text:
    T. R. Booth and Co., Inc., a Corporation, Appellant-Respondent-Counterclaimant, v. Alfred J. Loy, d/b/a Arrow Moving & Storage Co., Appellee-Petitioner-Counterdefendant.
    Gen. No. 70-8.
    Second District.
    September 1, 1970.

      John F. Grady, of Waukegan, for appellant.
    Snyder, Clarke, Dalziel, Holmquist & Johnson, of Waukegan, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This case has been before us on a previous occasion and the facts are fully set forth in our opinion cited as T. R. Booth & Co., Inc. v. Loy, 100 Ill App2d 333, 241 NE2d 315 (1968).

In brief, the plaintiff, T. R. Booth and Co., Inc., rented certain warehouse space from the defendant, Alfred J. Loy, d/b/a Arrow Moving & Storage Co., for the storage of plaintiff’s merchandise. The defendant did not have sole possession of the goods and, in fact, did not know what goods were stored. When some of the merchandise was found to be missing (we quote from page 336 of our earlier opinion): “. . . Thereupon, the plaintiff brought a one-count complaint alleging a bailment relationship between the parties. One of the paragraphs of the complaint stated that ‘the merchandise was either lost or destroyed as a result of the defendant’s negligence in storing the same, or, in the alternative, the defendant has converted the goods to his own use or the use of another.’ ”

In the original case, the trial court found that a bailment relationship existed between the parties and awarded judgment for plaintiff. On appeal we reversed, holding that no bailment relationship existed and that the true relationship of the parties was that of lessor-lessee. We said, at page 339, “. . . since the alleged negligence of the defendant is bottomed upon a presumption arising out of a bailment relationship there is no need to consider the negligence allegation.”

The defendant filed no supersedeas bond pending his appeal from the first decision and, as a result, the plaintiff proceeded with garnishment and obtained a satisfaction of its judgment. Subsequent to the reversal, however, the defendant filed a petition in the trial court seeking judgment for the amount he had paid the plaintiff. The plaintiff filed an answer to the petition and a counterclaim against the defendant for the same amount sought by the defendant, basing the claim on the same facts as found in the original suit but now alleging that the cause of damage was the defendant’s negligence. Plaintiff sought a trial on the question of negligence alleged in its counterclaim; however, the trial court, on the second proceeding, entered judgment against the plaintiff in favor of the defendant and dismissed the plaintiff’s counterclaim.

The plaintiff brings this case to us arguing that the question of negligence has never been litigated between these parties, basing its case upon the last-quoted language of our earlier opinion (Booth v. Loy, supra, at 339), and interpreting such sentence to state that the allegation of negligence was never considered by this Court. That is an erroneous interpretation.

In actuality, the allegation of negligence was never presented to us as a cause of action. The plaintiff filed a one-count complaint stating a cause of action in bailment and concluded that the defendant was negligent. The complaint itself did not allege any of the necessary elements for a cause of action based upon negligence such as duty, breach of duty, proximate cause, damage, or freedom from contributory negligence. The issue of negligence would have come into the earlier case only if plaintiff had proved a bailment and a loss; under that condition negligence would have been presumed, at least for the purpose of going forward with the evidence. However, plaintiff proved no bailment, therefore there was no presumption of negligence and no reason to consider that issue.

In the case before us, plaintiff, having failed on its first theory, now attempts to retry the case on another theory. The parties are the same, the transaction is the same and the facts are identical. It is the good policy of the law to assure each party with a true grievance their day in court but the law does not contemplate that the days in court be multiple and interminable, nor that a party having failed with one theory can start anew on another theory.

As the Court said in Menconi v. Davison, 80 Ill App2d 1, 6, 224 NE2d 139 (1967):

“A prior adjudication between the same parties is conclusive upon them, not only as to matters actually determined but as to every other thing within the knowledge of the parties which might have been set up as a ground for relief or defense. ... A party cannot litigate and try a cause by parts in different proceedings; he must bring his whole case before the court and have it disposed of in one proceeding.”

In Meyer v. Povilat, 20 Ill App2d 279, 282, 156 NE2d 4 (1959), the Court said:

. . when litigation is presented to a reviewing-court, all questions which were open to consideration and could have been presented relating to the same subject matter are deemed disposed of whether or not they were actually presented.”

Finally, in Lundstrom v. Winnebago Newspapers, Inc., 42 Ill App2d 306, 312, 192 NE2d 307 (1963) we said:

“. . . When litigation is presented to an appellate tribunal and questions of law are decided, the rule of law is that all such questions relating to the same subject matter which were open to consideration and could have been presented are res judicata, whether they were presented or not.”

The plaintiff has supplied us with no Illinois authorities contrary to the foregoing rules.

The plaintiff cites authorities from other states which hold that where an appellate tribunal did not make a final determination, there can be a trial of those issues which were not decided. The fact is, however, that our decision in the first case was a final determination on these facts between these parties and, therefore, the authorities cited by the plaintiff do not apply. See, Government Employees Ins. Co. v. Dennis, 90 Ill App2d 356, 361, 232 NE2d 750 (1967).

We conclude that the trial court was correct, both in entering judgment for the defendant in the full amount of his claim and in dismissing the plaintiff’s counterclaim.

Judgment affirmed.

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

       This quote is taken from the last paragraph of plaintiff’s one-count complaint in the earlier proceeding and is the only place in which plaintiff’s pleadings ever inferred negligence.


source: Caselaw Access Project

author: JUSTICE THOMAS J. MORAN

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Diesel, Defendant-Appellant.
    Gen. No. 70-68.
    Second District.
    September 1, 1970.

      Franz, Franz, Wardell and Lindberg, of Crystal Lake, for appellant.
    William J. Cowlin, State’s Attorney of McHenry County, of Woodstock, and Thomas F. Baker, Assistant State’s Attorney, for appellee.
   JUSTICE THOMAS J. MORAN

delivered the opinion of the court.

This matter is transferred to this court upon the order of the Supreme Court.

Defendant, Fred W. Diesel, after a bench trial was convicted of gambling and was fined $25 and costs.

The charge grew out of an incident which occurred on May 6, 1969, when Police Officers May and Molitor, of the Crystal Lake Police Department, entered Christopher’s Lounge in Crystal Lake, Illinois. According to the testimony of the officers, they discovered six men sitting at a round, wooden table; each was observed to be holding cards in his hands. United States currency, in bills and change, were in front of each of the men and some currency was toward the center of the table. As the officers approached, the men placed the currency in their pockets. A deck of playing cards was confiscated by the officers.

The report of proceedings reflects that on June 16, 1969, the following colloquy took place between the defendant and the court:

THE COURT:
“Mr. Diesel?”
A. “Yes, sir.”
THE COURT:
“You are charged with Gambling?”
A. “Not guilty.”
THE COURT:
“I will place it on the Jury Call.”
FRED DIESEL:
“Can I waive the jury call?”
THE COURT:
“Yes, Jury is waived.”
FRED DIESEL:
“I am going to be out of town the month of July.”
THE COURT:
“I am going to set it for August the 18th, 1969, at one-thirty (1:30 p. m.). Be here at that time.”
FRED DIESEL:
“All right.”

A waiver of trial by jury, signed by the defendant, was filed the same day.

During the trial on August 18, 1969, the defendant was not represented by counsel; he did not testify. The two police officers were the sole witnesses; both were cross-examined. The magistrate found the defendant guilty of gambling. Under section 28-1 of the Criminal Code (Ill Rev Stats 1967, c 38, § 28-1), a conviction of gambling authorizes a maximum sentence of one year in a penal institution (other than a penitentiary) and a $500 fine.

On appeal, defense counsel contends that defendant was not advised of his right to counsel, that the record fails to show that defendant understood the nature of a jury trial or that he understandingly waived his right to the same, that the complaint was fatally defective and that the defendant was not proved guilty beyond a reasonable doubt.

A review of the record reveals that the court did not advise the defendant of his right to be represented by counsel, nor is there an indication that the defendant ever requested counsel. However, the duty of the court to advise a defendant charged with a misdemeanor not punishable by a penitentiary sentence, has been considered and passed upon by the Illinois Supreme Court in the case of The People v. Dupree, 42 Ill2d 249, 246 NE2d 281 (1969). There, the Court held that a defendant charged with a misdemeanor not punishable by a penitentiary sentence, suffered no violation of his statutory or constitutional rights by the failure of the court to advise him of his right to counsel. In that case, as in the instant case, no request was made for representation by counsel. The ruling of the Court in that case is controlling here.

Defendant complains that he was deprived of his constitutional right to trial by jury because the record fails to show that he understood the nature of a jury trial or understandingly waived his right to a jury trial as required by section 103-6 of the Criminal Code (Ill Rev Stats 1967, c 38, § 103-6), and cites as authority, People v. Turner, 80 Ill App2d 146, 225 NE2d 65 (1967) and People v. Bell, 104 Ill App2d 479, 244 NE2d 321 (1969). The factual situations in both of those cases make them inapposite to the facts found in the instant case. In Bell, the colloquy between the court, the defense attorney, and the defendant, when read from the record, was equivocal and led the court to the conclusion that the defendant’s waiver was not understandably made. In the Turner case, the record failed to indicate that the defendant was, at any time, instructed as to his right to a jury trial. Additionally, it was shown in that case that the defendant was illiterate, which would seem to have brought the court to the conclusion that the waiver had not been understandingly executed.

This court agrees that it is the duty of the trial judge to see that a jury waiver is understandably made. Whether such a waiver has been understandingly made rests on the peculiar facts of each case, and cannot be governed by any precise formula. The People v. Wesley, 30 Ill2d 131, 133, 195 NE2d 708 (1964). This is further substantiated by the fact that the same court which decided the Turner and Bell cases, recently decided the case of People v. Greenwood, 115 Ill App2d 167, 173-175, 253 NE2d 72 (1969). There the court held that the defendant indicated his understanding of the nature of a jury trial when he clearly stated his desire to waive a jury trial and signed the jury waiver. There was no reason for the trial judge to make a further explanation.

