced by it and would continue to follow the dictates of their own conscience. The defendants used their peremptory challenges on those veniremen having a contrary attitude. When twelve jurors were acceptable to both sides and were sworn, the court had excused nineteen prospective jurors for cause and the State had used thirteen of its peremptory challenges whereas the defense had used forty-one. Although the defendants contend that the court erred in refusing their request to challenge for cause all jurors who had read the newspaper articles, they were not prejudiced by this ruling since they had nineteen peremptory challenges remaining at the time the jury was accepted and sworn.

Although many of the prospective jurors stated during voir dire that they had read the newspaper articles in question and a few said they had heard other jurors talking about the articles in the jury assembly room, this alone is not decisive as it is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 US 717, 723 (1961); People v. Williams, 40 Ill2d 522, 531-32, 240 NE2d 645 (1968). Furthermore, the examination of prospective jurors is, in a typical instance of pretrial publicity, probably the most valuable means of ascertaining partiality or indifference among the veniremen. People v. Kurtz, 37 Ill2d 103, 108, 224 NE2d 817 (1967). We have carefully examined the seven hundred and twenty-two page transcript of the voir dire examination presented to us and note that all of the prospective jurors who ultimately made up the final panel of twelve and who were asked the question, stated that what another judge did in an unrelated case and the newspaper publicity given it would not affect their deliberations in the instant case and that it would not be necessary to convict these defendants in order to avoid criticism from the judge presiding at this trial. Some of the twelve jurors acceptable to both sides, including the later foreman of the jury, stated that they thought the other judge was incorrect in criticizing the other jury for doing their duty. The judge presiding at the instant case informed the prospective jurors on four separate occasions that he intended to continue his practice of never commenting on the verdict returned by the jury.

It is also to be noted that when the jury was sworn, the defendants had nineteen unused peremptory challenges. This too indicates that the lawyers for the defendants were of the opinion that these twelve jurors represented a fair and impartial trier of the facts. People v. Sleezer, 9 Ill2d 57, 60-61, 136 NE2d 808 (1956); People v. Williams, 40 Ill2d 522, 531-2, 240 NE2d 645 (1968); People v. Speck, 41 Ill2d 177, 184, 242 NE2d 208 (1968). In our opinion, the defendants were tried by a fair and impartial jury.

Since the defendants contend that they are not criminally responsible for the spontaneous act of their companion, Cunningham, which caused death in that the prosecution failed to show a common design to do an unlawful act, nor their participation in the murderous assault, it becomes necessary to give a summary of the evidence.

This case involves a homicide which occurred in a Chicago tavern at approximately 12:15 a. m. on February 20,1965. It was stipulated that the cause of death of the victim, Jack Naylor, a patron in the tavern, was internal bleeding. Eight other patrons in the tavern testified for the State. Three of them, James Norred, Robert Naylor, brother of the decedent, and Ruby Brookbank were eyewitnesses to the homicide and stated that Cunningham while holding the smaller, narrower end of a pool cue stick in both hands and swinging the pool cue like a baseball bat, struck the deceased a downward blow on the left side of his head. The decedent was unarmed and was sitting at the bar when he was struck. It is undisputed that the defendants, Ligue and Spagnola, were present in the tavern at this time. Disputed at the trial, however, was whether they had their guns drawn immediately upon entering the tavern, thereby subduing the patrons prior to Cunningham’s act, or whether they drew their weapons after á purported melee occurred in the tavern.

James Norred testified that he was in the bar at 11:30 p. m. on February 19, 1965, when Cunningham, Spagnola, Ligue, Ligue’s father, and another youth came in; that he began a conversation with Ligue since they knew each other and it was during this conversation that he heard the bartender, Bennie Micele, while walking away from Ligue, Sr., say the bar was closed and he was not going to serve him. Thereupon the defendant, Ligue, Jr., pointing at the bartender, uttered a profanity and said he was going to get him. Norred also saw a fight beginning at this time between another patron and the defendant Cunningham, but this was stopped at its inception. Cunningham, Spagnola, the Ligues, and the other youth then left the tavern. Norred said he spoke with defendant Ligue in a car before they left and there Ligue repeated his threat to get the bartender and said: “We’re coming back and going to clean the place up, stay on the side.”

About 12:15 a. m., Cunningham, Ligue, Spagnola, and the other youth returned. Spagnola and Ligue entered first with drawn weapons and one of the four told the patrons to get on the floor. Cunningham came to the rear of the tavern and told Norred to get against the wall so he would not get hurt. Norred saw the bartender, Micele, lying under the pool table and the fourth youth was swinging a cue stick in the middle of the tavern while Ligue and Spagnola, at the front of the tavern, continued to hold their drawn weapons and the other patrons got on the floor. After Cunningham struck the decedent, Jack Naylor, Norred saw him hit Bob Naylor and Robert Hill. Spagnola was then looking throughout the tavern for the bartender and upon finding him, Norred stated that Cunningham hit Micele with a cue stick and Spagnola and Ligue kicked and punched him and later all three of them threw pool balls at Micele’s head. The telephone then rang and the four youths started to leave. As Norred went to the phone, he saw the fourth youth hit another patron on the head because he had raised it and Ligue said to Norred: “Don’t answer that phone or I’ll shoot you too.” When they left, Norred answered the telephone but no one was on the line. The police arrived soon thereafter. In conclusion, Norred said he was not hurt in the encounter; none of the patrons were armed nor attempted to strike any of the youths; when he went to look at the decedent after the youths had left, he was unable to hear a heart or pulse beat; and he identified two weapons produced by the State as being in the possession of Spagnola and Ligue at the time of the affray.

On cross-examination, he admitted that when he testified at the Coroner’s Inquest approximately one week after the homicide, he did not state there that he had talked with Ligue in a car where Ligue repeated his threat to get the bartender but he had stated at the inquest that only Cunningham hit the bartender, Micele, with a pool cue, kicked him, and threw pool balls at his head.

The other tavern patrons who testified for the State substantially corroborated Norred’s testimony except that many of them put their heads down when ordered to do so and were not able to see which of the defendants did the striking. Most of them stated that when the bartender refused to serve Ligue’s father, the group said they would be back and they did return approximately thirty minutes later with two weapons. Those asked the question stated there was no argument in the bar with the defendants when they returned but rather the patrons complied with their orders. The bartender, Micele, said he refused to serve them at 11:30 p. m. because they looked under age and had been drinking. He did not see who hit him later and with what he was struck or kicked because his eye was puffed up as a result of the attack and he received eight stitches in his head. Some of the other patrons who testified for the State stated that in leaving the premises, someone in the group said, “We should shoot them all” and another replied, “No, we have done enough damage.”

Two police officers testified for the State. Patrolman Joseph Curtin said he investigated the homicide and beatings at the tavern and returned to the police station when he saw Cunningham and another youth brought in between 4:00-4:15 a. m. on February 20, 1965. He went on to say that based upon his observation of Cunningham he might have been drinking a little but he could not say he was intoxicated. A homicide detective, Leo Wilkosz, testified that on February 22, 1965, at 11:30 p. m. he went to a cottage in LaPorte, Indiana, and there found Spagnola and Ligue apparently alone in the cottage. They were arrested and two loaded guns were found under the mattresses of the bed. These were the weapons recognized earlier by Norred as being in the possession of Spagnola and Ligue in the tavern. Spagnola and Ligue waived extradition and were returned to Illinois.

Three witnesses testified for the defense: Mrs. Ligue, Mrs. Cunningham, and Phillip Spagnola, one of the defendants. Mrs. Ligue stated that she did not see her son after 10 or 11:00 a. m. on February 19, 1965; that he was living at home with her and her husband; and that he was arrested in Indiana at the home of his aunt and uncle, where he frequently visited and to which home he had his own key. Mrs. Cunningham testified that her son lived at home with her; that she ate supper with him at 5:00 p. m. on February 19, 1965; and that when she returned from work that evening at 11:00 p. m., she saw her son again. At that time he was staggering, glassy-eyed and intoxicated but would not go to bed as she wanted. He left the house and she did not see him again until 8:15 a. m. on February 20, 1965 at the police station. In her opinion, when she saw her son at 11:00 p. m., he did not have the ability to think and reason because he was intoxicated.

