text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellant, v. United States Fire Insurance Co., a Corporation, Defendant-Appellee.
    Gen. No. 53,602.
    First District.
    May 15, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Marvin E. Aspen, Assistant Corporation Counsel, and Peter Fitzpatrick, Special Assistant Corporation Counsel, of counsel), for appellant.
    Ruff and Grotefeld, of Chicago (William S. Grotefeld and John E. Guy, of counsel), for appellee.
   RYAN, J.

This is a suit for declaratory judgment on an insurance policy. The City of Chicago brought the action to establish its right to be defended under a certain policy of insurance issued by the United States Fire Insurance Company. At the conclusion of plaintiff’s evidence, the trial court granted defendant’s motion for judgment. The City appeals.

The defendant insurance company issued an insurance policy covering liability for events arising out of a certain highway construction project. During the policy period, on August 2, 1962, Patrick J. Daly, a welder on the project, fell from a scaffold and was injured. On March 14, 1963, Daly sued the City and alleged damages of $700,000. The City first notified the insurance company of the accident and the suit on September 1,1967.

At the time of the accident, Daly was an employee of Bethlehem Steel Company who was a subcontractor to the O’Neil Construction Company. The highway project was being built for and under the direction of the City of Chicago. The injured party was working on the Canal Street overpass of the Dan Ryan Expressway.

There seems to be no dispute as to the facts involved in this appeal. The City knew of the accident through its engineer and a policeman who was summoned to the scene. Formal statutory notice, previous to the filing of the lawsuit against the City, was served on the City by the injured party on January 9, 1963. Summons was served on the City on March 15, 1963. The City filed its appearance about April 11, 1963, and thereafter participated in legal procedures without notifying the defendant insurance company until September 1,1967.

The City explains that this delay in notification occurred because the insurance policy was misfiled with the City’s Engineering Department instead of the City Comptroller who maintains an index of all policies filed with him. Apparently, at the time of the accident and the lawsuit, no one in the City’s employ checked for this policy beyond the City Comptroller’s office. Later, in August of 1967, the head of the City’s Torts Division checked with the Department of Engineering and located the policy which is the subject matter of this lawsuit.

The insurance company declined to defend the City due to the City’s failure to notify the insurance company of the accident or the lawsuit as required by the terms of the policy and this suit for declaratory judgment resulted.

The relevant provisions of the insurance policy are as follows:

“9. Notice of Accident. When an accident occurs written notice shall be given by or on behalf of the insured to the company or any of its authorized agents as soon as practicable. Such notice shall contain particulars sufficient to identify the insured and also reasonably obtainable information respecting the time, place and circumstances of the accident, the names and addresses of the injured and of available witnesses.
“10. Notice of Claim or Suit — Coverages A, B, and D. If claim is made or suit is brought against the insured, the insured shall immediately forward to the company, every demand, notice, summons or other process received by him or his representative.
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“13. Action Against Company — Coverages A, B, and D. No action shall lie against the company unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured’s obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the company.”

It is the contention of the City that late notice of the claim and of the lawsuit does not relieve the insurance company of its obligation to furnish a defense in the case for three reasons: First, because this policy was issued to protect a municipality in the discharge of a governmental function and is therefore subject to the public policy of conserving public assets. Second, because the delay was excusable under the circumstances, since the policy was misfiled. Third, because the defendant was not prejudiced by the delay since there was available to the defendant insurance company extensive investigations of the accident made by two other insurance companies, the injured man’s employer, the injured man’s lawyers and the City.

As to the first contention, contrary to the City’s position, we deem it of no significance that the insured in this case is a municipal corporation. The City’s argument misapprehends the issue in this case. The City of Chicago, to the extent that it is a named insured under a liability policy, is a contracting party. The fact that it is a municipal rather than a private corporation does not alter its status as an entity contracting with another entity. The City entered into an insurance contract containing several commonly used and clearly understood clauses. The insurance company, as a part of its insurance contract, was entitled to insist on notice of an accident “as soon as practicable” and notice of claim or suit “immediately.” The City argues, however, that these contract terms do not apply to it since they operate to violate the principle of conserving public assets. In this connection, we have considered the numerous Illinois cases cited by the City on this point. All of these cases are distinguishable from the instant case as they deal with either laches or rights created by statutes and not with specific obligations under a contract. We do not find any principles of law in these decisions which hold that a city is not bound by its legitimate contracts which are freely and properly made and which do not violate public policy. If cities are not to be bound by such contracts for reasons of public policy, such decisions must be made by the people acting through their state legislature and not through the courts. Presumably, municipalities could be prohibited from entering into insurance contracts which require them to give notice of accidents or lawsuits and it could be established as a condition of doing insurance business with municipalities that such clauses not be used. Such, however, is not now the law of this state and was not the law at the time the insurance contract in question was entered into. The principle that a municipality must comply with its contractual obligations has repeated!y been asserted by the highest court of this State and must here again be recognized and affirmed.