We are convinced by the circumstances and the facts of this case that the written waiver of the jury trial was understandingly. executed by the defendant, and his verbal act of waiving the jury was made after the court had indicated to him that the case would be handled and decided by a jury. Accordingly, we find this assignment of error to be without merit.

Defendant next claims that the criminal complaint charging him was defective and violated section 111-3 (a) (5) of the Criminal Code (Ill Rev Stats 1967, c 38, § 111-3 (a) (5)) in that the complaint did not name the defendant, Fred W. Diesel.

Chapter 38, section 111-3(a) (5) provides, in part:

“(a) A charge shall be in writing and allege the commission of an offense by: ... (5) Stating the name of the accused, if known, and if not known, designate the accused by any name or description by which he can be identified with reasonable certainty.”

The complaint, a single sheet, states in part:

“THE PEOPLE OF THE STATE OF ILLINOIS
vs.
Fred W. Diesel
100 W. Crystal Lake Ave.
Crystal Lake, 111.
Defendant
CRIMINAL COMPLAINT
Complainant, Sgt. James Molitor, on oath charges: That on May 6, 1969, in McHenry County, - committed the offense of Gambling in that in that he played a game of chance and skill, at 109 N. Main St. Crystal Lake, 111, commonly known as Christophers Lounge, namely, a card game for money or other thing of value, in Violation of Section 28-1, Chapter 38, Illinois Revised Statutes.”

While defendant’s name was not entered in the blank between the words “county” and “committed,” his full name and address are set forth in the caption. This court has considered the caption as part of the body of the complaint when there is no conflict between the two. People v. McGrath, 85 Ill App2d 388, 229 NE2d 14 (1967). The body of the complaint in the instant case alleges “. . . that he played a game of chance . . .” and a common-sense reading of the complaint leaves no honest doubt that the defendant charged is Fred W. Diesel.

This is not a case in which only one of the three persons charged in the body of the pleadings is mentioned in the caption (The People v. Soukup, 41 Ill2d 94, 96, 242 NE2d 158 (1968)), nor is it a complaint which fails to allege the names of operators of a gaming house (People v. Beebe, 30 Ill App2d 435, 436-437, 174 NE2d 880 (1961)), which are relied upon by the defendant. We appreciate that complaints charging multiple defendants, naming victims, charging several offenses or involving conflicts between the caption and the body of the charge could lead to other results. However, such questions are not presented by the facts in this case.

Since the purpose of the complaint is to apprise the defendant of the elements of the crime with sufficient particularity as to enable him to prepare his defense and plead a judgment of conviction or acquittal in bar of a second prosecution for the same offense, (The People v. Soukup, supra), we are of the opinion that the test is met and satisfied in this case.

The defendant complains that the State failed to prove him guilty beyond a reasonable doubt. A reviewing court will not disturb a guilty finding in a bench trial of a criminal matter unless the proof is so unsatisfactory or implausible that it justifies a reasonable doubt as to the defendant’s guilt. The People v. Woods, 26 Ill2d 582, 585, 187 NE2d 692 (1963); The People v. Boney, 28 Ill2d 505, 510, 192 NE2d 920 (1963). In the case at bar, the testimony of the police officers ascertained that they came upon the defendant who, with others, was seated at a table in Christopher’s Lounge, that the defendant and the other were holding cards in their hands, currency was in front of each of the parties and an amount of currency was near the center of the table. Both direct and circumstantial evidence is found in the record to substantiate the trial court’s judgment.

For the reasons set forth herein, the judgment of the trial court is affirmed.

Judgment affirmed.

DAVIS, P. J. and ABEAHAMSON, J., concur.


author: GOLDENHERSH, J.

text:
    The Department of Public Works and Buildings of the State of Illinois for and in Behalf of the People of the State of Illinois, Petitioner-Appellant, v. Arthur Brockmeier and Dorothy Brockmeier, His Wife, Defendants-Appellees.
    Gen. No. 69-40.
    Fifth District.
    September 2, 1970.

      William J. Scott, Attorney General of State of Illinois, of Springfield, and Ronald C. Mottaz, Special Assistant Attorney General, of Alton, for appellant.
    Maurice Dailey, of Granite City, for appellees.
   GOLDENHERSH, J.

Petitioner, The Department of Public Works and Buildings, appeals from the judgment of the Circuit Court of Madison County entered upon a jury verdict in an action to condemn land for use in the construction of a four-lane access road to the Campus of Southern Illinois University.

Defendants, Arthur Brockmeier and Dorothy Brockmeier, are husband and wife, and are the owners of a parcel of land comprising approximately 150 acres. Prior to the taking, the parcel was divided by Bluff Road, approximately 100 acres lying east of the road and the remainder to the west. Defendants’ residence and outbuildings were located east of Bluff Road. The parcel taken by petitioner comprises 8.53 acres of defendants’ land, in addition to 0.6 of an acre included in Bluff Road.

Prior to the taking, Bluff Road was a through road to which defendants had access in front of their residence; since the construction of the new road Bluff Road dead-ends to the north of defendants’ home. In order to reach the land west of Bluff Road, defendants now are required to travel south on Bluff Road to a crossover to a frontage road.

Defendants operate a sod farm, and prior to the taking, all of the land west of Bluff Road, and a part of the land east of the road, were devoted to the production of sod. The testimony shows that defendants commenced the growing of sod in 1956, and approximately 5 years was required to develop roots for sod production. Once established, the roots will last for 100 years. The production of sod requires large amounts of water, and there is a large well on defendants’ land which produces water at the rate of 1,000,000 gallons each 12 hours. Laterals extend from this well to all parts of the property.

The sod is cut by special machinery and between % inch and % inch of dirt is left on the sod. After the sod is cut, the land is refertilized and reproduces sod which can be cut the following year.

The testimony shows that since the construction of the new road defendant, Arthur Brockmeier, has difficulty moving his machinery to the land west of Bluff Road. Traffic is heavy on the access road and he encounters difficulty and delays. Drainage from the new road has damaged a 5-acre tract on the west side of the defendants’ land so it can no longer be used for growing sod. Defendants also sold top soil from a portion of the land lying east of Bluff Road and it is more difficult to move trucks in and out of the area where the soil is removed for sale.

Three witnesses called by petitioner testified that the highest and best use of defendants’ land was for agricultural purposes; their opinions of the value of the entire parcel ranged from $144,800 to $170,000, and as to the value of the land taken, from $6,800 to $7,950. Two of these witnesses testified their opinions were based on sales of comparable lands, from one of which top soil was being removed for sale, but none involved sod growing operations. None of the witnesses thought there was any damage to the remainder, and one expressed the opinion the value of the remainder was enhanced.

Over petitioner’s continuing objection, defendants’ appraisal witness, Bloodworth, testified he was unable to find any comparable property in the area, and because he found no comparables, he had used the income approach in determining fair cash market value. His opinion as to the highest and best use of the property was as a sod farm, and for the sale of top soil and dirt. His opinion as to the fair cash market value of the entire farm was $892,000, and the value of the 8.58 acres taken was $69,700. He further testified there would be damage to the remainder of the property to the extent of $21,500. He based his damage to the land not taken upon the change in drainage and the difficulty in access. In cross-examination, he testified that in arriving at his valuation based on the income approach, he used the average income that the defendants received from sales of sod for the two years, 1965 and 1966. He further considered the expenses in the operation, the general expenses of the farm, the depreciation of the machinery, and considered the labor of the defendants. He then capitalized the final figure at 10 %.

Over petitioner’s continuing objection, defendants’ appraisal witness, Coultas, testified that in addition to being an appraiser he was the owner of a sod farm, the sod raised on the Brockmeier property was the finest in the country, and the nearest comparable sod farm was located in New Jersey. He testified the highest and best use of the property was as a sod farm. In his opinion, the value of the entire property was $1,026,000» and the value of the land taken was $78,440. He further testified there was damage to the remainder of the land to the extent of $45,000. He based his damage to the remainder upon the change in access, and damage to the sod field because of drainage. In using the income approach, he used the income over the next ten years in the future. In using the future income approach, he used the gross income of the farm of approximately $1,526,000, allocated one-third to expenses, and the balance was his appraisal. He stated the important thing in the defendants’ operation was the availability of large quantities of water.

The jury returned a verdict awarding defendants $30,-600 for the property taken, and $8,700 for the damages to the remainder.

As its first ground for reversal, petitioner contends the trial court erred in permitting defendants’ witnesses to state opinions of value of the land taken, and damage to the remainder, which were based upon the income from the land and not upon fair cash market value.

We have examined the many authorities cited by petitioner and defendants and are of the opinion the trial court did not err in admitting the testimony. It is true the testimony adduced by petitioner is that the highest and best use of the land was agricultural, but this does not preclude proof that the property had a special value by reason of its capability to produce high quality sod for the next 90 to 95 years. City of Chicago v. Harrison-Halsted Bldg. Co., 11 Ill2d 431, 143 NE2d 40. The evidence shows the land possessed this special capability at the time of the taking, and it does not depend upon any value or effort peculiar to the owner. With respect to the testimony of Bloodworth, he had expressed his opinion of the value of the land without reference to the specific profits derived by defendants from their operations, and the testimony elicited upon cross-examination went only to the credibility and weight of his testimony. Sanitary Dist. of Chicago v. Loughran, 160 Ill 362, 367, 43 NE 359.

The jury viewed the property, the verdict is within the range of the evidence, and the verdict should not be disturbed unless clearly shown to have resulted from, passion, prejudice, or palpable mistake, The City of Chicago v. Giedraitis, 14 Ill2d 45,150 NE2d 577.

Petitioner contends the court erred in giving, over its objection, defendants’ Instruction No. 1, in the exact language of the instruction set forth in Illinois Light & Power Co. v. Bedard, 343 Ill 618, 627, 175 NE 851. The testimony'is conflicting as to the highest and best use of the property, and in view of the evidence of its “special value” for sod production, the instruction was properly given.