Phillip Spagnola testified that on February 19, 1965, he drank beer with his friend Ligue from 11:00 a. m. to 11:00 p. m.; that Cunningham and another youth appeared at 6:30 p. m. with a bottle of whiskey and more beer which they drank together; that by 11:00 p. m. he, Spagnola, was drunk when Ligue’s father arrived and they went in a car to Cunningham’s house and then to the bar; that at this time Ligue was also drunk and Cunningham was very drunk. An argument did occur at the bar when they were there the first time but he and Ligue were able to get Cunningham, Ligue’s father and the other youth to leave with them. He could not remember if anyone in the group made any threats to clean up the place or vow to return. After taking Ligue’s father home, the four of them stopped at the home of Ligue’s aunt, where Ligue went in alone and procured two weapons, an automatic and a revolver. They went back to the tavern because someone in the group suggested they return to see what the earlier argument was all about. Spagnola stated that he had no reason for taking the weapon given to him by Ligue; that they said nothing to each other when he accepted the weapon; and that he had no intent to return to the tavern “to clean it up.” The four had no such agreement and they were intoxicated when they appeared again at the tavern. He denied that they entered with drawn weapons but stated that he heard some patron yell “They’re back” and “Watch it” whereupon he saw someone swing a pool cue striking Cunningham across the back or shoulders and then a “big fight” began, causing Ligue and himself to draw their weapons and keep the patrons at the bar from striking them, as they had pool cues in their hands. At this time he and Ligue were at the front of the tavern from which place they never left, whereas Cunningham and the other youth were at the back of the tavern. He denied ever looking for the bartender, Micele, and denied ever beating, kicking, striking, or throwing pool balls at him. He never saw what Cunningham did in the tavern and he did not hear anyone in his group say “Let’s shoot them all” or “We’ve done enough damage.” They all went out the door together and left in their car. On February 21, 1965, he and Ligue went to Indiana, as Ligue had a key to the home there.

We are of the opinion that the State’s evidence, if believed by the jury, did show a common design among the defendants herein and Cunningham to do an unlawful act. While mere presence at the scene of the offense is not enough to constitute a person a principal, circumstances may show there is a common design to do an unlawful act to which all assent. People v. Thicksten, 14 Ill2d 132, 150 NE2d 813 (1958). The circumstances in this case presented by the State from which the jury could reasonably find a common design to do an unlawful act are: the prior argument in the tavern with the bartender and the group’s threat to return; their actual return within a half-hour but not before they had armed themselves with two guns in an apparent attempt and intent to subdue the patrons in the tavern who outnumbered them; the fact that Spagnola and Ligue entered first with drawn weapons which induced the patrons to submit to their commands, and that they kept these weapons on the patrons throughout the affray. Furthermore, none of the defendants attempted to stop Cunningham from his assaults or opposed him in any way and they all fled together but not before Ligue told Norred not to answer the telephone. These facts support a reasonable inference that the unlawful use of force having possible dangerous consequences was agreed upon by all the members of the group so that Spagnola and Ligue are criminally responsible for the acts of Cunningham. People v. Rybka, 16 Ill2d 394, 404-5, 158 NE2d 17 (1959); People v. Tarver, 381 Ill 411, 415-16, 45 NE2d 630 (1943). The jury was instructed on criminal accountability or responsibility in the language of the statute, Ill Rev Stats (1965), c 38, § 5-2 (c). We hold that the State's evidence amply supported the giving of such an instruction.

The defendants also urge that the trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter. This contention is based upon the assertion that when Cunningham struck the decedent with a pool cue, he did so without any knowledge that such an act would result in death. We do not agree with this reasoning. Criminal recklessness is the intent required to reduce the degree of homicide from murder to the lesser included offense of involuntary manslaughter. See Ill Rev Stats (1965), c 38, § 9-3 (a). If the act is performed with malice, either express or implied, the offense is not involuntary manslaughter, but is murder. People v. Marrow, 403 Ill 69, 73-74, 85 NE2d 34 (1949). In the case at bar, the intent or state of mind which Cunningham possessed when he struck Jack Naylor is shown by the surrounding circumstances. It is undisputed that Cunningham deliberately struck the deceased in the head with the fat end of a pool cue which he was swinging like a baseball bat and which apparently caused instantaneous death. The act was done without provocation as the deceased was unarmed and was sitting at the bar. The evidence amply supports a finding, beyond a reasonable doubt, that the act was not done recklessly, but rather was performed with implied malice. The intent to take human life may be inferred from the character of the assault. People v. Coolidge, 26 Ill2d 533, 536-37, 187 NE2d 694 (1963). The manner in which the pool cue was used in this case made it a deadly weapon. People v. Dwyer, 324 Ill 363, 155 NE 316 (1927). Since the evidence would not support a verdict of involuntary manslaughter, the court did not err in refusing to give the involuntary manslaughter instruction tendered by the defendants.

Finally,-the defendants contend that errors occurring during the trial deprived them of a fair trial. During direct examination of the State’s first witness, Mrs. Smeltz, the decedent’s mother, and after she had testified that she last saw her son being carried out of Mercy Hospital on a stretcher, an incident occurred before the jury. The decedent’s widow, who had been sitting in the courtroom, rose, faced the jury,. and cried out: “Please, please. No, no, no, no.” With both hands extended over her head and screaming, she then ran to the rear of the courtroom and out into the corridor, where her cries were heard for almost a minute. The jury was excused, whereupon the court learned that this woman was the widow of the deceased. The court then barred her from the building and denied the defendants’ motian for a mistrial. When the jury returned, the court immediately instructed them to totally disregard the incident. This admonition was repeated by the court the next day and, at the end of the trial, a written instruction was given to the jury which stated: “The court instructs the jury that they are to disregard any show of emotion or demonstration made in the courtroom.” The defendants allege that the very nature of this emotional incident deprived them of a fair trial before a dispassionate jury and that the court erred in not declaring a mistrial.

It is our opinion that the trial court’s prompt actions in immediately admonishing the jury to disregard this spontaneous emotional demonstration coupled with its giving of the later cautionary jury instruction alleviated the effects of this outburst on the jury and insured that the defendants were tried by an impartial jury. People v. Herbert, 361 Ill 64, 71-72, 196 NE 821 (1935); People v. Lion, 10 Ill2d 208, 216, 139 NE2d 757 (1957). It should also be noted that this jury was selected for its independence in judgment. The extensive voir dire examination emphasized this point. Based upon this factor and the trial court’s affirmative reaction to this spontaneous occurrence, we hold that the denial of the mistrial was proper.

The State presented evidence of the defendants’ arrest in Indiana two days after the homicide. The defendants objected to the introduction of such evidence on the grounds that there was no showing of flight and hence such evidence was prejudicial. In this appeal the defendants contend that such evidence was incompetent because there was no showing by the State that they went to Indiana with a consciousness of guilt, as they allegedly had no knowledge that a homicide had occurred in the tavern. Alternatively, it is urged that their trip to Indiana could have been motivated by their involvement in an armed robbery which occurred several days prior to the homicide, so that evidence of their arrest in Indiana was incompetent at their trial for murder. We find no merit in either contention. Although the armed robbery occurred prior to the homicide, the defendants did not leave Illinois until after the homicide; therefore, if they did flee the jurisdiction with a consciousness of guilt concerning the homicide, such flight would be competent at their trial for murder as circumstantial evidence of their guilt. We are of the opinion that the evidence presented at the murder trial presented sufficient facts from which a reasonable inference could be drawn that the defendants did flee the jurisdiction with a consciousness of guilt of the homicide. Spagnola and Ligue along with Cunningham and another youth all returned to the tavern within one-half hour after the preceding argument and after vowing to do so. If the jury believed the State’s evidence, Spagnola and Ligue had weapons drawn when they returned and kept the patrons subdued while Cunningham struck the deceased. There was evidence that Spagnola and Ligue participated in the beating of Micele, the bartender, and that all four youths left the tavern together when the telephone rang, leaving the scene in the same auto. Such evidence supports an inference that the youths were acting in concert in the tavern and thereafter fled the scene and later Spagnola and Ligue fled the jurisdiction with a consciousness of guilt. The evidence of their arrest in Indiana was competent and the court was also correct in giving a flight instruction to the jury.

At the close of the prosecutor’s rebuttal final argument, the defendants made a motion for mistrial which was denied. This motion was premised on the grounds that the final argument of the State in rebuttal was too lengthy, introduced prejudicial matter and exceeded the bounds of legitimate reply. The defendants renew these contentions on appeal. We have carefully reviewed the prosecutor’s closing argument in rebuttai and have found no error therein. Its length appears to have been necessitated by the fact that each of the three defendants had his own counsel, so that the prosecutor, in rebuttal, had to reply to three closing arguments by the defense. The rebuttal argument did not introduce new matters to which the defense could not respond before the jury, but was merely a reply to the final arguments of the three defense counsels. When the prosecutor attempted to comment on a statement of its witness which was not in evidence, the court immediately sustained the objection of defense counsel and informed the jury to disregard it. The rebuttal closing argument was proper here.