In Wall v. Chicago Park Dist., 378 Ill 81, 37 NE2d 752, our Supreme Court said at page 93:

“Neither these authorities, nor those from other jurisdictions relied upon by defendant, purport to hold that a governmental body is under no obligation to perform its contracts. On the contrary, the rule is well established that a municipal corporation, so far as the performance of its contracts is concerned, and unless its charter clearly provides to the contrary, must abide by its contractual obligations. Chalstran v. Board of Education, 244 Ill 470; City of Quincy v. Bull, 106 Ill 337. As this court pertinently observed in the case last cited: ‘Where there is power to make a contract, there is power to make one that shall bind. We see no more to be involved here than the simple law of contract,— whether a municipal corporation may at its will repudiate the obligation of a fair contract which it has made, and which it was authorized to make. . . . The City must be bound by the contract and grant it has made, and had authority to make, the same as would an individual.’ ”

Appellant’s second contention that the delay was excusable under the circumstances, since the policy was misfiled, is likewise without merit. The fact of the matter is that the policy was filed with the Engineering Department. Whether this constitutes misfiling, is a matter of conjecture. The office of the City Comptroller seems to be the approved repository for insurance policies. We do not think it unreasonable to assume, however that if it was the policy of the City to take out liability insurance on highway construction projects, then failure to locate the policy in the Comptroller’s Office when the accident occurred, should have prompted a further search. And if a further search had been undertaken, it would have been reasonable to make inquiry with the Engineering Department who had charge of the project. However, no one looked there or beyond the Comptroller’s Office until August of 1967 when the policy was located in the Engineering Department. There is nothing to indicate that the policy was stolen or lost; nor is there any explanation or excuse offered as to why the policy was with the Engineering Department instead of the Comptroller’s Office. If the policy was merely filed with the wrong department and if no search was made for it beyond a routine inquiry with the Comptroller’s Office, the fault, if any, lies with the City.

The subject of excuses for delayed notice in insurance liability cases was extensively reviewed at 18 ALR2d 470. We learn there that courts have, on occasion, excused a late notice where the insured was ignorant of the accident or injury; where the insured, acting as a reasonable man, believed that he was not liable; where, due to the trivial nature of the occurrence, the insured believed no claim would be filed; or where the insured, acting as a reasonably prudent person, believed that the accident was not covered by the policy. The instant case falls within none of these categories.

In the case of International Harvester Co. v. Continental Cas. Co., 33 Ill App2d 467, 179 NE2d 833, the court found that the insured did not use due diligence to determine the existence of a policy of insurance and was consequently not excused for late notice. In that case, the Appellate Court ruled against the insured regarding a policy of insurance held by another yet covering the accident. The Court said at page 472:

“To operate as an effective excuse for delay, however, lack of knowledge must be without negligence or fault on the part of the person seeking to be excused. The beneficiary’s ignorance of the policy, then, becomes only one of the circumstances to be considered in determining whether or not due diligence was exercised in the giving of notice ‘as soon as practicable.’ Allstate Insurance Company v. Hoffman, 21 Ill App2d 314; Unverzagt v. Prestera, 13 A2d 46 (Pa); Sanderson v. Postal Life Insurance Co. of New York, 87 F2d 58; Sheehan v. Aetna Life Insurance Co., 6 NE2d 777 (Mass); 75 ALR 1504; 18 ALR2d 478; 29A Am Jr § 1390.”

The Court went on:

“When we examine all the circumstances, we must give due consideration to the fact that the plaintiff is the International Harvester Company, a large industrial corporation, and not a person unsophisticated in the world of commerce and insurance. We must decide whether the plaintiff, with all the record-keeping and investigative services at its command, acted with anything less than due diligence in being unable for twenty-one months to ascertain the identity of the truck being unloaded at the time of the injury to Huttel, an accident which was promptly reported by plaintiff’s employees concerned, on the day of its occurrence. To state the problem is to indicate its proper solution.”