Petitioner argues that the court erred in giving, over its objection, defendants’ Instruction No. 2, which is similar in form to one considered by the Supreme Court in Forest Preserve Dist. of Cook County v. Krol, 12 Ill2d 139, 145 NE2d 599 (Instruction No. 13 at page 149). Petitioner contends the substance of the instruction is covered by its Instructions No. 8 (IPI 300.80) and No. 10 (IPI 300.45). Although the instruction is somewhat argumentative in form, upon considering the instructions as a whole, we are of the opinion that petitioner was not prejudiced by its being given.

Petitioner contends the court erred in refusing its Instruction No. 9 in the form of the first paragraph of IPI 300.49. The court sustained an objection to the statement of petitioner’s appraiser, Miller, that the road would “help the property” on the ground that it was speculative, and there is no other evidence of enhancement of the value of the remainder. There is, therefore, no evidentiary basis for giving the instruction and the court did not err in refusing it.

We find no reversible error, and the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

MORAN and EBERSPACHER, JJ., concur.


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Steve Keller (Otherwise Called Stephen Keller), Defendant-Appellant.
    Gen. No. 54,088.
    First District, Third Division.
    September 3, 1970.

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

delivered the opinion of the court.

Defendant was indicted for armed robbery, waived his right to a jury trial, was found guilty by the court and sentenced to the Illinois State Penitentiary for not less than two nor more than eight years. On appeal, the only point made in the Points and Authorities of his brief is that the State did not prove guilt beyond a reasonable doubt. He bases this principally on the contention that his flight from the police following the robbery in question should not be considered as evidence of guilt because at that time he was under arrest on two other charges. He also contends that certain hearsay evidence was improperly admitted. A summary of the evidence follows.

William Mukahirn testified that on July 14, 1968, he was the manager of a shoe store at 3216 Lincoln Avenue in the City of Chicago. At about 4:30 p. m. he was alone in the store when two white males came in. One, the defendant, was wearing a black shirt and black pants and light colored sunglasses. The other man was also dressed in black. He was heavyset and according to Mukahirn had “funny” lips. Defendant gave Mukahirn a dollar for a pair of socks which were in a “glass counter.” He then pulled a gun from his shirt and the other man went around the counter and took some money out of a drawer next to which Mukahirn was standing. Mukahirn testified that he got a better look at the defendant than he did at the other man. The two men were in the store two or three minutes and after they left, Mukahirn called the police and gave them a description of the men.

The next time Mukahirn saw defendant was on the afternoon of August 8, 1968, less than a month after the robbery. He was putting a new window in the store when he saw defendant on the back of an orange motorcycle which was stopped in front of the store for ten or fifteen seconds. He yelled to two employees in the store that that was the man who had robbed him. He again called the police to report that he had seen one of the robbers.

On August 10, 1968, Mukahirn saw the same orange motorcycle when it passed in front of the store. He had his helper go next door to call the police. Again, on the same day, he saw the motorcycle after the store had been closed. He followed it and saw it at 1740 Fletcher Street, which is in the neighborhood of the store. He went to the police station and got Detectives Nere and Muscolino, who went with him to the Fletcher Street address where the motorcycle was found. As the police were talking to three teen-age girls who answered the door, a car went past slowly. Mukahirn saw defendant in the car and called to the police that he was the man who had robbed him. The police got in their car and followed and stopped the car in which defendant was riding. In the car with him were two other males and one female. Mukahirn identified defendant and later went to the station to sign a complaint.

Detective Nere testified that Mukahirn came to the station on August 10, 1968, that he and Officer Muscolino went to 1740 Fletcher Street and Mukahirn followed in his car. Upon Mukahirn’s shouting to them, they caught up with a car which had passed by and stopped it. When Mukahirn came up a few minutes later, he identified one of the occupants of the car as one of the robbers. No weapon or money was found on defendant. He was handcuffed and placed in the rear of the squad car but managed to escape and ran down the street, through a gangway and down an alley, where he fell and was captured by Detective Nere.

Defendant testified that he had never pointed a gun at Mukahirn, that he had met him earlier when he bought some shoes in his store sometime in June 1968 and that he had fled because there were two warrants issued for his arrest on other charges having nothing to do with the instant case. He testified that he believed he had been down at the lake on the day of the robbery, but added that he was not sure. We proceed to consider defendant’s contention that since there were two other warrants outstanding, his flight should not be considered as evidence that he was guilty of robbing Mukahirn.

While evidence of flight does not raise a legal presumption of guilt, it may be considered in connection with all the other evidence as tending to prove guilt. People v. Lobb, 17 Ill2d 287, 161 NE2d 325; People v. Weber, 401 Ill 584, 83 NE2d 297; People v. Smith 127 Ill App2d 199, 262 NE2d 165; II Wigmore, Evidence §276, at 111 (3d Ed 1940). The fact that defendant presented an explanation of his flight which is compatible with his innocence has a bearing on the weight to be given the evidence of flight, but does not render such evidence inadmissible.

Defendant cites a footnote in Wong Sun v. United States, 371 US 471, 843-84, n 10 (1963) for the proposition that evidence of flight is of questionable probative value. Wong Sun is not in point since the issue before that court was whether “flight justified an inference of guilt sufficient to generate probable cause” for an arrest. Cases cited in the footnote to the opinion in that case are not in conflict with our decision. In Alberty v. United States, 162 US 499 (1896) the court held it to be reversible error to instruct the jury that flight raised a “presumption of fact” of guilt. In the instant case the trial court considered the evidence of flight as having probative value on the issue of guilt and not as raising a presumption of guilt. In Allen v. United States, 164 US 492, 499 (1896), also cited in Wong Sun, the court held that “the law is entirely well settled that the flight of the accused is competent evidence against him as having a tendency to establish his guilt.” The trial court properly allowed evidence of defendant’s flight.

Defendant contends that the identification was unsatisfactory and unconvincing. It is well settled that one witness positive in his identification is sufficient to support a conviction. People v. Mikka, 7 Ill2d 454, 131 NE2d 79; People v. Gipson, 29 Ill2d 336, 194 NE2d 318. Mukahirn’s identification of defendant was sufficiently positive. At the time of the robbery he had several minutes to observe defendant. Since the defendant was the one holding the gun and facing Mukahirn across the counter, it is not unreasonable that Mukahirn would have had a better look at defendant than at the other man. When Mukahirn saw defendant on the rear of a motorcycle on August 10, he recognized him immediately and called the police. When defendant went to 1740 Fletcher Street in a car on the day of his arrest, Mukahirn again immediately recognized him. Mukahirn had ample opportunity to positively identify defendant. See, e. g., People v. Davis, 14 Ill2d 196, 151 NE2d 308; People v. McGill, 121 Ill App2d 423, 257 NE2d 517.

The failure of the State’s witness Mukahirn to remember on cross-examination that he had testified before the Grand Jury and the fact that the police report failed to state that defendant wore sunglasses, as Mukahirn testified, are minor discrepancies which do not seriously detract from his otherwise positive identification. People v. Howard, 121 Ill App2d 87, 257 NE2d 278.

Defendant also presents an alibi based solely on his testimony that he thought he had been down at the lake on the day of the robbery, but he added that he was not sure. Reviewing courts have recognized that the trial court who sees and hears the witness is better able to determine his credibility. People v. Williams, 12 Ill2d 80, 145 NE2d 29. In the instant case the court heard and observed the testimony of Mukahirn and concluded that it was “very persuasive and patently honest.” We find no basis in the record for disturbing the trial court’s determination on that point.

Defendant lastly argues that the testimony of Detective Nere that Mukahirn positively identified defendant is hearsay. The detective was asked:

Q. “And did Mr. Mukahirn make any statement to you at that time ?”
A. “Yes, he did.”
Q. “What, if anything, did he say?”
A. “He pointed his finger — ”
DEFENSE COUNSEL: “Objection again, Judge.” THE COURT: “He may answer. Go ahead.”
A. “He positively identified Steve Keller as the number one subject that held the gun on him and robbed him.”
THE COURT: “What did he say?”
A. “He said that is the man that robbed me on the 14th of July.”

The State argues that defendant’s general objection to that testimony was not sufficient. It has been held that an objection must be specific enough to inform the court and the opponent of the ground or reason for the objection. People v. Garner, 91 Ill App2d 7, 234 NE 2d 39; People v. Jennings, 298 Ill 286, 131 NE 619. Supreme Court Rule 615 (a) (Ill Rev Stats, c 110A, § 615 (a) (1969)) provides however that “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.” That rule was applied in People v. Wright, 65 Ill App2d 23, 212 NE2d 126, a case in which the same issue as that now before us was presented. We will consider whether the alleged hearsay statements of Detective Nere were admissible.

In People v. Lukoszus, 242 Ill 101, 89 NE 749, the identifying witness testified that the defendant was the one who struck the deceased. A policeman also testified that the witness gave him a description of defendant and that he took defendant to the witness to be identified. The court held that the hearsay rule was violated by admitting the policeman’s testimony. No authority was cited for the decision and the court did not give consideration to the fact that the identifying witness was in court and subject to cross-examination with respect to her identification.

Wigmore characterized decisions which held that such evidence was hearsay as a “telling illustration of the power of a technical rule of thumb to paralyze the judicial nerves of natural reasoning.” He pointed out that an earlier out-of-court identification often has greater probative value because it is generally made before the suggestions of others have intervened to create a “fancied recognition” in the mind of the witness. IV Wig-more, Evidence, § 1130 (3rd ed 1940).

In the recent case of People v. Carpenter, 28 Ill2d 116, 190 NE2d 738, the court in examining the basis for the hearsay rule, stated as follows (p 121):

“The fundamental purpose of the hearsay rule was and is to test the real value of testimony by exposing the source of the assertion to cross-examination by the party against whom it is offered. While the administration of an oath and the right of confrontation are also spoken of as necessary elements, the essential feature, without which testimonial offerings must be rejected, is the opportunity for cross-examination of the party whose assertions are offered to prove the truth of the act asserted.” (Citations omitted.)