We have carefully reviewed the record in this case and are of the opinion that the defendants received a fair trial and their guilt of murder was proved beyond a reasonable doubt. The judgments are affirmed.

Judgments affirmed.

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


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Cunningham (Impleaded), Defendant-Appellant.
    Gen. No. 51,723.
    First District, Second Division.
    April 7, 1970.

      James L. Coghlan, Coghlan and Joyce, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Francis X. Riley, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

In a two-count indictment, the defendant, Kenneth Cunningham, age eighteen, and three other youths, William McAvoy, Phillip Spagnola and John Ligue were jointly charged with murder in violation of Ill Rev Stats (1963), c 38, §9-1 (a)(1) or (a)(2). McAvoy’s motion for a severance was granted and he received a separate trial. He did not testify in the instgnt casé and this record is silent as to the ultimate disposition of his case. The three other coindictees, Cunningham, Spagnola and Ligue were jointly tried by a jury, were convicted of murder and judgments were entered. Spagnola and Ligue have appealed from these adverse judgments along with others against them which judgments we today affirmed. See People v. Spagnola (Impleaded) and Ligue (Impleaded), 123 Ill App2d 171, — NE2d —. After judgment was entered against Cunningham for murder and his written post-trial motion for a new trial was denied, he was sentenced to 20-40 years in the State Penitentiary. In this appeal, he does not question the sufficiency of the evidence but maintains that he did not receive a fair trial due to five trial errors.

Specifically, he contends that: (1) he was denied the right to be tried by a fair and impartial jury due to prejudicial pretrial newspaper publicity informing the venire that twelve of their fellow jurors had been excused from jury service by a judge, not the jurist who presided at the instant case however, because they had returned a not guilty verdict with which the judge publicly disagreed; (2) the trial court erred in denying the defendant’s motion for a mistrial when the widow of the deceased ran screaming from the courtroom during the testimony of the State’s life and death witness and also when the jury commingled with relatives of the deceased and other veniremen; (3) the prosecution deliberately prejudiced the defendant by informing the jury of a prior statement made by a State’s witness and by commenting on this statement to the jury in closing argument; (4) the trial court’s refusal to give the defendant’s tendered voluntary and involuntary manslaughter instructions was reversible error; and (5) the court erred in submitting a flight instruction to the jury which prejudiced the defendant since the prosecution presented no evidence that he attempted to flee from the scene of the crime.

On January 24, 1966, prior to the commencement of the voir dire examination in the instant case, the attorney for Cunningham presented to the court a written “Challenge to the Array of Jurors and Motion for (30) Day Continuance” which was signed by the defendant Cunningham, supported by his affidavit, and had attached to it as exhibits, three newspaper articles which had appeared in the Chicago press. The Challenge alleged that on the preceding Monday, January 17, 1966, a judge sitting in the Cook County Criminal Court Building (not the trial judge sitting in the instant case, however) had publicly criticized, discharged and dismissed from future jury service twelve jurors who had returned a not guilty verdict. The Challenge went on to state that these twelve jurors were part of the same venire from which the defendant’s jury would be selected; that the jurors were discharged because the judge thought a conviction should have been returned and not an acquittal; that these jurors returned to the Criminal Court Building the next morning but were sent home; that these facts had been given publicity by the Chicago newspapers on Wednesday and Thursday, January 18 and 19, 1966; and that as a result of the foregoing factors, the venire was not lawfully constituted and a fair and impartial jury could not be selected from this venire. The Challenge concluded with a prayer that the trial be continued for thirty days so that the defendants could select a jury from a new venire. After hearing argument, the court denied the Challenge to the Array and Motion for a Continuance but informed the three defense counsel that each of them would be permitted the widest of latitude in the ensuing voir dire examination so that each could determine to his satisfaction whether the veniremen knew of this incident and the extent, if any, to which they were influenced by it. The trial court later refused to excuse such prospective jurors for cause, requiring the defendants to use their peremptory challenges. The record reveals that the defendants, Cunningham, Spagnola and Ligue, and the State were each allowed a total of sixty (60) peremptory challenges.

We doubt if this issue was properly brought to the trial court’s attention by virtue of a Challenge to the Array. We recognize that defendant’s counsel alleged in his motion that the venire was not lawfully constituted due to the dismissal of twelve jurors from future jury service, but such dismissal occurred subsequent to the selection of the array. A challenge to the array goes to the form and manner of selecting the venire and relates to the legality of selecting, summoning, or impaneling the venire or array. Bruen v. People, 206 Ill 417, 423-24, 69 NE 24 (1903); Borrelli v. People, 164 Ill 549, 558-60, 45 NE 1024 (1897). It will only be allowed upon some ground affecting the validity of the whole array growing out of the proceedings in selecting and summoning the jurors composing the array. United States v. Gordon, 253 F2d 177, 184-85 (CA 7th Cir 1958). In the instant case, the defendant’s Challenge raised no question as to the drawing, selecting, or impaneling of the array. However, because the State did not object to the Challenge but answered it on its merits, we shall do the same.

In our opinion, the trial court handled this delicate matter in a proper manner. The remedy was not to impose a thirty day continuance but rather was to expand the voir dire examination so as to determine the effect of the pretrial publicity on the prospective jurors. It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presented in court. Irvin v. Dowd, 366 US 717, 723 (1961); People v. Williams, 40 Ill2d 522, 531-32, 240 NE2d 645 (1968). Furthermore, the examination of prospective jurors is, in a typical instance of pretrial publicity, probably the most valuable means of ascertaining partiality or indifference among the array. People v. Kurtz, 37 Ill2d 103, 108, 224 NE2d 817 (1967). We do not think that the incident alluded to in the Challenge which involved twelve other jurors and another trial court judge in an unrelated case must lead to the presumption, as a matter of law, that all other veniremen in the array no longer could be fair and impartial to the defendant.

The voir dire examination is included in the record before us. The examination of prospective jurors took approximately three days and the trial of the case on the ultimate issues took a like period of time. During the voir dire examination, the trial court informed the prospective jurors on four separate occasions that it had the practice, which it intended to continue, of never commenting on the verdict of the jury. Approximately ninety prospective jurors were examined and the majority of those who were asked the question stated that they had read, in the jury assembly room, the newspaper articles earlier alluded to, but most of them said they were not influenced by it and would continue to follow the dictates of their own conscience. The defendants used their peremptory challenges on those veniremen having a contrary attitude. When twelve jurors were acceptable to both sides and were sworn, the court had excused nineteen prospective jurors for cause and the State had used thirteen of its peremptory challenges whereas the defense had used forty-one. Although the defendants contend that the court erred in refusing their challenge for cause as to all jurors who had read the newspaper articles, they were not prejudiced by this ruling as they had nineteen peremptory challenges remaining at the time the jury was sworn.

We have carefully examined the seven hundred twenty-two page transcript of the voir dire examination presented to us and note that all the prospective jurors who ultimately made up the final panel of twelve and who were asked the question stated that what another judge did in an unrelated case and the newspaper publicity given it would not affect their deliberations in the instant case and that it would not be necessary to convict these defendants in order to avoid criticism from the judge presiding at this trial. The judge presiding at the instant case informed the prospective jurors on four separate occasions that he intended to continue his practice of never commenting on the verdict returned by the jury. Some of the twelve jurors acceptable to both sides, including the foreman of the jury, stated that they thought the other judge was incorrect in criticizing the other jury for doing their duty.

It is also to be noted that when the jury was sworn, the defendants had nineteen unused peremptory challenges. This too indicates that the attorneys for the defendants were of the opinion that these twelve jurors represented a fair and impartial trier of the facts. People v. Sleezer, 9 Ill2d 57, 60-61, 136 NE2d 808 (1956); People v. Williams, 40 Ill2d 522, 531-32, 240 NE2d 645 (1968); People v. Speck, 41 Ill2d 177, 184, 242 NE2d 208 (1968). Counsel for the defendant states that he did not use the remaining peremptory challenges because he did not want to antagonize the trial court. However, the voir dire record does not indicate that the trial court ever became impatient with the defendants but rather it is evident to use that he, in fact, did allow an exhaustive voir dire examination so as to protect the rights of the defendants. Furthermore, the trial court had said earlier that the defendants had the right to exercise all of their sixty peremptory challenges. His subsequent attitude never wavered from this position.

The defendant’s reliance upon People v. Schraeberg, 347 Ill 392, 179 NE 829 (1932), in support of his contention that he did not have to exhaust all his peremptory challenges in order to preserve the point for appeal purposes is misplaced. In that case, the reviewing court held that since the defendant’s Challenge to the Array should have been sustained in the trial court because of an irregularity in the selection of the array, it became unnecessary for him to exercise all of his peremptory challenges in order to preserve the point. We have stated earlier in this opinion, however, that the defendant’s Challenge to the Array was properly denied by the trial court in the instant case. Therefore, when the defendants accepted twelve jurors, although nineteen peremptory challenges were still available for their use, we can reasonably assume that their attorneys were of the opinion that the jury was fair and impartial.