In the International Harvester case, the Court found that the insured had not used due diligence in locating the insurance policy of another. In the instant case, we are not concerned with locating a policy of insurance in the possession of some other party. Rather, we have the situation where the policy of insurance was in the physical possession of the insured itself at all times. Its failure to find the same can be attributable to the negligence or lack of diligence of the city itself. Therefore, we do not feel that the City has shown excusable delay in this case.

Appellant’s third contention that the trial court should not have found for the defendant without a showing by the defendant that it was prejudiced by the delay is not supported by any cases which have been called to our attention.

The last part of the policy of insurance above quoted specifically makes compliance with the terms of the policy a condition precedent to the right to maintain an action against the company. In such cases where the giving of notice and the forwarding of suit papers have specifically been made conditions precedent to a right of action against the insurer “We find the authorities overwhelmingly in favor of giving full recognition to such provisions, in which case the presence or absence of prejudice resulting from a delay in giving notice becomes immaterial.” State Farm Mut. Automobile Ins. Co. v. Cassinelli, 67 Nev 227, 216 P2d 606, 18 ALR2d 471, 441 (1950).

The issue is not whether the insured has been prejudiced but, rather, whether reasonable notice has been given. Country Mut. Cas. Co. v. Van Duzen, 351 Ill App 112, 113 NE2d 852; Simmon v. Iowa Mut. Cas. Co., 3 Ill2d 318, 121 NE2d 509; Allstate Ins. Co. v. Hoffman, 21 Ill App2d 314, 158 NE2d 428. In this case the trial court found for the defendant at the close of plaintiff’s case. Under the law as above stated, it was not incumbent upon defendant to show that it was prejudiced by the lack of notice. Notwithstanding the notice requirements of the policy of insurance, notice was not given by the City to the insurance company until more than five years after the accident and until almost four and a half years after the filing of the lawsuit against the City by the injured claimant. If the notice provisions of the insurance contract have any meaning at all, they have clearly been violated in this case. The City having offered no reasonable excuse nor any excuse falling within those excuses previously discussed as having been recognized, and no waiver of the lack of notice by the insurance company having been shown, we deem the conditions precedent of the contract of insurance breached by the failure of the City to give the required notices. Accordingly, the City is barred from asserting its right to be defended under the policy.

In citing the numerous investigations available to the insurance company, the City has failed to establish that the notice given was reasonable within the requirements of the language of the policy and the applicable law. As stated in the Allstate Insurance case previously-cited, the insurance company had a right to make its own investigation. The offer of investigation reports of others is not a substitute for timely notice.

We have considered the numerous Illinois cases cited by the City and fail to find any conflict with the decision herein propounded.

For the reasons given, the judgment of the Circuit Court of Cook County in this case is affirmed.

Judgment affirmed.

STOUDER, P. J. and ALLOY, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William O. Wolfe, Defendant-Appellant.
    Gen. No. 52,913.
    First District, Second Division.
    May 19, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James D. Hennings and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

William 0. Wolfe was convicted, following a jury trial, of the offense of unlawful sale of narcotic drugs in violation of Ill Rev Stats, c 38, § 22-3. Judgment was entered on the verdict and he was sentenced to a term of not less than ten years to life in the Illinois State Penitentiary. The prosecution of his first appeal to this court resulted in reversal of the judgment and remandment of the cause for a new hearing on defendant’s motion to suppress evidence, with directions that if the motion is denied the original judgment of conviction should be reentered and if the motion is allowed a new trial should follow, People v. Wolfe, 73 Ill App2d 274, 219 NE2d 634 (1966). The mandate of this court having been carried out and the trial court’s having again denied defendant’s motion to suppress, defendant again appeals alleging (a) that it was error to allow the State’s motion for reassignment; (b) that it was error to deny his motion for substitution of judges; and (c) that he is entitled to a new trial as his conviction was based upon perjured testimony.

Following our remandment of the cause to the trial court, it was assigned to a judge other than the one who presided at defendant’s trial. It remained on his call for a period in excess of two months, at which time, on motion of the prosecution, it was transferred to the presiding judge for reassignment. The presiding judge reassigned the case to the original trial judge on November 30, 1966, for appearance on December 5, 1966. On December 14, 1966, defendant filed a petition for substitution of judges under section 114-5 (a) of the Code of Criminal Procedure (Ill Rev Stats, c 38 (1963)). On July 26, 1967, defendant filed a second petition for substitution of judges, this one under subsection (c) of section 114-5 of the Code of Criminal Procedure, alleging prejudice of the trial judge. Both petitions for substitution of judges were denied, and after a hearing on defendant’s motion to suppress, the motion was denied, judgment of guilty entered, and defendant again sentenced.