Following the analysis of the hearsay rule set forth in Carpenter, we have recently held that if the person who made the out-of-court identification is present, testifies to his prior identification and is subject to cross-examination, the purpose of the hearsay rule is satisfied. People v. Hoffman, 124 Ill App2d 192, 260 NE2d 351; People v. Poole, 121 Ill App2d 233, 257 NE2d 583; People v. Burks, 105 Ill App2d 112, 245 NE2d 120. This is in accord with the present trend which is to accept such testimony as evidence of the truth of the matter therein asserted if the declarant is present and subject to cross-examination. Model Code of Evidence, Rule 503 (1952) . See Uniform Rules of Evidence, Rule 63(1) (1953) ; Cal Evid Code, § 1238 (West 1966); Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Preliminary Draft of Rules of Evidence for the United States District Courts and Magistrates, Rule 8-01 (c) (2) (iii) (March 1969). We conclude that it was not error for the trial court to admit the testimony of the police officer with respect to Mukahirn’s identification of defendant.

We find no reversible error in this case.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J„ concur.


author: MR. JUSTICE McNAMARA

text:
    James L. O’Keefe, Public Administrator of the Estate of Christopher D. O’Brien, Plaintiff-Appellant, v. Lee Calan Imports, Inc., an, Illinois Corporation, Defendant-Appellee, Third-Party Plaintiff, v. Field Enterprises, Inc., Third-Party Defendant.
    Gen. No. 54,102.
    First District, Third Division.
    September 3, 1970.
    John D. Vosnos, of Chicago, for appellant.
    Zenoff, Westler, Jones & Kamm, of Chicago, for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Christopher D. O’Brien brought suit against defendant for an alleged breach of contract. O’Brien died subsequent to the filing of the lawsuit, and the administrator of his estate was substituted in his stead. Field Enterprises, Inc. was joined as a third-party defendant, but was dismissed from the suit, and that order of dismissal is not involved in this appeal. Plaintiff and defendant filed cross-motions for summary judgment. The court denied plaintiff’s motion for summary judgment and granted defendant’s motion. This appeal follows. The facts as set forth in the pleadings and cross-motions for summary judgment are not in dispute.

On July 31, 1966, defendant advertised a 1964 Volvo Station Wagon for sale in the Chicago Sun-Times. Defendant had instructed the newspaper to advertise the price of the automobile at $1,795. However, through an error of the newspaper and without fault on part of defendant, the newspaper inserted a price of $1,095 for said automobile in the advertisement. O’Brien visited defendant’s place of business, examined the automobile and stated that he wished to purchase it for $1,095. One of defendant’s salesmen at first agreed, but then refused to sell the car for the erroneous price listed in the advertisement.

Plaintiff appeals, contending that the advertisement constituted an offer on the part of defendant, which O’Brien duly accepted and thus the parties formed a binding contract. Plaintiff further contends that the advertisement constituted a memorandum in writing which satisfied the requirements of the Statute of Frauds.

It is elementary that in order to form a contract there must be an offer and an acceptance. A contract requires the mutual assent of the parties. Calo, Inc. v. AMF Pinspotters, Inc., 31 Ill App2d 2, 176 NE2d 1 (1961).

The precise issue of whether a newspaper advertisement constitutes an offer which can be accepted to form a contract or whether such an advertisement is merely an invitation to make an offer, has not been determined by the Illinois courts. Most jurisdictions which have dealt with the issue have considered such an advertisement as a mere invitation to make an offer, unless the circumstances indicate otherwise. 157 ALR 744 (1945). As was stated in Corbin on Contracts, § 25 (1963) :

“It is quite possible to make a definite and operative offer to buy or to sell goods by advertisement, in a newspaper, by a handbill, or on a placard in a store window. It is not customary to do this, however; and the presumption is the other way. Neither the advertiser nor the reader of his notice understands that the latter is empowered to close the deal without further expression by the former. Such advertisements are understood to be mere requests to consider and examine and negotiate; and no one can reasonably regard them otherwise unless the circumstances are exceptional and the words used are very plain and clear.”

In Craft v. Elder & Johnston Co. (Ohio App), 38 NE2d 416 (1941), defendant advertised in a local newspaper that a sewing machine was for sale at a stated price. Plaintiff visited the store, attempted to purchase the sewing machine at that price, but defendant refused. In holding that the newspaper advertisement did not constitute a binding offer, the court held that an ordinary newspaper advertisement was merely an offer to negotiate. In Ehrlich v. Willis Music Co. (Ohio App), 113 NE 2d 252 (1952), defendant advertised in a newspaper that a television set was for sale at a mistaken price. The actual price was ten times the advertised price. The court found that no offer had been.made, but rather an invitation to patronize defendant’s store. The court also held that defendant should have known that the price was a mistake. In Lovett v. Frederick Loeser & Co., 124 Mise 81, 207 NYS 753 (1924), a newspaper advertisement offering radios for sale at 25% to 50% reductions was held to be an invitation to make an offer. Accord, People v. Gimbel Bros., 202 Misc 229, 115 NYS2d 857 (1952).

We find that in the absence of special circumstances, a newspaper advertisement which contains an erroneous purchase price through no fault of the defendant advertiser and which contains no other terms, is not an offer which can be accepted so as to form a contract. We hold that such an advertisement amounts only to an invitation to make an offer. It seems apparent to us in the instant case, that there was no meeting of the minds nor the required mutual assent by the two parties to a precise proposition. There was no reference to several material matters relating to the purchase of an automobile, such as equipment to be furnished or warranties to be offered by defendant. Indeed the terms were so incomplete and so indefinite that they could not be regarded as a valid offer.

In Lefkowitz v. Great Minneapolis Surplus Store, 251 Minn 188, 86 NW2d 689 (1957) defendant advertised a fur stole worth $139.50 for sale at a price of $1.00, but refused to sell it to plaintiff. In affirming the judgment for plaintiff, the court found that the advertisement constituted a valid offer and, upon acceptance by plaintiff, a binding contract. However in that case, unlike the instant case, there was no error in the advertisement, but rather, defendant deliberately used misleading advertising. And in Lefkowitz, the court held that whether an advertisement was an offer or an invitation to make an offer depended upon the intention of the parties and the surrounding circumstances.

In Johnson v. Capital City Ford Co. (La App), 85 So2d 75 (1955), defendant advertised that anyone who purchased a 1954 automobile could exchange it for a 1955 model at no additional cost. Plaintiff purchased a 1954 automobile and subsequently attempted to exchange it for a 1955 model, but was refused by defendant. The court held that the advertisement was an offer, the acceptance of which created a contract. However, in that case, the advertisement required the performance of an act by plaintiff, and in purchasing the 1954 automobile, plaintiff performed that act. In the case at bar, the advertisement did not call for any performance by plaintiff, and we conclude that it did not amount to an offer.

Because of our view of these proceedings, it is unnecessary to consider the issue of whether the newspaper advertisement constituted a memorandum in writing satisfying the requirements of the Statute of Frauds.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Stephen Chilikas, Defendant-Appellant.
    Gen. No. 54,261.
    First District, Third Division.
    September 3, 1970.

      James M. Sammons, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony M. Montemurro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Stephen Chilikas was found guilty of aggravated assault and sentenced to ninety days in the House of Correction. The charge was a misdemeanor and the trial was without a jury. He complains that he was denied the assistance of counsel and the right to cross-examine witnesses, and that he was compelled to testify against himself.

Chilikas was charged with having committed an aggravated assault upon a cabdriver named Michael Konieczny. He informed the court that he was ready for trial and that he waived a jury. He was not represented by counsel and he did not request the assistance of counsel. His complaint really is that he was not advised of his right to counsel.

Article VI of the Constitution of the United States provides that, “In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” The Illinois constitution provides in section 9 of Article II that, “In all criminal prosecutions the accused shall have the right to appear and defend in person and by counsel . . . .” Paragraph 113-3(a), chapter 38, Ill Rev Stats 1967, states: “Every person charged with an offense shall be allowed counsel before pleading to the charge.” The pertinent Supreme Court rule (Ill Rev Stats 1967, c 110A, par 401 (b)) states that, “The court shall not permit a . . . waiver of . . . counsel by any person accused of a crime for which, upon conviction, the punishment may be imprisonment in the penitentiary, unless the court finds . . . that the accused . . . understands he has the right to counsel, and understandingly waives that right . . . .” The constitutional provisions, the statute and the rule have been construed adversely to the defendant’s contention. . It is presently the law of this state that if a person is charged with a felony he must be represented by counsel, or counsel must be appointed for him, or counsel must be waived by him; but if a person is charged with a misdemeanor the court has no duty to advise him of his right to counsel. People v. Dupree, 42 Ill2d 249, 246 NE2d 281 (1969). The present case is controlled by the above decision. Under the prevailing law, the trial court did not err in not informing the defendant that he was entitled to be represented by counsel.

The absence of counsel, however, magnifies the unfairness of the defendant’s trial. An examination of the record reveals that the cumulative effect of judicial errors deprived the defendant of the fair trial required by due process of law.

Konieczny was driving his cab in the vicinity of 47th Street and Kedzie Avenue, Chicago, on the night of June 13, 1968, when he was hailed by a bartender who had the defendant in tow. The defendant, who was under the influence of liquor, got in the cab and sat on the edge of the seat. As Konieczny made a right-hand turn, Chilikas fell over and struck his head on a rear door. The driver told him he was not sitting right and Chilikas started swearing, drew a gun and twice threatened to shoot the driver. He refused, however, to take the driver’s money when it was offered to him. Chilikas eventually left the cab without carrying out his threat. He was arrested about a month later.

Under the prodding of the court, Konieczny related how the arrest came about. He testified that a passenger in his cab told him about a man who brandished a gun in a hotel and tried to kill the proprietor. The description of the man coincided with the defendant. Konieczny testified that he went to the hotel and talked to the proprietor. They got together and agreed that Chilikas was the man they were talking about. The court in a nonjury trial is presumed to disregard incompetent evidence. People v. Armstrong, 80 Ill App 2d 77, 224 NE2d 675 (1967). The assumption cannot be indulged in this case where the court itself elicited and considered the prejudicial hearsay evidence.