The other cases relied upon by the defendant are not persuasive. In both Irvin v. Dowd, 366 US 717 (1961) and Rideau v. Louisiana, 373 US 723 (1963), two murder cases, it was held that the defendant’s motion for change of venue should have been granted because of cooperation between the police or prosecution and the news media which made it constitutionally impossible to select an impartial jury. In Irvin, the prosecutor and police issued press releases, which were intensively publicized by the news media, stating that the defendant had confessed to the six murders committed in their community whereas in Eideau, a twenty minute “interview” between the defendant and the sheriff of the parish was held in a jail and put on film with accompanying sound track. This- “interview” consisted of interrogation by the sheriff and admissions by the defendant that he had committed the armed robbery, kidnapping, and murder which had occurred the day before. The “interview” was shown on local television for three consecutive days. In both Irvin and Eideau, defense counsel had exhausted peremptory challenges and unsuccessfully attempted to excuse for cause prospective jurors who had read the news releases or had seen the televised “interview.”

Eight of the twelve jurors in Irvin admitted, before hearing any testimony, that they thought the defendant to be guilty of murder although they did say they could be fair and impartial to him. The reviewing court held this response showed actual prejudice to the defendant and that his 14th Amendment due process rights were violated whereas in Eideau, the court held that identifiable prejudice did not have to be shown in that case since the “interview” televised in the community on three separate occasions was in reality the defendant’s trial at which he pleaded guilty. The subsequent jury trial was but a hollow formality. In two other cases relied upon by the defendant, Estes v. Texas, 381 US 532 (1965) and Sheppard v. Maxwell, 384 US 333 (1966), it was held that identifiable or actual prejudice in violation of due process rights did not have to be shown by the defendant because the procedures employed by the State, live television coverage of the court proceedings in Estes and massive pretrial newspaper coverage in Sheppard, involved such a probability of resulting prejudice that the trial itself was deemed inherently lacking in due process. The factual setting of the instant case in no way approaches that found in the cited cases however.

After carefully reading the other cases relied upon by the defendant, People v. Murawski, 394 Ill 236, 68 NE2d 272 (1946); People v. Hryciuk, 5 Ill2d 176, 125 NE2d 61 (1955); People v. Cain, 36 Ill2d 589, 224 NE2d 786 (1967); McLendon v. United States, 2 F2d 660 (CCA 6th Cir 1924); and Boyles v. United States, 295 F 126 (CCA 6th Cir 1924), we conclude that they too are factually distinguishable from the instant case. We adhere to our opinion that this record shows that the defendants were tried by a fair and impartial jury.

Secondly, the defendant urges that the trial court erred in denying the defendant’s motion for a mistrial when the widow of the deceased ran screaming from the courtroom during the testimony of the State’s life and death witness and also when the jury commingled with other veniremen and relatives of the deceased. The defendant was tried jointly with Spagnola and Ligue. In People v. Spagnola (Impleaded) and Ligue (Impleaded), 123 Ill App2d 171, — NE2d —, filed today, we held that the trial court, by its immediate affirmative response to the widow’s emotional outburst coupled with its later cautionary instruction given to the jury in writing, protected the defendants’ right to be tried by a dispassionate and impartial jury. The alleged commingling of the jury, however, raises an issue which was not presented in the companion case of People v. Spagnola and Ligue.

On the last day of the trial, the defense attorneys brought two things to the attention of the trial court at the noon recess as the basis for their motions for a mistrial. One defense lawyer said he had heard some conversation in the corridor a few minutes earlier between the twelve jurors and some of the women who had been prospective jurors as the twelve jurors were leaving for lunch. He could not determine what was said, however. Another defense attorney later said he had been informed that when the jury returned from lunch and were leaving the elevator on their way back to the courtroom, they were met at the elevator by the decedent’s sister, two brothers, and someone else connected with the family who were standing in front of the jury elevator. The attorney received this information from the family of one of the defendants, but they did not know if a conversation ensued or if these people stationed themselves deliberately at this position.

As to the first incident of commingling, the court questioned, in chambers, the two bailiffs who had escorted the jurors to lunch and learned that only a brief social conversation had occurred as two women non-jurors had said to two women jurors: “Call me tonight” and “It was nice knowing you.” Nothing further was said. The court denied these motions for mistrial and this is alleged as error.

We find no error here. As a result of the court’s examination of the bailiffs, it was learned that only a brief social conversation occurred between two women jurors and some of the women who had gathered in the corridor that afternoon. The merits of this case were not discussed. The jury returned its verdict of guilty before leaving that evening. The defendant was not prejudiced by this social conversation. As to the meeting between the relatives of the deceased and the twelve jurors, there was no showing that this was deliberately planned. It is just as reasonable to assume that it happened accidentally since this was a public trial and the relatives of both the deceased, except his widow, and the defendants were in the building that day. The motions for mistrial were properly denied.

The defendant also contends that reversible error occurred when the prosecutor informed the jury of a prior statement, not in evidence, made by a State’s witness and when he later commented on it in closing argument. The record reveals that after the court had recessed for the evening, one of the defense attorneys asked the prosecutor for a statement made by a State’s witness to the police soon after the murder had occurred. This request was made out of the presence of the jury and immediately after the witness had completed his testimony on direct examination. The next morning the defense attorney, again out of the presence of the jury, informed the court that he had not received a copy of the report from the prosecutor. The State’s Attorney replied that the evening before he had furnished the only copy to the other defense attorney. Sharp words were then exchanged between the prosecutor and the defense attorney who had sought the statement but had not yet received a copy. The court allowed him fifteen minutes to read the document. The jury was then brought in and the prosecutor said: “Your honor, I’d like the record to show at this time that we have furnished all three defense counsel with a copy of the statement made to the police by witness Norred on February 20, 1965.” Defense counsel objected to the prosecutor making this statement in the presence of the jury and stated that he had received his copy only fifteen minutes earlier. The objection was overruled as the court said it had recessed for fifteen minutes thereby giving defense counsel time to read the statement. The witness, Norred, was not cross-examined as to the contents of his written statement.

In closing rebuttal argument, the prosecutor stated that the defense lawyers had unsuccessfully attempted to contradict the witness, Norred. Continuing, the prosecutor said: “The defense lawyers were furnished, as you saw here in the courtroom, with his complete written statement to the police which he made immediately after this incident. They did not cross-examine him on it.” The defense lawyers objected to this remark on the grounds that the prosecutor was attempting to create an inference before the jury that the written statement, which was not in evidence, contained some matter damaging to the defense since the witness, Norred, was not cross-examined concerning it. The court sustained the objection and instructed the jury to disregard any references made to the statement given by Norred to the police. Later, a written instruction was given to the jury informing them that they were to disregard any argument or statement made by opposing counsel not based on the evidence and if they had heard any evidence in the case which the court afterwards struck out, they were to wholly disregard it in arriving at their verdict.

Although we do not approve of the prosecutor’s conduct in delivering this written statement to the defense attorneys in the presence of the jury and in later attempting to comment upon it in closing argument to the jury, having held such conduct to be reversible error in two prior cases [People v. Beard, 67 Ill App2d 83, 214 NE2d 577 (1966); People v. Lowe, 84 Ill App2d 435, 228 NE2d 563 (1967)], we are of the opinion that in the case at bar, this conduct did not result in reversible error. When the prosecutor said he was now tendering the written statement of the witness to all three defense counsel, the jury was diverted from the impropriety of this remark since defense counsel objected saying he had received his copy only fifteen minutes earlier and the court replied that it had been in recess so that the statement could be read by the defense. The subject was not mentioned again until the prosecutor attempted, in closing rebuttal argument, to comment upon the written statement. The court sustained the objection and immediately informed the jury to disregard any references to Norred’s police statement. A later written jury instruction reminded the jury to disregard such matters in arriving at their verdict. In our opinion, the actions of the trial court resulted in keeping this record free from reversible error. People v. Murray, 307 Ill 343, 138 NE 681 (1923); People v. Lion, 10 Ill2d 208, 216, 139 NE2d 757 (1957). Furthermore, the evidence in the instant case so strongly supports the verdict that we cannot say the jury was influenced by the prosecutor’s conduct.

The defendant also urges that the trial court committed reversible error in refusing to give to the jury the defendant’s tendered instructions on voluntary and involuntary manslaughter. This contention requires a brief summary of the evidence. The facts are set out in detail in the companion case of People v. Spagnola and Ligue, 123 Ill App2d 171, — NE2d —, filed today. Only a brief summary of the facts will be given here.