The defendant first contends that the trial court erred in allowing the motion of the State for reassignment. He argues that section 114-5 of the Code of Criminal Procedure makes no provision for substitution of judges on motion of the prosecution and therefore the reassignment of the cause to the original trial judge was error. The State argues that the reassignment was proper under the mandate of this court that the cause be remanded to the “trial court” in that the terms “trial court” and “trial judge” are synonymous. We find neither of these arguments to be persuasive. Although the defendant is correct in his analysis of the statute, it does not follow that a reassignment cannot be supported by other authority. Further, the terms “trial court” and “trial judge” are not synonymous. There is only one trial court before which this cause, at any stage of its history, could have been heard, the Circuit Court of Cook County, in the various divisions and branches of which many “trial judges” preside.

This court does, however, take judicial notice of the rules, orders, and procedures adopted by the Circuit Court. We find General Orders eleven (11) and thirteen (13) of the Circuit Court, authorizing transfer of a cause to a judge to which it had been previously assigned sufficient authority to justify the transfer of which defendant complains.

General Order No. 11 — Dated Jan. 2,1964.

The presiding judge of the Criminal Division, County Department, Circuit Court of Cook County, is hereby authorized to transfer to any judge previously assigned to the Criminal Division, County Department, or to the former Criminal Court of Cook County any matter previously assigned to him for the purpose of
1) terminating such matter; and
2) hearing all post-trial motions and proceedings concerning such matter.

General Order No. 13 — Dated Oct. 20, 1964.

The Presiding Judge of each Division of the County Department and each District of the Municipal Department of the Circuit Court of Cook County is authorized to transfer to any judge previously assigned to said Division or District any matter previously assigned to that judge for the purpose of
1) terminating such matter; and
2) hearing all post-trial motions and proceedings concerning such matter.

The clear intention expressed by these orders is that any particular matter, once assigned, be heard exclusively by one jurist, even if he no longer presides in the particular division or district in which the matter was originally heard. To hold that a similar assignment cannot be effected in situations such as the present where the judge to whom the case was originally assigned still presides in that same division would be inconsistent with that intention.

Defendant next argues that his petitions for substitution of judges were both erroneously denied. We find the denial of the petition filed under section 114-5 (a) to be proper on two equally compelling grounds. First, this subsection, commonly referred to as the mandatory substitution section, has been held not to apply after the jurist which the petition challenges has made a ruling on the merits of the case. People v. Speck, 41 Ill 2d 177, 242 NE2d 208 (1968). The proceedings from which the present appeal is taken did not constitute a new cause, but were a continuation of the proceedings over which the trial judge presided and at which he made rulings on the merits.

Secondly, section 114^5 (a) specifically provides that the petition must be filed within ten days following the date the cause is placed on a judge’s trial call. The instant cause was placed on the trial judge’s call on the date it was assigned, November 30, 1966. Clearly the petition filed December 14, 1966, fourteen days later, came too late.

Defendant’s second petition for substitution of judges was filed under section 114-5 (c). That section differs from the section previously discussed in the following significant respects. The motion must be supported by affidavit, only one judge may be named, and a hearing is had on the merits of the motion, as substitution is not mandatory. Defendant argues that denial of his motion filed under section 114-5 (c) was improperly denied in that no evidence was heard by the trial judge in support thereof as contemplated by the statute, and therefore the allegations contained in his verified motion must be taken as true, citing People v. Etheridge, 78 Ill App2d 299, 223 NE2d 437 (1966). Defendant misconstrues the holding in that case. In Etheridge the defendant was apparently denied a hearing on his motion for substitution and consequently was not given an opportunity to present evidence as the record indicated only that argument of counsel had been heard. Here however, a hearing was had at which defendant was present and represented by counsel. He was afforded an opportunity to present evidence in support of his motion and failed to do so. The duty imposed on the trial judge by section 114-5 (c) is to afford an opportunity to present evidence, not to insure that evidence is presented. That duty was fully discharged here.