Immediately after the hearsay testimony was elicited by the court, the State rested. .The court, without informing the defendant that he did not have to testify, and without giving him the opportunity to testify uninterruptedly or to present evidence in his behalf, launched an examination of its own. The questioning did not bring out the defendant’s side of the case but was an antagonistic cross-examination during which the court repeatedly expressed its disbelief in the defendant’s answers. The court, as a finder of fact, has the right to question witnesses to learn facts pertinent to the charge. People v. Palmer, 27 Ill2d 311, 189 NE2d 265 (1963). It is fundamental, however, that one accused of a crime must be given a full opportunity to present a defense. People v. Berrell, 216 Ill App 341 (1920). A trial court must be especially concerned with this right when the defendant is not represented by counsel. The court’s cross-examination of the defendant as soon as the State’s case was concluded, the biased questions and expressions of incredulity, prejudiced the presentation of his defense and were incompatible with the requirement of fairness in a criminal trial.

The court pronounced the defendant guilty and asked for his background. The assistant State’s attorney informed the court that Chilikas had been placed on probation for contributing to the delinquency of a minor, Chilikas denied this and the court said, “I am going to check this out. If your memory is bad . . . .” The court then called the defendant a liar and referred to him as a moron.

After a further discussion in which the defendant said he was a hardworking man holding two jobs, married and with one of his children in a hospital, the court said, “You are going home, but not where you thought. You are going back to your old stamping grounds.” The court then sentenced him to the House of Correction. The implication of the court’s remark about the defendant’s “old stamping grounds” is that he had been in jail. No support for this appears in the record. A trial judge is to be encouraged to consider all available and pertinent information concerning a defendant to enable him to impose an appropriate punishment, but care must be used to determine whether the information is reliable (People v. Crews, 38 Ill2d 331, 231 NE2d 451 (1967)) and it must be presented in open court. A sentence cannot be influenced by evidence not appearing in the record. Cf. People v. Wallenberg, 24 Ill2d 350,181 NE2d 143 (1962).

With the large number of criminal cases crowding our dockets, a trial court is under pressure to conduct proceedings expeditiously. See, e. g., Oaks and Lehman, The Criminal Process of Cook County and the Indigent Defendant, 1966 U of Ill L Forum 584, 614-618. But patience and open-mindedness cannot be sacrificed to expedition.

It was the court’s duty to see that the defendant did not suffer for lack of counsel; but instead of protecting him, the court aggressively participated in his prosecution. The court brought out hearsay testimony that was seriously damaging to the defendant, examined him with partiality, characterized him with opprobrious epithets and sentenced him under the mistaken impression that he previously had been in jail.

The judgment is reversed and the cause remanded.

Reversed and remanded.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. L. B. Thompson (Impleaded), Defendant-Appellant.
    Gen. No. 54,330.
    First District, Third Division.
    September 3, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Michael Weininger and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony M. Montemurro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant L. B. Thompson, along with Andrew Jackson, was charged with armed robbery. After a jury trial, both men were found guilty of that charge and defendant Thompson was sentenced to a term of 3 to 6 years in the penitentiary. Defendant Thompson alone appeals, contending that he was not proved guilty beyond a reasonable doubt; that the trial court erred in refusing to examine the State’s file to see if it contained the statement of a witness; and that the court committed prejudicial error by allowing certain hearsay testimony into evidence.

On Sunday June 30, 1968 at about 4:15 p. m., Michael Lynch was robbed by two men in the hallway of a building located at 936 West 14th Street in Chicago. Lynch testified that one man got on each side of him, and told him that if he didn’t shout, they wouldn’t hurt him. Lynch identified defendant and Jackson as his robbers, and testified that defendant held a long knife on him. His wallet was taken, but Lynch did not know which person took it, nor did he remember the month, date and year that the robbery took place. Lynch left home that morning with money to shop in the Maxwell Street area, but did not have any money when he met the robbers. He also testified that he had no reason to enter the building in question, and did not know anyone there; he just walked in.

Two Chicago police officers testified that they were on duty when a young boy, described by one of the officers as being between 8 and 10 years of age, told them that a man was being robbed in a hallway, and led them to the building. As they entered the hallway, they observed defendant and Jackson on either side of Lynch. Defendant was holding a knife and also had the victim’s wallet in his hand. When he saw the police, defendant dropped the wallet and knife, and attempted to walk away, but was apprehended by two police officers along with several other police officers who came to the scene.

Defendant and Jackson presented no witnesses in their behalf, and neither of them testified at the trial.

Defendant contends that he was not proved guilty beyond a reasonable doubt, arguing that Lynch’s testimony was incredible.

The credibility of witnesses is a matter for determination by the triers of fact with their superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor on the stand, and their judgment will not be disturbed upon review unless the evidence is so improbable or unsatisfactory as to create a reasonable doubt of defendant’s guilt. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963).

In the instant case, the State proved that defendant robbed Lynch and that the crime was witnessed by two officers of the Chicago Police Department. Although Lynch was vague as to certain details of the robbery, we cannot agree that his testimony was incredible. He positively identified defendant and Jackson as his robbers, and further identified defendant as the man who held the knife on him. Moreover, the testimony of the two police officers was clear, positive and convincing. The officers apprehended defendant during the commission of the robbery, and while he was in possession of the victim’s property. We find that defendant was proved guilty beyond a reasonable doubt.

Defendant also contends that the trial court erred in refusing to examine the State’s file to see if it contained a statement made by the victim to the police.

After Lynch completed his testimony, defense counsel requested that he be furnished the Grand Jury minutes of Lynch’s testimony plus any pertinent police reports. The assistant State’s Attorney provided the Grand Jury minutes to defense counsel, but informed counsel and subsequently the trial judge that Lynch had not given a statement to the police. The State also indicated that it had no objection to the court looking at its file. However, the judge stated that he had no reason to disbelieve the State’s representation, and told defense counsel that since there were no reports, they could not be given to the defense. After the judge made this statement, the assistant State’s Attorney said that he had only his work product and the Grand Jury testimony, and the trial proceeded.

A defendant is entitled to the production of statements and reports of witnesses made prior to trial. However, before production of a statement must be ordered by the trial court, the defense has to make a preliminary showing as to the existence of such a statement. People v. Golson, 37 Ill2d 419, 226 NE2d 610 (1967). And where the defense fails to interrogate the police regarding the statement, the mere unverified statement of defense counsel in colloquy during the course of trial is not sufficient to establish the existence of a prior written statement. People v. Durso, 40 Ill2d 242, 239 NE 2d 842 (1968).

In the case at bar, defendant failed to lay any foundation as to the existence of a prior statement by Lynch. Neither Lynch nor the police officers testified as to any such statement, and the defense offered no evidence in support of its existence. The prosecutor stated unequivocally both to defense counsel and to the trial court that no such statement existed, and we do not believe that his subsequent reference to work product implied the existence of a statement. For these reasons, the trial court did not err in refusing to examine the State’s file. Cases cited by defendant for the proposition that statements must be furnished to the defense all involve factual situations where it was shown that the State had possession of such statements.

Defendant next argues that the court committed prejudicial error by allowing certain hearsay testimony into evidence.

Over objections by defendant, the two police officers were permitted to testify that they were told that a man was being robbed in a nearby hallway. In closing argument, the prosecutor mentioned that the police officer had testified that he was informed by a boy that a robbery was in progress. No objection was made by defendant to that comment.

We agree with defendant that the testimony in question was hearsay and should not have been admitted into evidence. However, we are not persuaded that the testimony was prejudicial to defendant in view of the overwhelming proof of his guilt. In Chapman v. California, 386 US 18 (1967), the United States Supreme Court held that, while there are some constitutional rights so basic to a fair trial that their violation could never be treated as harmless errors, not all such trial errors call for reversal. In Harrington v. California, 395 US 250 (1969), the court reaffirmed the Chapman rule. In Harrington, confessions implicating Harrington made by two codefendants who did not testify were introduced into evidence. Several eyewitnesses had placed Harrington at the scene of the murder, and Harrington himself had made a statement admitting his presence at the crime. The court held that the introduction of the confessions of the two codefendants who did not testify was error, but went on to rule that in view of the overwhelming evidence of Harrington’s guilt, it was harmless error.

Similarly in the case at bar, defendant was caught during the commission of a robbery, and was identified by three eyewitnesses. In light of the overwhelming evidence of his guilt, we conclude that under the facts and circumstances of this case, the introduction of the cumulative hearsay testimony constituted harmless error. As to the comment by the prosecutor in closing argument that the police officer had been informed by a boy that a robbery was in progress, no objection was made by defendant, and he cannot now complain. Moreover the prosecutor did not place undue emphasis on the comment, and we do not believe it to have been unduly prejudicial to defendant.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SCHWARTZ, J., concur.


author: JUSTICE SCHWARTZ.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Paul Horonzy, Defendant-Appellant.
    Gen. No. 54,383.
    First District, Third Division.
    September 3, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

JUSTICE SCHWARTZ.

Not to be published in full.


text:
    Josephine Odeneal Davis, Plaintiff-Appellee, v. Theodore Davis, Defendant-Appellant.
    Gem. No. 54,555.
    First District, Third Division.
    September 3, 1970.

      Starke, Anglin, Wertz & May, of Chicago (Frank A. Anglin, Jr., of counsel), for appellant.
    Wexler, Kane & Rosenzweig, of Chicago (Samuel L. Patterson and Ellis B. Rosenzweig, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, Josephine Davis, filed a complaint against her husband, Theodore Davis, for separate maintenance. Davis filed a counterclaim for divorce and for partition of their family residence. The trial court granted Mrs. Davis separate maintenance and dismissed the divorce and partition actions. Davis contends that the alimony and child support ordered by the court are excessive and that the court erred in dismissing his counterclaim for partition.