The State presented evidence that the defendant, Cunningham, struck the decedent, Jack Naylor, a downward blow on the left side of the head while holding the smaller, narrower end of a pool cue stick in both hands and swinging the pool cue like a baseball bat. The deeedent, a patron in the tavern where the homicide occurred, was unarmed and was sitting at the bar when struck. It was stipulated that the cause of his death was internal bleeding. The blow was struck at approximately 12:15 a. m. on February 20,1965.

Other evidence presented by the State showed that Spagnola and Ligue were holding weapons on the other patrons at this time and that Spagnola, Ligue, Cunningham, and another youth had come back to the tavern approximately forty-five minutes after Ligue had vowed to return. Earlier, an argument had ensued in the bar between the bartender and Ligue’s father when the bartender refused to serve him. Ligue’s son promised to return so as “to get” the bartender and “clean up” the place. After taking Mr. Ligue home, the four youths returned to the tavern, but only after arming themselves with two weapons, a revolver and an automatic. Spagnola and Ligue entered first with weapons drawn and told everyone to get on the floor. The homicide and other beatings, including that of the bartender, ensued soon thereafter. Witnesses for the State testified that there was no melee in the tavern when the youths returned with weapons but rather the patrons complied with any orders given them. When the telephone rang, the four youths left the tavern together. Thereafter, a patron went to the decedent but was unable to hear a heart or pulse beat. A police officer stated that he saw defendant Cunningham brought into the police station about four hours after the trouble in the tavern had occurred.

Mrs. Cunningham testified for the defense and said that when she saw her son at 11:00 p. m. on February 19, 1965, he was staggering, glassy-eyed and intoxicated but would not go to bed as she wanted. She did not see him again until 8:15 a. m. on February 20, 1965, at the police station. In her opinion, when she saw her son at 11:00 p. m., he did not have the ability to think and reason because of his intoxication.

The only occurrence witness to testify for the .defense was Phillip Spagnola, one of the defendants. He stated that he and Ligue had been drinking since 11:00 a. m. on February 19, 1965, and that Cunningham joined them at 6:30 p. m. with whiskey and more beer. He went on to say that when they went to the tavern at 11:30 p. m. everyone was drunk and Cunningham was very drunk. They returned to the tavern at 12:15 a. m. on February 20, 1965. He denied that he and Ligue entered with drawn weapons but stated that he heard some unidentified patron yell, “They’re back” and “Watch it” whereupon some person, unidentified, swung a pool cue striking defendant Cunningham across the back or shoulders. A “big fight” then began. Spagnola stated that he never saw what Cunningham did in the rear of the tavern after the alleged melee began.

In support of his contention that the voluntary manslaughter instruction should have been given, the defendant relies upon a specific subsection of the voluntary manslaughter statute in Illinois, Ill Rev Stats (1963), c 38, § 9-2(a), which states that a person 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, or (2) another whom the offender endeavors to kill, but he negligently or accidentally causes the death of the individual killed.

In People v. Wax, 75 Ill App2d 163, 183, 220 NE2d 600 (1966), it was held that numerous quarrels only between the defendant and his wife concerning his wife’s paramour were not sufficient provocation to reduce the homicide from murder to voluntary manslaughter when the husband subsequently killed the paramour. The reviewing court concluded that the voluntary manslaughter instruction tendered by the defendant was properly refused since the passion engendered by the conduct of persons other than the decedent (i. e., the arguments between the defendant and his wife to which the paramour was not a party) could not be made into provocation within the language of the voluntary manslaughter statute in Illinois.

In the instant case, the State’s witnesses, most of whom were patrons in the tavern when the homicide occurred, testified that there was no melee when the youths returned with drawn weapons. The only evidence of an affray in the tavern came from Spagnola, one of the joint defendants and the only defendant who chose to testify. It is to be noted that Spagnola did not state that the decedent struck the defendant across the back or shoulders with a pool cue. Nor was it his testimony that some other identified person so struck the defendant, and in attempting to kill that person, the defendant negligently or accidentally struck the decedent. Spagnola only stated that some unidentified patron allegedly struck Cunningham across the shoulders provoking a melee and causing Spagnola and Ligue to draw their weapons at that time. He went on to say that he never saw what Cunningham did at the rear of the bar after the affray began. In our opinion, the voluntary manslaughter instruction offered in the language of the statute and tendered by the defendant was properly rejected because there was no evidence in the record which, if believed by the jury, would support a voluntary manslaughter verdict.

As to involuntary manslaughter, the defendant relies upon the evidence of his voluntary intoxication. He did tender an involuntary manslaughter instruction in the language of the statute, Ill Rev Stats (1963), c 38, § 9-3(a), which was refused by the court. In our opinion the court acted properly here. Voluntary intoxication is an affirmative defense if it negatives the existence of a mental state which is an element of the offense. Ill Rev Stats (1963), e 38, §6-3(a). In a line of cases in this jurisdiction beginning apparently with People v. Cochran, 313 Ill 508, 145 NE 207 (1924), and continuing through People v. Tanthorey, 404 Ill 520, 89 NE2d 403 (1950); People v. Brown, 415 Ill 23, 112 NE 2d 122 (1953); People v. Strader, 23 Ill2d 13, 177 NE2d 126 (1961); and People v. Hicks, 35 Ill2d 390, 220 NE 2d 461 (1966); reviewing courts have held that where voluntary intoxication is so extreme as to suspend entirely the power of reasoning, the defendant cannot be convicted of murder since he is incapable, due to his voluntary drunkenness, of forming an intent to kill. In other words, he is incapable of killing with malice, express or implied, which is required to support a murder conviction.

This voluntary intoxication does not result in the acquittal of the defendant however. He could be convicted of voluntary manslaughter which requires neither a specific intent nor malice. These judicial holdings are a humane manifestation of the common law which recognizes man’s human frailties. We therefore are of the opinion that although voluntary intoxication, in a proper case, might reduce the degree of homicide from murder to voluntary manslaughter so that a defendant’s voluntary manslaughter instruction must be given to the jury, it does not reduce it one degree lower to involuntary manslaughter.

In addition, involuntary manslaughter is not a specific intent crime but rather involves the general criminal intent of recklessness. See Ill Rev Stats (1963), c 38, § 9-3 (a) and § 4-6. IPI—Criminal, § 24.02, p 415 states that voluntary intoxication is not a defense where the mental state involved is recklessness. Since voluntary intoxication is not an affirmative defense to the charge of involuntary manslaughter, it cannot be used to reduce the degree of homicide from murder to involuntary manslaughter. We therefore hold that the trial court did not err in refusing to instruct the jury as to involuntary manslaughter.

Finally, the defendant urges the court erred in submitting a flight instruction to the jury which prejudiced him since there was no evidence that he attempted to flee the scene of the crime with a consciousness of guilt and for the purpose of evading arrest. This contention was not included in the defendant’s written post-trial motion and is considered waived for appeal purposes. People v. Irwin, 32 Ill2d 441, 207 NE 2d 76 (1965); People v. Gratton, 28 Ill2d 450, 192 NE2d 903 (1963). Nevertheless, we have considered the point and find it to be without merit. The defendant and three other youths entered the tavern together and left together after the telephone rang and after a homicide and other beatings had occurred in the tavern. The State’s evidence, if believed, showed the youths, including this defendant, to be active participants in these offenses. This evidence supports a reasonable inference that they all left the scene of the crimes in an attempt to evade arrest. The flight instruction was properly given as to all the defendants at their joint trial.

We have carefully reviewed the record in this case and are of the opinion that the defendant received a fair trial and was convicted of murder beyond a reasonable doubt. The judgment is affirmed.

Judgment affirmed.

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


author:
MR. PRESIDING JUSTICE McCORMICK
      BURKE, J.,

text:
    Chris Opheim, Plaintiff, v. Norfolk & Western Railway Co., Defendant and Third-Party Plaintiff-Appellee, v. Dealers Transit, Inc., Truck Insurance Exchange, et al., Third-Party Defendants-Appellants.
    Gen. No. 53,411.
    First District, Second Division.
    April 7, 1970.

      BURKE, J., dissenting.
    Paulson & Ketchum, of Chicago (H. Tim Hoffman and Gordon H. S. Scott, of counsel), for appellants.
    Lord, Bissell & Brook, of Chicago (R. R. McMahan, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

This is an appeal from an order granting summary judgment in favor of Norfolk & Western Railway Co. (Norfolk), third-party plaintiff and appellee, as to Count II of the third-party complaint against Dealers Transit, Inc. (Dealers), and its liability insurer, Truck Insurance Exchange, appellants and third-party defendants. The third-party action only is involved in this appeal.