Finally, the defendant has pointed out a discrepancy between the testimony of the informer at the trial and at the post-trial hearing on the motion to suppress evidence. At trial, the informer testified that he had been a narcotics addict in the past, but had “taken the cure” at the Federal Narcotics Hospital at Lexington, Kentucky. At the post-trial hearing, the informer testified that he had cured himself. Defendant argues that since this discrepancy did not come out until after trial he was not afforded the opportunity to present it to the jury as evidence of the informer’s meager credibility. Apparently aware, however, of the long established principle that a new trial will not be granted for the purpose of allowing new evidence to be presented which serves only to impeach, see People v. Potts, 403 Ill 398, 86 NE 345 (1949), defendant seeks to characterize the testimony of the informer as perjured. We do not find this single discrepancy sufficient to establish that the testimony of the informer was false. Similarly, there is no basis in the record to support defendant’s allegation that the prosecution, knowing the informant’s testimony to be false, allowed it to stand.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

McCORMCK, P. J. and BURKE, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ralph Brower, Defendant-Appellant.
    Gen. No. 53,280.
    First District, Second Division.
    May 19, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz 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 Laurence J. Bolon, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LYONS

delivered the opinion of the court.

This is an appeal from a judgment of the Circuit Court of Cook County revoking defendant’s probation and sentencing him to a term of not less than ten nor more than twenty years in the Illinois State Penitentiary. Defendant contends that violation of probation was not proven by a preponderance of the evidence and that the sentence is excessive.

In June of 1967, defendant entered a plea of guilty to the offense of burglary as charged in indictment number 66-3548. Judgment was entered on the plea and defendant was admitted to probation for a period of five years upon the condition that the first year of probation be spent in the House of Correction and upon the further condition that restitution be made to the victim of the offense, defendant’s uncle. While in the House of Correction, defendant agreed to perform certain undercover activities for the Chicago Police Department. Subsequently, the order admitting defendant to probation was amended, reducing the term of defendant’s confinement from one year to seven months. Defendant was released and began his undercover activities in January of 1968.

Defendant was charged with two separate violations of probation. The first was an alleged aggravated assault, for which defendant had not yet been tried at the time of the hearing which resulted in the revocation of his probation. At the hearing on rule to show cause why defendant’s probation should not be revoked, Kathleen Alksnis testified as follows. She is the sister of defendant’s former girl friend. When defendant was placed on probation and confined in the House of Correction, witness’ sister took possession of his clothing. When defendant and a companion came to her home to retrieve the clothing, she, standing in the house at a window, refused to allow him to enter. Defendant’s companion then returned to the car in which the pair had arrived, but defendant remained on the porch demanding entrance for the purpose of recovering his clothing. Following witness’ continued refusal of his demands to enter, defendant drew a gun from his coat and pointed it toward her. He then turned it toward the porch and fired.

David Alksnis, brother of Kathleen Alksnis, also testified and substantially corroborated the above testimony of Kathleen.

Defendant contends that an aggravated assault was not proven by a preponderance of the evidence in that the testimony of Kathleen and David Alksnis is inherently unbelievable. He argues that “it would be foolish to presume” that a man who had just been released from jail would engage in conduct such as testified to by the witnesses Alksnis.

We agree that the conduct attributed to defendant is not the product of sound judgment. We see no basis in the record, however, to establish the proposition that either one of the witnesses presented by the State was inherently unbelievable. Further, the fact that action of which the defendant stands accused did not constitute a logical course for a man in his position does not substantially undermine their testimony. When reviewing evidence in cases where the freedom of an individual hangs in the balance, courts of review are charged with great responsibility but there is no requirement that the established phenomena of irrational conduct and criminal recidivism be ignored in favor of a mandatory and irrebuttable presumption that men at all times act only in a logical, rational manner. Judges need be no more naive than other men.

Defendant has also contended that the sentence imposed is excessive under the violation of probation statute (Ill Rev Stats, c 38, § 117-3 (1967)). Subsection (d) of that section provides:

If the court determines that a condition of probation has been violated, the court may alter the conditions of probation or imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted.

Thus a sentence imposed after a finding of violation of probation can be deemed to exceed the limits of the above quoted section, only if that sentence exceeds that authorized for the offense of which the probationer was originally convicted. The penalty authorized for the offense of burglary is any indeterminate term with a minimum of not less than one year (Ill Rev Stats, c 38, § 19-1 (b)). Since the sentence imposed by the trial court does not exceed the limits prescribed by section 19-1 (b), it cannot be deemed excessive under section 117-3 (d) and it will not be disturbed by this court. People v. Smith, 105 Ill App2d 14, 245 NE2d 13 (1969); People v. Garkus, 105 Ill App2d 426, 245 NE2d 653 (1969).

Defendant has also contended that the second violation of probation with which he was charged was not established by a preponderance of the evidence. In view of our findings that he was properly found in violation of probation on the basis of the charge of aggravated assault, and that the sentence imposed is not excessive, that issue cannot affect the disposition of the case and thus need not be discussed.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE LEIGHTON

text:
    Louise Gasperik, a Minor, by Her Next Friend, Erika Gasperik, Plaintiff-Appellant, v. Carolyn Simons, Defendant-Appellee.
    Gen. No. 53,427.
    First District, Second Division.
    May 19, 1970.