Davis, the appellant, has failed to file either an abstract or excerpts from the record. The abstract or excerpts are the pleadings of a case and must contain everything necessary to a decision on the issues. Dempski v. Dempski, 27 Ill2d 69, 187 NE2d 734 (1963). In an appeal, all reasonable presumptions are in favor of the judgment or decree of the trial- court, and it is the duty of the appellant to overcome these presumptions by affirmatively showing the errors charged. We have held that failure to file an abstract or excerpts warrants the dismissal of an appeal. Denenberg v. Prudence Hut. Cas. Co., 120 Ill App2d 68, 256 NE2d 71 (1970). In order to adequately consider Davis’ contention that the order of alimony and child support is excessive, it would be necessary to make a thorough search of the record to evaluate Mrs. Davis’ income and expenses, the needs of the two minor children and Davis’ income, expenses, debts and ability to pay. We are not required to search the record to find reasons to reverse a decree. The award of alimony and child support will be affirmed.

On the other hand, the issue of whether the trial court properly dismissed Davis’ partition suit only requires a review of the pleadings and the decree, and will be considered.

The right to partition commonly-owned lands is founded upon common law and statute. See Tiffany, Real Property, 2nd ed, Vol 1, § 204; Grigsby, Illinois Real Property, Vol 4, § 1642; Ill Rev Stats 1967, c 106, par 44. The present day statute provides:

“When lands . . . are held in joint tenancy or tenancy in common, whether such right or title is derived by purchase, devise or descent, or whether any or all of the claimants are minors or of full age, any one or more of the persons interested therein may compel a partition thereof . . . .”

The purpose of partition is to enable those who own property in common to sever their interests so that each one may take possession of, enjoy and improve his separate estate at his own pleasure. Mechling v. Meyers, 284 Ill 484, 120 NE 542 (1918). Where a division of the premises cannot be made without prejudice to the rights of the interested parties, the land will be sold and the proceeds divided. Peck v. Peck, 16 Ill2d 268, 157 NE2d 249 (1959).

Under both the common law and Illinois statutes, the right to partition has been held absolute (Hill v. Reno, 112 Ill 154 (1883); Howey v. Goings, 13 Ill 95 (1851)) and this principle has been followed to the present time. Partition will yield to no condition of hardship, inconvenience or difficulty (Peck v. Peck, supra) nor will the motives of the person seeking partition affect the action (Heldt v. Heldt, 29 Ill2d 61, 193 NE2d 7 (1963)). Qualifications to these principles have arisen only where partition would be in violation of a person’s own agreement, or of a condition or restriction imposed upon the estate by the one from whom he claims, or where it would be used to circumvent established principles of law or public policy. Brod v. Brod, 390 Ill 312, 61 NE2d 675 (1945); Arnold v. Arnold, 308 Ill 365, 139 NE 592 (1923). Thus, where a husband institutes partition proceedings against his wife involving their home, the husband must provide another suitable home for her or set off her homestead interest under the Illinois statute. Brod v. Brod, supra.

Mrs. Davis contends that her case falls within the public policy exception; that partition would be contrary to the State’s public policy requiring a parent and spouse to provide support and shelter for the other members of his family. She argues that if partition were granted she and her children would have to live in a rented apartment and that her husband’s past conduct shows he would not make the regular alimony and support payments to enable her to pay the rent. This contention has been rejected in Heldt v. Heldt, 29 Ill2d 61, 193 NE2d 7 (1963). The parties to the suit were husband and wife and they were the parents of three teen-age children. The wife sought a partition of their family residence and the husband opposed it primarily on the ground that it would be against public policy for either spouse, holding as a joint tenant, to partition premises used as a home for both the husband and wife and their minor children. The court explicitly rejected that argument and held that the wife was entitled to partition.

The fact that in the present case the partition suit was brought as part of a counterclaim to a separate maintenance action is of no consequence. Separate maintenance does not enlarge the rights of a spouse to property held in joint tenancy. That portion of the decree dismissing the counterclaim for partition was error. The cause will be remanded for entry of a decree granting partition.

Judgment affirmed in part and reversed in part and remanded with directions.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. PRESIDING JUSTICE DAVIS

text:
    Dragisa Sajich, Plaintiff-Appellant, v. Olga Sajich, Defendant-Appellee.
    Gen. No. 69-168.
    Second District.
    September 3, 1970.

      Samuel S. Siegel and Harold A. Cowen, of Chicago, for appellant.
    Donna & Gilman, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The plaintiff, Dragisa Sajieh, obtained a divorce by-default from the defendant, Olga Sajieh, on August 27, 1952. In October, 1968, the defendant, who had been served by publication, filed a petition to vacate the decree of divorce, alleging that it had been procured through fraud, in that the plaintiff’s affidavit for publication asserted that her place of residence could not be ascertained, and that her last known address was Moravci, Serbia, Yugoslavia. The petition further alleged that the plaintiff was aware that the defendant’s last known address was Kadina Luka, Yugoslavia. After an extended hearing, the trial court granted the defendant the relief sought in her petition, and vacated the decree.

The plaintiff appealed and contends that the defendant did not prove that he fraudulently made and executed the affidavit for publication, and also urges that the defendant was guilty of laches in presenting her petition.

The evidence was conflicting, and that on the plaintiff’s behalf indicated that he and the defendant were married in Moravci, Yugoslavia, in 1927; that after their marriage they lived in Kadina Luka during the summertime and operated a small farm in that village; and that they lived in Moravci, with a cousin, in the wintertime. Kadina Luka did not have a post office; Moravei did. The two villages were approximately four miles apart. The plaintiff admitted that they did not live in Moravei every winter.

The plaintiff testified that he was taken prisoner by the Germans in 1941 and was a prisoner of war until 1945; that he did not return to Yugoslavia after the war because the communists were in control of the country; that in 1950 he migrated from Germany to this country, and that he asked his wife and children to join him, but his wife preferred to remain in Yugoslavia.

The plaintiff further testified that he wrote numerous letters to her from 1941 until the beginning of 1952, most of which he addressed to Moravei, because there was a post office there; that he addressed some mail to Kadina Luka; and that he sent money to four of his sons, and most of the money orders were addressed through Moravei.

He also stated that prior to entering the war and being taken prisoner, he received mail through the post office in Moravei; that the defendant and plaintiff were married in the church in Moravei; that when they were in Moravei, the post office delivered the mail to them there; that when they were in Kadina Luka, the post office delivered the mail to them there; and that the postmaster in Moravei knew most of the families who lived in the nearby surrounding villages, including Kadina Luka.

While a patient in a German hospital, the plaintiff met his present wife, Mathilda, whom he married in November of 1952, subsequent to the date of the divorce decree, which was entered in this proceeding. In 1954, the plaintiff and his second wife, Mathilda, bought a ten-unit apartment building, in partnership with Svetosar, a cousin of the plaintiff. In 1952, he introduced Mathilda to Svetosar as his wife. When they bought the apartment building with Svetosar, Mathilda signed all of the necessary papers as the plaintiff’s wife, in the presence of Svetosar. The plaintiff and Mathilda, as husband and wife, lived in the apartment building, which was also the place of residence of Svetosar, who visited with them almost daily. In 1956, Svetosar visited the Kadina Luka and Moravci area, and, upon his return to this country, told the plaintiff that the defendant did not object to being divorced as long as the plaintiff supported the children.

In 1962, the plaintiff brought Budimir, a son, who was born in 1935, to this country. The plaintiff, Mathilda, Svetosar and his wife, met Budimir at the train station. The plaintiff introduced Mathilda to Budimir as his wife. Budimir was immediately taken to a tuberculosis sanitarium where he was visited by the plaintiff and Mathilda several times a week during his three-month stay there. Budimir then lived with the plaintiff and Mathilda in their apartment for eight to ten months.

The plaintiff testified that Budimir told him that the defendant was unhappy about the divorce, but that she did not know about the plaintiff’s remarriage. Budimir subsequently married and the plaintiff and Mathilda, as husband and wife, attended and took part in his large wedding and reception.

In 1968, the plaintiff brought his son, Grujica, who was born in 1940, to this country. The plaintiff, Mathilda, Svetosar and his wife, met Grujica and his wife at the train station, and the plaintiff introduced Mathilda as his wife. Grujica and his wife then lived with the plaintiff and Mathilda, in their new home, for approximately three months. During this time, the plaintiff and Mathilda openly lived together as husband and wife.

The defendant’s portion of the conflicting evidence was that she and the plaintiff had lived in Kadina Luka, where her family’s farm was located; that she had been in Moravci only once, and that was when they were married; that the mail she received from her husband was addressed to her at Kadina Luka; and that she did not learn of her husband’s divorce action until after she arrived in this country in June, 1968.

Budimir testified that when he came to America there was no post office in Kadina Luka or Moravci; and that the post office receiving mail for Kadina Luka was located in Ljig. He further stated that while he lived with the plaintiff and Mathilda, his father did not tell him that he was married to Mathilda, and refused to talk about her. He admitted that after his marriage, he lived in the same apartment building as his father and Mathilda for an additional ten months.

Grujica testified that on their arrival in this country, he and his wife lived with his father and Mathilda in their house; that his father refused to talk about Mathilda with him; and that the post office for Kadina Luka was in Ljig, not in Moravci.

There was a great deal of other testimony by the members of the Sajich family and by others, but we deem it unnecessary to repeat it all here. It appears that the villages of Moravci, Ljig and Kadina Luka are all near each other — two to five miles apart — and that Kadina Luka did not have a post office. The testimony was in conflict as to whether the mail for Kadina Luka came through the post office at Moravci or Ljig. Perhaps the testimony on behalf of both parties was correct — the mail for Kadina Luka, on occasion, would come through either Moravci or Ljig.

When the plaintiff sought admission to this country, he filed all of the required documents with the immigration authorities, including a statement that he had been a farmer, with his last permanent residence at “Kadinaloga Yougoslavia.”