The trial court entered an order reciting that Dealers and its insurer had made a binding election to assume the defense of Norfolk against the original plaintiff, Chris Opheim, and directed them to assume the defense of Norfolk and indemnify it. The order was based on Dealers’ acceptance of Norfolk’s defense for a brief period at the outset of the case, and was entered while the case was still in the pleading stage, before any significant steps had been taken in preparation of the trial of the principal claim. The order contained a finding that there was no just reason for delay in enforcement or appeal. The court decided the case solely on the pleadings and on affidavits supporting and opposing Norfolk’s motion for summary judgment.

The questions presented for review are:

1) whether the trial court was correct in entering a summary judgment that imposed an indemnity agreement by estoppel on Dealers; and
2) whether, absent a detrimental change of position, Norfolk was entitled to take. advantage of the material mistake that had caused Dealers and its insurer initially to accept defense of the principal claim when that mistake was either mutual or known to Norfolk’s attorney.

Dealers had a contract with Norfolk whereby Dealers was to inspect, unload and assemble automobiles brought to Norfolk’s yard on car carriers. Chris Opheim, an employee of Dealers, was injured while performing duties under the contractual agreement. He sued Norfolk for damages he allegedly sustained as a result of the accident. Norfolk was served on Septemher 21, 1967, and turned the matter over to its attorneys, Lord, Bissell and Brook. A Mr. Peterson of that firm wrote Dealers and demanded that they fulfill their obligations under a hold-harmless clause which was part of the contract with Norfolk, and which provided, in part, that Dealers would

“be responsible for and shall indemnify and hold harmless Railroad Company from any and all loss, damage, liability, cost or expense resulting from injury to or death of persons (including agents, servants and employees of the parties hereto) arising out of, directly or indirectly, the performance or attempted performance by Contractor of the services contemplated by this agreement, unless caused by the sole negligence of the Railroad Company, its agents, employees, or servants.”

An alternate assertion of Peterson’s was that Dealers’ active negligence in the matter obligated it to indemnify Norfolk. His letter included a request that Dealers assume Norfolk’s defense, and threatened that unless defense was assumed, Norfolk would file a third-party complaint against Dealers. A copy of the letter was also sent to Dealers’ insurer.

On October 20, 1967, a Mr. Reynolds of the carrier’s firm called Norfolk’s counsel and requested a copy of the hold-harmless provision so that the insurance company could evaluate the request for Dealers to assume Norfolk’s defense. On October 26, 1967, the contract was mailed to the insurance company, and on that same day Norfolk’s counsel filed an answer to Opheim’s complaint and a third-party complaint against Dealers.

The following day Reynolds called Norfolk’s counsel to notify him that the ténder of defense was accepted and that he would assign counsel to the case. The conversation was confirmed by letter. The file was assigned to Hinshaw, Culbertson, Moelmann & Hoban, and on November 28, 1967, Norfolk’s third-party complaint was dismissed.

On December 1, 1967, at Hinshaw’s request for investigative material regarding the accident, Norfolk’s counsel sent the law firm a folder bearing Opheim’s name; however, the file contained no information whatsoever about the accident of the current lawsuit, only some material relating to a prior accident of Opheim’s.

On January 10, 1968, 44 days after Dealers and its insurer had entered the case, the tender of defense was revoked. During that time the Hinshaw firm had done nothing but obtain an order permitting them to inspect Opheim’s income tax returns. The revocation was based primarily upon the fact that Opheim’s complaint alleged only that the railroad company had been negligent; that the accident was therefore caused by the negligence, so that the hold-harmless clause was inapplicable by its own terms. The Hinshaw firm filed a motion to withdraw from the case, but the motion was denied. Subsequently, Norfolk’s counsel reentered the case, refiled its third-party complaint against Dealers and its insurer, and sought and obtained summary judgment, which judgment bound Dealers to indemnify the railroad, hold it harmless from any and all loss, damage, liability, cost or expense resulting from Opheim’s injury, and ordered it to assume Norfolk’s defense, since it had made a binding “election.” It is from that judgment that this appeal is taken.

Dealers’ primary argument before this court is that the summary judgment was improper because Norfolk was, and still is, unable to demonstrate in what manner it was prejudiced by Dealers’ short term assumption of the defense. Dealers reasons that whether calling the issue estoppel, election or waiver, there is no prejudice, and to affirm the judgment in this case would create an absolute rule of law in derogation of the law as it now exists. Under the current law an indemnitee must show how it was prejudiced by the withdrawal from the case of the indemnitor. However, if we maintain that in this case the indemnitor was not privileged to withdraw, we would be holding that once an indemnitor enters a defense for his indemnitee he is forever thereafter prevented from withdrawing.

Norfolk argues that we need not concern ourselves at all with the issue posed by Dealers; we are not within the realm of estoppel, but rather, there was an oral contract whereby Dealers agreed to assume the defense. By later tendering its withdrawal Dealers breached its obligation, and accordingly, Norfolk was entitled to the relief given it. As an alternative argument Norfolk suggests that it would be a great travesty of justice were this court to adopt “a rule that prejudice is to be conclusively presumed only when withdrawal occurs after trial.”

According to our understanding, the rule of law is that an insurer is to be considered to have waived his right to assert nonliability if his actions have prejudiced the insured, regardless of the stage of proceedings. The question is one of fact, and there is no rule of law which would dictate that such prejudice could only be shown after the trial. In spite of Dealers’ argument that such a holding would make the reviewing court a mere ad hoc fact finder, we have found in the past that this method has worked well, and that the real travesty would result from establishing an ironclad rule which would fail to take into account the realities of life.

Under the absolute rule approach for which Norfolk is contending, Dealers should not now be allowed to withdraw from its defense of the Opheim suit against Norfolk; yet Norfolk has not been able to show this court in what manner it was harmed by the “false start.” The only thing that occurred during Dealers’ representation of Norfolk was that counsel obtained an order allowing it to see Opheim’s tax returns. Norfolk’s counsel had filed the answer to Opheim’s original complaint, and it filed the answer to the amended complaint. There appears to be no reason for refusing to allow Dealers’ counsel to withdraw.

Norfolk urges that it was prejudiced, and states that it handed over to Dealers its “confidential file” on Opheim which Dealers’ counsel had requested regarding “this occurrence.” What Dealers actually received, and what has been rather ingeniously referred to by Norfolk as its “confidential file” was one which contained nothing regarding the accident which was the subject of the lawsuit. The letter accompanying the file points out, “You will note the enclosures relate to a prior accident.” Norfolk now argues that the file contained valuable “negative” information; namely, that Norfolk did not have a good case against Dealers on its third-party complaint. We find no merit to this argument.

Dealers’ indemnity agreement with Norfolk provides that it will indemnify Norfolk for all liability unless the liability was due to Norfolk’s sole negligence. It remains to be determined whether the liability (if any) was due to Norfolk’s sole negligence. If not, then regardless of any “negative” information, Dealers must indemnify; and if it was, under their own contractual arrangement, Dealers would not be required to indemnify. Consequently, the “negative” information was worth nothing.

Here we would like to bring up an extremely important aspect of this case. It does not involve an insurance contract with a provision whereby the insurance company agrees, among other things, to defend the insured in any and all actions which may be brought against it if such actions involve matters under policy coverage. The provision states only that Dealers, under specified conditions, agrees to indemnify Norfolk for “all” liability. Dealers does not agree to assume the defense of actions brought against Norfolk. In most insurance cases cited to this court in the briefs of the instant appeal, the issue was whether an insurance company had waived its right to assert nonliability under a policy of insurance which it had issued to a particular insured. In each of those cases two factors exist which are absent in the case before us, and we feel that their absence is of critical importance.

First, as we have already pointed out, there is no express understanding in the instant case that the indemnitor would assume the defense of the indemnitee. Under their contract, if Norfolk was ultimately adjudged liable and it was determined that Norfolk was not solely negligent, then Dealers would have to indemnify Norfolk for its loss, including attorney’s fees, a principle long established in Illinois law. This is quite different from saying, however, that with an agreement to indemnify, but with no agreement to defend, one is conclusively bound to defend once he enters a defense, and without any showing that the party for whom the defense was entered has been prejudiced. In other words, Dealers has the choice of either defending or not defending, but is bound by all that is determined in the principal suit, whether or not it conducts the defense personally. As the court said in Trego v. Rubovits, 178 Ill App 127, at pages 134-135,

“We think also that the court applied the correct rule of measuring the damages recoverable. ‘Where a person is responsible over to another, either by operation of law or by express contract, for whatever may be justly recovered in a suit against such other, and he is duly notified of the pendency of the suit and requested to take upon himself the defense of it, and is given an opportunity to do so, the judgment therein, if obtained without fraud or collusion, will be conclusive in a subsequent suit against him for indemnity, whether he appeared in the former suit or not.’ 24 Am & Eng Ency of Law (2nd Ed) 740; and also Brennan v. Bunn, 124 Ill 175. . . .
“The appellee was entitled to recover, if at all, for his legal attorneys’ fees and costs expended in the defense of the suit against him. Westfield v. Mayo, 122 Mass 100; Mayor of Troy v. Troy & L. R. R. Co., 49 NY 657.”