      Benjamin Sugar and C. Jerome Bishop, of Chicago, for appellant.
    Francis B. Libbe and John M. O’Connor, of Kirkland, Ellis, Hodson, Chaffetz & Masters, of Chicago, for appellees.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

This was a suit to recover for personal injuries which plaintiff suffered in a crosswalk collision with defendant’s automobile. A jury returned a verdict in favor of the defendant. Plaintiff’s post-trial motion was overruled and judgment entered on the verdict. In this appeal it is contended that (1) the trial judge erred in refusing to give the jury three instructions tendered by plaintiff; (2) the statute defining rights of a pedestrian in a crosswalk should be construed to give the pedestrian an absolute right of way over a motorist; (3) the conduct of the trial judge was prejudicial to plaintiff’s rights to a fair trial; and (4) the manifest weight of the evidence warrants a reversal of the judgment in favor of defendant.

On Saturday, February 3, 1962, between 12:05 and 12:10 p. m., defendant, an eighth grade mathematics teacher, was driving her blue Ford sedan westerly on Granville Avenue approaching the intersection of Green-view Avenue, a north-south street in Chicago. On the north side of Granville, 100 feet east of Greenview, facing westbound traffic, was a sign “Children Crossing.” Gran-ville, west of Broadway, is a residential street wide enough for cars to park on each side with lanes for east and westbound vehicular traffic. Glenwood is one block east of Greenview. On the northwest corner of Granville and Glenwood was St. Gertrude’s Parochial School.

On that day, and at about the time that defendant was driving her automobile west on Granville, Charlene Gasperik, nine and a half years old, left St. Gertrude’s gym with her sister, the plaintiff who was then seven years, nine months old. They walked west on Granville on the south side of the street to Greenview, crossed Green-view to the west side. Just before plaintiff and her sister reached the southwest corner of Granville and Greenview, a laundry truck, going east on Granville reached Greenview and indicated with its turning signals that it was going to turn left and go north. Behind this truck, but waiting west of the crosswalk, was an automobile driven by Charles Dennen. The weather was “[r]ainy, sort of icy, freezing drizzle, real nasty.”

When defendant was a half block from the intersection of Granville and Greenview she saw the eastbound laundry truck and saw its position indicating it was going to turn left. The truck blocked defendant’s view of the crosswalk behind it. Defendant saw no pedestrians on the curb or the crosswalk. She did not sound her horn, she did not stop nor give any warning of her approach. Defendant checked traffic coming in and out of Green-view and proceeded west going past the truck at a speed of about ten to twenty miles per hour.

Plaintiff and her sister Charlene saw defendant’s automobile as it neared the crosswalk they intended to use to go from the south side of Granville to the north side. Before defendant’s car crossed the intersection, the children made two or three efforts to go across. Finally, plaintiff ran ahead of her sister just as defendant’s automobile reached the west side of Greenview Avenue. Gilbert R. Williams, driver of the laundry truck, and Charles Dennen, driver of the car that was west of the crosswalk, saw plaintiff run into the left rear portion of defendant’s car. From the collision that resulted, plaintiff suffered injuries for which she was hospitalized.

To recover for these injuries plaintiff alleged that defendant was causally guilty of careless and negligent acts of failing to maintain a proper lookout for pedestrians in the crosswalk, failing to yield the right of way to a pedestrian crossing the crosswalk and failing to sound the horn of her car or otherwise give signal of its approach. Ill Rev Stats 1961, c 95%, § 171(a), defined the obligations of a motorist to a pedestrian crossing within any marked crosswalk at an intersection. Two provisions of the Municipal Code of Chicago, chapter 27, sections 257 and 264, required a motorist to sound the horn of his car “when necessary,” exercise “proper precaution upon observing any child or any confused or incapacitated person upon a roadway,” and use the horn of his car to give audible warning when reasonably necessary to insure its safe operation. Plaintiff requested but the court refused to give the jury her instructions 15, 16 and 17 which stated the substance of these three provisions. This refusal is said to be error.