The clerk of the trial court testified, in essence, that she could not ascertain from the court files whether the original notification of the lawsuit was ever delivered by the postal authorities, or whether it was returned undelivered; and that if a notice was returned indicating that the addressee could not be found, there was neither a notation of such fact nor such returned envelope in any court file.

The plaintiff strongly urges that the testimony of Budimir and Grujica indicated their hostility toward him, and that their testimony that they had lived with him and Mathilda for the periods indicated, as well as other related facts, rendered incredulous their assertion that they did not know of the plaintiff’s marriage to Mathilda or that they did not discuss this with their mother. A review of the entire records persuades us to the same view, but this is not a critical factor with reference to our decision.

The essence of the defendant’s claim is that she has a right at this time to set aside the divorce decree obtained in 1952, in that the plaintiff fraudulently concealed her address from the court in his affidavit for publication and thereby induced the court to believe it had jurisdiction to enter a decree for divorce.

In Broberg v. Mann, 66 Ill App2d 134, 213 NE2d 89 (1965), this court recently had occasion to outline the elements necessary to establish fraud, and at page 139 we stated that the party charged with fraud must either have knowledge of the falsity of his statement, or make the statement in culpable ignorance of its truth or falsity, since it is the state of mind and intent of the party charged to deceive which is the foundation of fraud. On page 140, we quoted from Bundesen v. Lewis, 368 Ill 623, 632, 15 NE2d 520 (1938) to the effect that the presumption, in law, is that men are honest; and if one seeks to establish fraud as against another, it must be proven affirmatively by clear and convincing evidence. Also see: Carter v. Carter, 283 Ill 324, 332, 119 NE 269 (1918).

When we consider all of the conflicting evidence, it is apparent that all parties agreed that there was no post office in Kadina Luka. The defendant’s family had farmland in or near the village, and the plaintiff and the defendant had farmed this land. The villages of Moravci, Kadina Luka and Ljig were very close to each other and apparently Kadina Luka was the smallest of the three small villages. The families of both the plaintiff and the defendant had lived in this general area for a long period of time.

We believe that if the plaintiff had intended that the defendant should receive no notice of the pending suit, he would have listed some address other than Moravci as the last known address of the defendant. Even when we consider the testimony on behalf of the defendant, we are lead to the conclusion that the plaintiff might reasonably have assumed that if a notice of the pending suit were sent to the defendant, addressed to Moravci, there would be a likelihood she would receive it. From the record, the proximity of these three villages, their size and character, the acquaintance of their people, through attendance of religious services and ceremonies and by virtue of other circumstances, is apparent.

Also, we do not find that the statement made by the plaintiff on his immigration papers is inconsistent with our conclusion. When he entered this country he listed himself as having been a farmer with residence at Kadina Luka. The plaintiff testified that during the time he lived in Yugoslavia with the defendant, their principal place of residence was the farm in Kadina Luka. The use of Moravci on the affidavit for mailing purposes for this court proceeding is reasonable, in view of the testimony of all witnesses that Kadina Luka had no post office. It is consistent with his testimony that Moravci had a post office from which mail was delivered to Kadina Luka. We find nothing improbable with the conclusion that Ljig may also have had such a post office. Under all of the facts before us, the statements in the affidavit of the plaintiff — particularly in view of his limited education and his difficulty with our language even at the time of the hearing on this matter — seem to be those of a man who was attempting to comply with the requirements of our law and not of one who was fraudulently misrepresenting an address in order to avoid notification.

The conduct of the plaintiff subsequent to the divorce also is inconsistent with any such fraudulent intent. He and Mathilda lived openly as husband and wife in close business and personal association with Svetosar. They must have assumed that Svetosar, in writing to his wife —a neighbor of the defendant — would have mentioned this; that Svetosar while visiting his wife in Yugoslavia, prior to bringing her to this country, would have talked about the plaintiff and Mathilda with the plaintiff’s friends, relatives and neighbors in Kadina Luka and the surrounding area.

Certainly, the conduct of the plaintiff in bringing Budimir and Grujica to this country, and in arranging for each of them to live with him and Mathilda, as well as his action in participating in Budimir’s wedding and other family events, was not compatible with the fraudulent intent urged by the defendant.

Under the circumstances of this case, the delay of sixteen years between the date of the divorce and the filing of the petition to set aside the decree, particularly in view of the subsequent marriage of the plaintiff, requires strong and persuasive evidence to support the defendant’s charge of fraud, lack of notice or of knowledge of facts sufficient to be put on notice. Sloan v. Sloan, 102 Ill 581, 584 (1882).

The evidence in this case was not sufficiently clear and convincing to establish fraud on the part of the plaintiff and the decision of the trial court was against the manifest weight of the evidence and the law.

Accordingly, the judgment of the trial court is reversed and judgment is entered herein for the plaintiff.

Judgment reversed and judgment for the plaintiff.

ABRAHAMSON and SEIDENFELD, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Billy Drew Tinsley, Defendant-Appellant.
    Gen. No. 69-170.
    Second District.
    September 3, 1970.

      John T. Beynon, Public Defender, of Rockford, for appellant.

      Philip G. Reinhard, State’s Attorney of Winnebago County, of Rockford, and Gerald W. LaFayette, Assistant State’s Attorney, for appellee.
   MR. PRESIDING JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Billy Drew Tinsley, was found guilty by a jury of the crimes of attempted murder and aggravated battery, and was sentenced by the court to a term of not less than fifteen or more than twenty years in the penitentiary. On appeal, he contends that the trial court erred in admitting into evidence statements made by him to his wife, one of which was made in the presence of a police officer, and both of which were made subsequent to his indictment, without the presence of his attorney; that reversible error was committed by the court in that it allowed a defense witness to be cross-examined by the State regarding an alleged prior inconsistent statement, and thereafter the State failed to introduce evidence that the statement was actually made; and finally, that the court erred in admitting into evidence the defendant’s prior record of conviction of the offense of indecent liberties with a child.

The facts of this case, as testified to by the defendant, insofar as they are relevant to this appeal are: On January 13, 1969, the defendant called the Police Department, Loves Park, Illinois, and stated that his wife was ill and needed an ambulance; that police officers went to the defendant’s home and, upon being admitted, found his wife bleeding from severe head wounds; that the defendant stated that he had been out all evening and had returned home about 11:15 p. m.; that he found his wife on the floor moaning, “Don’t Bob”; that at her request he helped her to the bathroom and called the police; and that he had not seen any of his children in the downstairs of the house that evening.

At the trial Mrs. Tinsley testified that on March 18, 1969 — after the defendant had been indicted — at the request of a minister, she went to the Winnebago County jail to see the defendant; that during their conversation at the jail, he stated that he could not remember what had happened the night in question, but that he would have to stick to his story and would probably “do time”; that during the week preceding the trial she again had an occasion to talk with him outside a courtroom while a police officer was present; that at that time he allegedly reiterated that he could not remember the events of the night in question, but told her that he had seen their young son when the boy came downstairs prior to the arrival of the police. The police officer present at the time this statement was made, did not testify. There can be no question that Mrs. Tinsley’s testimony severely weakened the defense in this case; however, we believe the court was correct in receiving this testimony in evidence.

In interpreting the landmark case of Massiah v. United States, 377 US 201, 12 L Ed2d 246, 84 S Ct 1199 (1964), our Supreme Court has followed an interpretation which would exclude “post-indictment incriminating statements of an accused to government agents in the absence of counsel even when not deliberately elicited by interrogation or induced by misapprehension engendered by trickery or deception.” The People v. Milani, 39 Ill2d 22, 27, 233 NE2d 398 (1968). However, it neither appears from the record before us, nor is it contended by the defendant, that his wife elicited the statements from him at the behest of the State. “The Massiah case ‘did not intend to hold that all those to whom indicted persons make admissions become ipso facto government agents and that nobody to whom defendants in criminal cases make incriminating statements can testify to those statements unless counsel was present when the statements were made.’ ” The People v. Milani, supra, 28, citing Paroutian v. United States, 370 F2d 631, 632. Massiah does not preclude the admission of the post-indictment statements made by the defendant to his wife, where it appears that she in no way elicited the statements as an agent of the prosecution.

Kenneth Crowley, a defense witness, who was employed at a Loves Park bowling alley, testified at the trial that he recalled seeing the defendant at the bowling lanes on the night in question; that the defendant arrived between 7:00 and 7:30 p. m., and was there until 8:30 or 9:30 p. m., but that he didn’t know what time the defendant actually left the bowling alley. On cross-examination, the witness was asked if he remembered a conversation which he allegedly had with Officer Darrell Williams of the Loves Park Police Department, wherein he placed the defendant in the poolroom at the bowling establishment at 3:30 p. m. on the day in question. The witness said he could not recall the conversation.

Officer Williams was not called to substantiate this alleged conversation. This was improper, but we cannot say that it constituted reversible error. The crimes in question took place shortly after 11:00 p. m.; the last time the witness saw the defendant in the poolroom was between 8:30 and 9:30 p. m. Mrs. Tinsley had testified that her husband came home around 9:00 p. m. We believe that the testimony of the witness, Crowley, tended to corroborate the statements of Mrs. Tinsley, the prosecution’s witness.

Crowley also testified that he did not start work at the bowling alley until 5:00 p. m. on the day in question, and while testifying, he was unable to identify the defendant who was seated in the courtroom at the counsel table. It is not apparent to us why the prosecution would seek to impeach Crowley. In view of his testimony, and the minimal importance of the questions and answers constituting the supposed impeachment, we believe that the failure to prove such impeaching statements did not constitute reversible error. People v. Williams, 105 Ill App2d 25, 34, 35, 245 NE2d 17 (1969).

The defendant’s contention that the court erred in admitting his prior conviction on charges of taking indecent liberties with a child is without merit. When a defendant elects to take the stand, his credibility, like that of any other witness, may be impeached. . Evidence of a prior conviction, when properly presented, is competent, and the court must receive such evidence for the purpose of impeachment. People v. Gilmore, 118 Ill App2d 100, 104-106, 254 NE2d 590 (1969). For the foregoing reasons, the judgment is affirmed.