The second rather important distinction exists in the reason given as to why insurers wishing to assert non-liability under policies issued must do so without delay. In Krutsinger v. Illinois Cas. Co., 10 Ill2d 518, 139 NE2d 767, the court said at page 526:

“The reason is that1 [t] he claim might be of such a character as that the amount of damages recovered in a lawsuit by the injured party would exceed the indemnity and subject the insured to considerable loss and damage, and therefore the insured should have a right to know with reasonable promptness the attitude of the indemnity company, so that he might be in a position to take such action as would not only protect the indemnity company, but save himself from loss and damages.’ ”

This passage is instructive because it points out that the courts are concerned with those situations where an insured has limited coverage and may therefore be harmed by a company’s false start. Again, this condition is absent in the instant case. The agreement was that Dealers indemnify Norfolk “from any and all loss, damage, liability, cost or expense. . . .” Although the next clause indicates that Dealers had taken out insurance to cover its risk, the amount of coverage simply manifested its belief that such would be adequate protection. If, however, Norfolk’s liability exceeded the limits of the insurance coverage Dealers had taken out, the difference would be Dealers’ loss, for it had agreed to cover “all” loss. Since there was no ceiling on the amount of protection afforded Norfolk, the Krutsinger concern, as set out in the above quotation, is inapplicable to this case.

In Apex Mut. Ins. Co. v. Christner, 99 Ill App2d 153, 240 NE2d 742, this court recognized the insurer’s perils in deciding whether or not to defend a particular action. At pages 163-164, the majority opinion explains:

“Where the injury action complaint states different causes of action or theories of recovery, only some of which are covered by the policy, the insurer is bound to defend all those which are within the policy. . . . The penalty for failure to fulfill this duty is that any judgment entered is conclusive against it, absent fraud.”

When the indemnitor knows of the peril but still chooses not to defend, then all that can be said is that the indemnitor, wisely or not, has selected its course. Whether or not it defends it has the same liability, but Norfolk is not entitled to demand that Dealers assume the defense. In a given case Dealers may feel it is in its best interest to assume the defense, but its agreement with Norfolk does not require that it do so; the question thus becomes: Has Dealers done something which should call for an alteration from the general rule and bind it to maintain Norfolk’s defense?

A search of the record discloses nothing which justifies the conclusion that Norfolk was prejudiced by Dealers’ assumption and subsequent withdrawal of Norfolk’s defense. Virtually nothing of substance had transpired during the time the Hinshaw firm had control of the defense; the “confidential” file was valueless, notwithstanding Norfolk’s “negative” information argument. Dealers would have eventually learned the truth about the accident, whether from its own investigation or by discovery procedures against Norfolk, if Norfolk had maintained its third-party complaint against Dealers. For Norfolk to now argue that its useless file was valuable is to argue, in effect that it had obtained a windfall when Dealers had agreed to assume the defense; and that although Dealers learned the truth by seeing the empty file, Dealers should not now be allowed to profit from such knowledge. In other words, the value of the file was that it informed Dealers that Norfolk did not have a good case against Dealers, a fact which would inevitably have been disclosed.

Norfolk argues that the indemnitor contracted to assume the defense and therefore should not be allowed to withdraw at will. There can be no dispute that if one contracts to defend he should be held to the contract. Apex, supra, and many other cases so hold. The only problem with the argument as applied to this case is that there never was a contract to defend. We have already pointed out that in most insurance cases there does exist such a provision; however, in the present case there was no express provision whereby the indemnitor agreed to defend Norfolk from personal injury suits.

Norfolk argues that in the present case there was an oral contract evidenced by memoranda. This argument is weak at many points, not the least of which is that we fail to find any consideration for the purported agreement to defend. The argument that the consideration existed in Norfolk’s withdrawal of its third-party complaint because of Dealers’ assumption of the defense is not logical. Under its contract with Norfolk, Dealers agreed to indemnify Norfolk if Norfolk was adjudged liable and it was determined that Norfolk was not solely negligent. Thus, there was a preexisting obligation on the part of Dealers to pay for that which Norfolk attempted to obtain by way of its third-party action. Furthermore, for the reasons already discussed, we fail to see how it can seriously be urged that the file given the Hinshaw firm had any value since its contents related to a prior accident.

The summary judgment ordered Dealers and its insurer to assume Norfolk’s defense “and to indemnify said Railroad for any and all sums that said Railroad has paid or hereafter may be required to pay as a result of this litigation. . . .” As previously stated, we have concluded that Dealers and its insurer were entitled to withdraw from the defense since there was no showing that Norfolk would be thereby prejudiced. We also hold that error was committed when the summary judgment was entered ordering Dealers and its insurer to indemnify. It remains to be determined whether Dealers will be required to indemnify. There still has been no trial on Opheim’s complaint and no determination as to whether the accident was due to Norfolk’s sole negligence. If it was, under the agreement between Norfolk and Dealers, Dealers would not be bound to indemnify, and it thus appears premature to assess the duty of indemnification at this point.

Accordingly, we are reversing the judgment appealed from and remanding the cause with instructions to enter an order granting Dealers Transit, Inc., and Truck Insurance Exchange the right to withdraw from the defense of Norfolk & Western Railroad Company, and ordering that the determination of the issue of the duty to indemnify be postponed until judgment has been rendered in the Opheim suit against Norfolk. The dismissal of the third-party defendants named in the order appealed from may stand.

Reversed and remanded with instructions.

LYONS, J., concurs.

BURKE, J.,

dissents:

At the time Dealers agreed to defend the Opheim suit it was not discharging a prior contractual obligation; it was assuming an entirely new obligation, in exchange for which it was spared the risks of being made a third-party defendant in the suit. The fact that Opheim’s complaint did not name Dealers as a defendant does not mean that Dealers would not ultimately have to indemnify the railroad, and the fact that the hold-harmless clause excepted liability arising out of the “sole negligence” of the railroad, does not mean that Dealers might not ultimately have to indemnify the railroad if Opheim took a judgment against it. Forbearance to sue may constitute the consideration necessary to support an agreement, even if the claim upon which suit is threatened is doubtful. Dealers received the benefit of having full control of the litigation and the right to Norfolk’s full cooperation in the defense. Dealers and Truck Insurance Exchange do not deny that the railroad performed its part of the agreement. Dealers and Truck Insurance Exchange will not be permitted to back away from performing their part of the agreement.

The record does not support appellants’ alternative argument that they contracted to assume the railroad’s defense because they misunderstood the law. Opheim was an employee of Dealers and by virtue of section 5(a) of the Workmen’s Compensation Act (Ill Rev Stats 1969, c 48, § 138.5) he was barred from asserting any common-law action against his employer to recover for his injuries. It is reasonable to assume that Dealers, as the employer, Truck Insurance Exchange, et al., as its liability carrier and Joseph Reynolds as Truck Insurance Exchange’s branch claim manager, were aware of that fact. There is nothing in the record suggesting that railroad’s counsel misunderstood the complaint or that he misrepresented what it contained. He sent copies of the complaint to Dealers which made its independent decision more than a month later. The record shows that counsel for the railroad was aware of the provision of the Workmen’s Compensation Act preventing Opheim from naming his employer in the complaint, and equally aware that Norfolk could file a third-party complaint against Dealers.

Dealers, through its agent, Truck Insurance Exchange, for a sufficient consideration for its promise, entered into a valid contract to defend the railroad. Pursuant to the agreement, the railroad dismissed its third-party complaint, surrendered control of the defense to Dealers’ counsel and gave its full cooperation. There is no evidence of misrepresentation or mistake. Whether the railroad was prejudiced by Dealers’ subsequent breach of the contract is irrelevant. Dealers has refused to perform and that alone constitutes a breach. For these reasons the judgment should be affirmed.


author: MR. JUSTICE ENGLISH

text:
    Gussie Cohn and Blanche Sosna, Plaintiffs-Appellants, v. Receivables Finance Co., and Julian J. Luster, Defendants-Appellees.
    Gen. No. 53,111.
    First District, Fourth Division.
    April 8, 1970.
    Rehearing denied May 27, 1970.