Instructions to a jury must, in a concise and comprehensive manner, inform it what the issues are, must state the applicable principles of law and describe the facts the jury must find in order to justify its verdict. Geiselman v. Strubhar, 302 Ill App 23, 26, 23 NE2d 383; Norton v. Cook, 14 Ill App2d 390, 144 NE2d 847. Plaintiff’s instruction 15 contained a rule of law not applicable to the case. There was no evidence by which the jury could find that defendant failed to yield the right of way, slow down or stop for plaintiff, a pedestrian in the west crosswalk of Greenview Avenue at the time of the accident. The evidence showed that plaintiff ran into the left rear portion of defendant’s car after it entered the crosswalk.

Further, there was evidence that a laundry truck was east of the crosswalk blocking defendant’s view of any pedestrian on the west side of Greenview crossing the south side of Granville to the north. Before the statute on which plaintiff relied can have application, there must be evidence that the motorist saw, or in the exercise of reasonable care could have seen, a pedestrian on the crosswalk in question.

Plaintiff’s instructions 16 and 17 had the same defect. Both stated rules of law which had no application to the facts of plaintiff’s case. Instruction 16 applies when a motorist observes “any child or any confused or incapacitated person upon a roadway.” There was no evidence that defendant observed plaintiff upon a roadway. In the absence of evidence that plaintiff was “confused or incapacitated,” the trial judge correctly refused to give this instruction. Quigley v. Snoddy, 102 Ill App2d 232, 237, 242 NE2d 775. Instruction 17 applies when sounding the horn of a car is necessary for its safe operation. Plaintiff’s evidence was that she and her sister saw defendant’s car as it approached. Therefore, it was not necessary for defendant to sound the horn of her vehicle. See Sparks v. Long, 234 Iowa 21, 11 NW2d 716 (1943). For these reasons, the court did not err in its rulings on the instructions.

Plaintiff next contends that the statute which defines the obligations of a motorist to a pedestrian crossing within any marked crosswalk (Ill Rev Stats 1961, c 95%, § 171) should be construed to give the pedestrian an absolute right of way over the motorist. Plaintiff invites us “to drop a ‘bombshell’ on the present concept of the law with relation to the rights of pedestrians in a crosswalk and the duty of an automobile driver . . . .” We decline this invitation because our Supreme Court has decided that “[t]he right-of-way statute does not give a pedestrian, on a crosswalk, the right of way over all vehicles on the street under any and all circumstances. Each case must be considered in the light of the facts and the circumstances surrounding it. The pedestrian’s right of way is not absolute because both he and the vehicle happen to be on the street at the same time. . . .” Moran v. Gatz, 390 Ill 478 at 486, 62 NE2d 443. This pronouncement is dispositive of plaintiff’s contention.

Plaintiff contends that the demeanor, attitude, rulings and remarks of the trial judge were prejudicial to her rights to a fair trial. Although plaintiff has not abstracted the portions of the record involved, she claims that on sixteen occasions the trial judge used the expressions, “Makes no difference” or “What difference does it make?” Plaintiff points to the refusal of the trial judge to allow her counsel to ask her on redirect questions concerning a deposition she could not recall when she was cross-examined. Plaintiff claims that the trial judge at one point characterized her counsel’s conduct as “unfair tactics.” Plaintiff also complains that while the trial judge appeared solicitous, patient and kind toward defendant and her witnesses, he was harsh and unduly critical of plaintiff, plaintiff’s sister and plaintiff’s mother when they testified. Overlooking plaintiff’s failure to furnish us with a duplication of the record, we have carefully read the trial transcript in order to properly evaluate these complaints.

In a trial like the one before us it was the function of the jury to weigh the evidence; and its verdict must not-be based on the opinions of the trial judge to the prejudice of either litigant. Lange v. Coca-Cola Bottling Co. of Chicago, 105 Ill App2d 99, 245 NE2d 35. However, remarks of a trial judge are not grounds for reversal where they are of little consequence either way, and the record does not show that the jury heard them. Peoria and F. R. Co. v. Barnum, 107 Ill 160. Further, remarks of a trial judge made during discussion with counsel of matters which do not concern the jury are not prejudicial. City of Geneseo v. Schultz, 257 Ill 273, 279, 100 NE 926. Our examination of the record leads us to conclude that the rulings, remarks and comments of the trial judge, about which plaintiff complains, were proper; some concerned statements or conduct of counsel for plaintiff; and others were common to trials of this kind. Neither singly nor cumulatively did these incidents prejudice the plaintiff. See Neubauer v. Coca Cola Bottling Co. of Chicago, 96 Ill App2d 18, 238 NE2d 437 and Christianson v. City of Chicago Heights, 103 Ill App2d 315, 243 NE2d 677.