Judgment affirmed.

ABRAHAMSON and SEIDENFELD, JJ., concur.


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Arthur Johnson, Defendant-Appellant.
    Gen. No. 70-6.
    Second District.
    September 3, 1970.

      Fred M. Morelli, Jr., Assistant Public Defender, of Aurora, for appellant.
    William Ketcham, State’s Attorney of Kane County, of Geneva, and W. Ben Morgan, Assistant State’s Attorney, of Elgin, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant appeals from an indeterminate sentence of one to five years for auto theft. Although having been released on parole after serving the required portion of the minimum term, he charges that the sentence is excessive.

We have taken a motion to dismiss the appeal as moot by the State with the case. Although we have not been favored with authorities on behalf of either side, we have determined that we have jurisdiction to hear the appeal and therefore deny the motion. The right to a review of a criminal case has been held not to be affected by a full satisfaction, in the nature of the payment of a fine (The People v. Shambley, 4 Ill2d 38, 40, 41, 122 NE2d 172 (1954)), or by the serving of the sentence. (Burns v. People, 9 Ill2d 477, 479, 480, 138 NE2d 525 (1965); People v. Mosley, 100 Ill App2d 361, 362, 241 NE2d 476 (1968)). Acceptance of parole, which involves restrictions on liberty and custody in but another department of the State, has been held in other jurisdictions not to render a criminal case moot. See Ann 9 ALR3d 462, 494. Defendants who are on probation may also appeal, even as to the conditions of probation (Ill Rev Stats 1967, c 110A, § 604(b) as amended). While the precise question whether an appeal may be taken by a defendant who has been admitted to parole and who does not question the merits of his conviction but seeks only to reduce the term imposed, appears to be of first impression in this State, we believe that the principles and policy set forth in the cited cases and inherent in the cited statute, likewise permit this appeal.

However, we find no merit in defendant’s argument that the sentence should be reduced in the exercise of the power granted to this court under Supreme Court Rule 615. (Ill Rev Stats 1967, c 110A, § 615(b) (4)). The sentence included the minimum term permissible. The maximum was one-half of the statutory range. The trial court exercised its sentencing discretion in accordance with the sound principle of permitting the parole board to exercise its meaningful function of predicting the defendant’s degree of rehabilitation.

We, therefore, affirm the judgment below.

Affirmed.

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


text:
    Barbara Egermaier, Plaintiff-Appellant, v. Jerry Egermaier, Defendant-Appellee.
    Gen. No. 69-189.
    Second District.
    September 8, 1970.

      Marco and Mannina, of Downers Grove, for appellant.
    Kevin P. Connelly, of Wheaton, and Jack L. Heim, of Naperville, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Plaintiff appeals from three judgment orders. One was entered April 25th, 1969, overruling her motion for a change of venue and granting custody of a minor child, Jerry F. Egermaier, Jr., to the defendant. The second was a supplemental order entered on June 5th, 1969, affirming the previous order, while modifying the provision for “reasonable visitation” by specifically defining the term. The third order appealed from was entered on July 25th, 1969, denying plaintiff’s petition for change of custody.

The decree for divorce on plaintiff’s complaint was entered on July 14th, 1967, and granted plaintiff the permanent custody of two of the three minor children of the parties, Antonia (then age 12), and Jerry (then age 4). Permanent custody of Theresa (then age 14) was granted to defendant.

On plaintiff’s petition, an order was entered on February 2nd, 1968, granting plaintiff permanent custody of Theresa.

Plaintiff subsequently required hospital treatment for an illness and on May 11th, 1968, voluntarily and without order of court, delivered temporary custody of the three children to defendant. Thereafter, in November of 1968, plaintiff, who had remarried, petitioned for the return of Antonia and Jerry alleging defendant’s refusal to return the children. An order was entered on November 27th, 1968, granting plaintiff visitation rights and continuing her petition to the following December. In December, defendant filed a petition asking that the decree for divorce be modified to grant him permanent custody of the three children.

On December 17th, 1968, an order was entered granting defendant temporary custody of the three children and referring the matter to the probation department for investigation. The matter of permanent custody was held in abeyance pending receipt of the probation department report. The following day, a further order was entered regarding details of plaintiff’s visitation which was allowed only with respect to Jerry, the youngest child.

New attorneys for plaintiff filed a petition for change of venue on March 11th, 1969. The court continued the motion for further pleadings. On April 25th, 1969, the judge denied the requested venue change and also awarded permanent custody of the three children to defendant, granting visitation to plaintiff at all “reasonable times,” with certain conditions.

On May 21st, 1969, defendant filed a motion to further define “reasonable visitation,” and a supplemental draft order defining that provision was entered on June 5th, 1969 (pursuant to an oral order entered into the record on May 21st with concurrence of the parties defining “reasonable visitation” with reference ■ to more specific terms).

On June 20th, 1969, plaintiff filed a petition for a change of permanent custody as to Jerry, alleging new circumstances and praying for a “rehearing.” There were motions and countermotions, and upon hearing on July 25th, 1969, the court denied plaintiff’s petition which had asked that the custody of Jerry be returned to her.

At the outset, we are required to consider defendant’s claim that the April 25th order is not appealable because the notice of appeal, which was filed on August 19th, 1969, was not filed within the statutory period (Ill Rev Stats 1967, c 110A, § 80S (a)).

We are not persuaded by defendant’s argument that his motion filed May 21st, 1969, to further define reasonable visitation as that term was used in the April 25th order, was not a post-trial motion which would extend the time for appeal. The order entered on the defendant’s motion is styled a “supplemental order” and modifies the previous order within the purview of Supreme Court Rule 303(a) read together with the provisions of Ill Rev Stats 1967, c 110, § 68.3. See Tomaska v. Barone, 104 Ill App2d 356, 358-359, 244 NE2d 327 (1968).

However, we must find that the proceedings which culminated in the April 25th, 1969 and June 5th, 1969 orders were not appealed within the statutory thirty-day period even as extended by the post-trial motion filed May 21, 1969, and ruled upon on June 5, 1969. Since the notice of appeal was not filed until August 19th, we have no jurisdiction to review these orders. We cannot accept plaintiff’s further argument that the petition filed by her on June 20th, 1969 also operated as a post-trial motion and thus extended the time for the appeal of the first two specified orders.

The petition of June 20th recited the order of June 5th and further recited that “subsequent to the said hearing, plaintiff has become aware of certain circumstances . . . While the prayer of the petition is for a “rehearing,” it is obvious, both from the allegations of the petition and from the testimony at the hearing on July 23rd, that plaintiff sought to show a change in circumstances since the June 5th order which would justify a change in the previous adjudication of custody.

At the hearing on July 23rd, the plaintiff testified to observations of changes for the better in Jerry’s attitude when he visited with her, compared with his unhappiness and withdrawal in defendant’s home. A psychologist testified to an examination of plaintiff and the child conducted in early July, and concluded that Jerry would be more emotionally and psychologically secure with his mother in a household in which there was another boy (the son of plaintiff’s husband) rather than in defendant’s home where there was the stepmother and two of her children, both girls, as well as Jerry’s two sisters. The psychologist testified that he did not visit defendant’s home and relied upon information given him by plaintiff, various tests and his interview with Jerry and Jerry’s mother. Defendant and his present wife gave contradictory testimony as to Jerry’s attitude and security in his father’s home.

At the conclusion of the testimony the court stated:

“The Court: All right. Well gentlemen, I have a report here which I received in January from the investigative officer which is contrary to what the psychologist testified and I will read from it.
“ ‘Jerry, age 6% is a first grader at Lemont Grade School, a very happy little boy who wishes to please. Through the interview he sat on Mrs. Gloria Egermaier’s lap showering her with kisses. He is the only son in the home surrounded by six sisters all of whom showed a great attachment to him but Jerry’s great display for his step-mother was sincere.’
“I see nothing to contradict, no change in circumstances and the order previously entered by this Court as to custody of this boy will stand. I think it is somewhat of a shame he is used as a pawn here.
The order will stay the way it is. Thank you.”

The report of the probation officer referred to was not offered in evidence and is not found anywhere in the entire record. The probation officer was not present to testify. The report is not before us for review. It appears that the court considered matters outside the record in reaching his conclusion that the testimony of the psychologist was not credible. This was error and requires a reversal.

We have previously stated that the trial court has been given large discretion in ruling on petitions for change of custody, but that it is a judicial discretion and must be subject to review on the evidence heard in open court and a hearing must be held in conformity with substantial due process. The use of an investigative report not appearing in the record as a basis for a court’s finding prevents such a hearing. Mikrut v. Mikrut, 113 Ill App 2d 446, 451, 452, 251 NE2d 84 (1969). See 35 ALR2d, Annotated, pages 630, 635.

We, therefore, dismiss the appeal as to the orders entered on April 25th, 1969 and on June 5th, 1969. We reverse the judgment order dated July 23rd, 1969. The cause is remanded to the court below to conduct a hearing to determine whether there has been a change in the circumstances affecting the welfare of the minor child, Jerry Egermaier, Jr., since the date of the June 5th, 1969 order.

Appeal dismissed in part; reversed and remanded in part, with directions.

ABRAHAMSON and MORAN, JJ., concur.

       While defendant cites this case as authority for his position, it is distinguishable on the facts in that in Tomaska, the court properly held that a mere motion for an extension of time to file a post-trial motion does not qualify as a post-trial motion. Defendant also has cited Werbeck v. Werbeck, 70 Ill App2d 279, 217 NE2d 502 (1966). This case involved two separate and unrelated orders and is not relevant here. The final case cited by defendant, Deckard v. Joiner, 44 Ill2d 412, 416, 417, 256 NE2d 900 (1970), in oral argument, also does not apply here in our view since it involved successive and repetitive motions to vacate, made in an attempt to delay the finality of an order.