      Neal Mermall, of Chicago, for appellants.
    Julian J. Luster, pro se, of Chicago, appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Plaintiffs’ suit on a note was terminated by judgment in favor of defendant on his motion for summary judgment. The court found that the loan contract was usurious, and that illegal interest payments, which had exceeded the amount of principal, should be applied thereto. Plaintiffs’ motions for rehearing and for leave to file an amended complaint were denied, and plaintiffs appeal.

The contract in question was entered into on February 1, 1942. At that time, defendant had been a personal friend of Gussie Cohn (hereinafter plaintiff), for many years, dating back to the time of her childhood. He also had represented her as her attorney, she having been in his office “very often.” He asked her to lend him $5,000, telling her that if she would make the loan, he would pay interest at the rate of 10% per annum. Upon her agreement to those terms, defendant prepared the note for $5,000 due February 1, 1943, bearing 10% interest, and payable to “Gussie Cohn and Blanche Sosna jointly or the survivor of them.” The note was signed by defendant Luster on behalf of Receivables Finance Co., a sole proprietorship owned and operated by him, and the note was also endorsed with his individual guaranty.

Defendant concedes that he was plaintiff’s attorney at the time and that he did not discuss the issue of usury with her in connection with the loan. He testified that all that was said was, “Gussie, do you want to make me a loan, I need $5,000 and I will give you ten percent interest.” Payments of interest (at 10%) were made for approximately 25 years. Defendant further testified that around 1952 he had told plaintiff that “this interest is too much,” but she replied that she needed the money “to live on, and that was all.” Nothing else was said in this regard until 1967 when plaintiff called defendant and “said she would like to be paid twelve hundred dollars of the note. That was when I decided to rely upon my defense of usury.” Defendant’s monthly interest payments of $41.66 from 1942 to 1967 had totalled $12,-539.60. No repayment of principal, designated as such, was ever made or tendered.

Although the court’s summary judgment order found the contract usurious, before consideration on appeal may be given to the usury issue, it must be determined, as plaintiff urges, whether usury is available as a defense in this case. This inquiry takes on particular importance in light of the peculiar factual situation presented. Defendant borrower was plaintiff’s long-time personal friend, and, most significantly, her lawyer. And, contrary to the ordinary usury situation, it was he—the borrower—who initiated the loan transaction, set the terms of the agreement, and drafted the note.

At 16 ALR3d 510, 513, we find it stated as the majority rule that a borrower who initiates a usurious transaction is estopped from setting up the defense of usury, as he will not be permitted to take advantage of his own wrong. In the instant case, the critical additional factor of defendant’s clear fiduciary responsibility to plaintiff as her attorney presents an even more persuasive reason for the working of such an estoppel.

In Builder’s Bond & Mortgage Co. v. Bickley, 262 Ill App 603, 609, the court recognized this principle when, faced with a fiduciary relationship between borrower and lender, it stated:

... We are of the opinion that the evidence in the instant case fails to show an unlawful and corrupt intent to charge the defendants with an usurious interest. Furthermore, the defendants are in no position to raise that question, because of the fiduciary relationship existing between Bickley and the complainant. It would be unconscionable for Bickley as the trusted agent, president and director of the complainant to draw it into a usurious transaction and then insist upon the imposition of a penalty.

We are in accord with this reasoning as applied to the facts of the case at bar, where an even higher fiduciary relationship existed. At a time when defendant was plaintiff’s lawyer, he initiated the loan, drew the contract, and thus established the terms he now seeks to avoid. To permit defendant, under these circumstances, to derive any latent advantage from the agreement he prepared, would result in extreme injustice to his unsophisticated and unsuspecting lender who was entitled to rely on the good faith of her lawyer, and who was not advised of the built-in defense against interest which had been embodied in the note.

The obvious general purpose of the usury statutes, as they have been interpreted in many jurisdictions, is to protect the necessitous borrower from the unscrupulous lender. E. g., Ill Rev Stats 1941, c 74, § 1 et seq. This rationale, however, is not applicable in the context of the case now before us, where the borrower-fiduciary, by his own affirmative act, injected usury into the transaction and now seeks to take advantage of the penalty afforded to borrowers by statute. We hold that, because of his unconscionable acts in breach of the highest fiduciary obligation, defendant is estopped from affirmatively pleading the defense of usury.

Defendant places his primary reliance upon the Bickley case, supra, from which we have quoted in regard to the principle of a fiduciary’s estoppel. From a close reading of that opinion, certain features stand out: (1) The court did not consider the transaction to have been usurious (pages 609 and 611); (2) the note in question called for 6% interest on the unpaid balance, the legal maximum then (as at the time of making the instant note) being 7 % ; (3) the maker of the note sought to have the Appellate Court enforce the penalty of the usury statute by not requiring him to pay any interest; (4) this, the court declined to do, deciding that interest should be paid according to the terms of the note, except that the principal amount was assumed to be $17,000—the amount actually advanced to the borrower—rather than $20,000, the face amount of the note (the difference of $3,000 had been designated by the parties as a comipission, and this was the basis of the defendant’s allegation of usury); (5) thus, the court did not consider the $3,000 as interest, nor did it consider it as principal (because the defendant had never received it); (6) therefore, the defendant was not required to pay the $3,000 in any guise, and the contract (the $20,000 note) was, in effect, reformed by the court to that extent; (7) quotations from opinions in other jurisdictions, holding that under a usurious contract prepared by a borrower he will not be required to pay the usurious rate but will be made to pay the legal rate, are dicta.

In our case we have no complication involving a “commission.” The note is clearly usurious, and, as we have indicated, we believe that because of the fiduciary circumstances, defendant should not be permitted to raise the defense. The question remaining, however, is whether, granting the application of this principle, a court can properly decree payment of an interest rate which exceeds the maximum prescribed by statute. The cases cited in the dictum of the Bickley opinion, supra, at page 609, hold that it cannot, and that a court may order payment of no more than the maximum legal rate. Short v. Skipwith, 1 Brockenbrough’s Reports 103; and Gund v. Ballard, 73 Neb 547. As we interpret the Illinois interest statute, we do not consider ourselves bound to so narrow a result.

When the note in question was made, section 4 established as lawful an interest rate of 7%. Section 5 provided that a higher rate should not be received, with exceptions not here pertinent. Section 6 declared, as a penalty, that if any person should contract to receive a higher rate of interest, only the principal, without any interest, would be recoverable. Section 7 provided (and still provides) that the defense of usury must be specially pleaded. Ill Rev Stats 1941, c 74, §§ 4, 5, 6 and 7.

When all these sections of the statute are read as a whole, it is section 7 which we believe has a critical bearing upon the question now presented. It states:

§ 7. The defense of usury shall not be allowed in any suit, unless the person relying upon such defense shall set up the same by plea, or file in the cause a notice in writing, stating that he intends to defend against the contract sued upon or set off, on the ground that the contract is usurious.

This language indicates clearly that if a defendant who is sued on a usurious note fails or declines to claim the defense, the court then has the obligation to treat the interest as collectible in accordance with its terms, even though it may be at a usurious rate.

In Brauer v. Laughlin, 211 Ill App 534, 544-545, this court held, in regard to a contract which called for a usurious rate of interest, that, since the defense of usury had not been pleaded, the defendant should be required to comply with the terms of his agreement. See also Harris v. Bernfeld, 250 Ill App 446, 448-449.

Our Supreme Court also dealt with this question in Hibernian Banking Ass’n v. Davis, 295 Ill 537, 129 NE 540. There the court, in considering a defense of usury raised by a junior creditor with respect to a senior obligation, said at page 545:

It is a sufficient answer to this contention to say that neither [the senior creditor] nor her trustee in bankruptcy, . . . , in answering the original bill or amended or substitute bill, makes any claim of usury. The defense of usury is a right personal to the debtor and must be by him pleaded. If he is injured by usury it is for him to say whether such is so. He may choose to perform the contract and waive the defense of úsury. No one else has the right to raise that defense. (Citing cases.)

Having determined that defendant in the instant case is estopped from raising the defense of usury (even though he attempted to do so), we next conclude that there is nothing in the statute which dictates that we cannot order payment of a usurious rate. We do not agree with defendant’s contention, accepted by the trial court, that defendant must be given credit against principal for the payments which he made through the years in excess of the maximum legal rate of interest. We hold that, under the circumstances of this case, defendant is required to perform the contract as he drew it.

In view of this conclusion, it is not necessary to consider other points raised by plaintiffs.

Accordingly, the judgment of the Circuit Court is reversed and remanded for further proceedings not inconsistent with this opinion.

Reversed and remanded.

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