Finally, plaintiff contends that the manifest weight of the evidence warrants reversal of the judgment entered in favor of defendant. She argues that because there was a sign near the northeast corner of Granville and Greenview Avenues with the words “Children Crossing,” defendant was warned that children might or could be crossing the crosswalks of that intersection. It is claimed that the least defendant could have done under the circumstances was to sound the horn of her car before she is excused of failure to yield the right of way to plaintiff in the crosswalk. Cases decided by reviewing courts of this State and those of other jurisdictions are cited to us. We find that none support plaintiff’s argument.

The unfortunate accident of February 3, 1962, occurred on a Saturday near the noon hour in a street intersection of Chicago. Two disinterested witnesses testified that plaintiff ran into the rear left side of defendant’s automobile as it was crossing the marked crosswalk. The evidence showed a truck blocked defendant’s view of the crosswalk behind it. Defendant did not, or could not see plaintiff and her sister before the accident. Defendant was operating her automobile within permissible speeds. Plaintiff and her sister saw defendant’s automobile as it approached. Thus, defendant’s failure to sound the horn of her automobile was not a cause of the accident. Introduced in evidence for defendant was a photograph looking west on Granville at the intersection of Greenview. This photographic exhibit gave a good view of the south side of Granville and the curb where the children stood before the accident. Thus, the jury had before it pictorial evidence of the accident scene.

Plaintiff had to prove her case by a preponderance of the evidence. The verdict returned should be in favor of the defendant if the evidence were evenly balanced or if its preponderance were in favor of defendant. See Kurzawa v. Brummel, 14 Ill App2d 473, 144 NE2d 839. Plaintiff, who sued to recover for injuries suffered in an automobile collision in a marked crosswalk, had the burden of proving that before and at the time of the occurrence she was in exercise of ordinary care for her own safety; that a negligent act was committed by the defendant; that she was injured; and that negligence of the defendant was the cause of the injuries.

Whether under the circumstances shown by the evidence defendant was guilty of negligence and whether plaintiff was free from or guilty of contributory negligence when she was struck by defendant’s automobile, were questions the jury had to decide. Before we can say that the verdict was against the manifest weight of the evidence, we must conclude that an opposite verdict was clearly evident. Compare Larson v. Fell, 55 Ill App2d 418, 204 NE2d 475. Applying these tests, we conclude that the verdict of the jury was not against the manifest weight of the evidence and that no reversible error appears in the record. Judgment is affirmed.

Judgment affirmed.

BURKE and LYONS, JJ., concur.


author: PRESIDING JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Burton Stanford (Impleaded), Defendant-Appellant.
    Gen. No. 53,646.
    First District, Second Division.
    May 19, 1970.
    Thomas M. Clarke, of Chicago, 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.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: MR. PRESIDING JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Mayhone, Defendant-Appellant.
    Gen. No. 53,675.
    First District, Second Division.
    May 19, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Paul P. Biebel, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

The defendant, James Mayhone, was indicted for murder. Through court-appointed counsel he entered a plea of guilty, which was accepted, and the court sentenced him to a term of not less than 18 nor more than 40 years in the penitentiary. The minimum sentence which can be imposed on one found guilty of murder is 14 years.

After the guilty plea was entered the Assistant State’s Attorney and the Assistant Public Defender representing defendant stipulated to the following facts. The defendant and the deceased, Dennie Johnson, had been drinking in a bar on July 7, 1968, from 8:00 p. m. to 4:00 a. m. the following morning. At about 5:00 a. rathe two men went to Mayhone’s apartment. It is not definitely shown which of the two made the initial proposition, but at the apartment there was an agreement that the deceased would perform an act of oral copulation on the defendant. The defendant apparently changed his mind, became angry and pushed Johnson’s chair over, causing him to fall. He' got up shouting and, according to defendant’s statement to FBI agents, “He got his hands on my shoulders and wanted to choke me. I pushed him and he was still screaming. I saw a butcher knife on the kitchen table, picked it up and the next thing I knew I stabbed him. I know I stabbed him at least once.” May-hone then dragged Johnson from the kitchen and threw him over the banister into an areaway between his building and the one next door. He then wakened his brother who had been sleeping in the apartment and told him to get out, and soon after that the defendant fled to California, where he was arrested on the murder charge and brought back to Illinois for trial on the indictment.

On October 1, 1968, when the defendant pleaded guilty, he was 21 years old, and had no prior felony convictions, although he had been incarcerated for one year in the House of Correction for theft. He now argues that the trial judge erroneously accepted his guilty plea; that the record does not contain an affirmative showing that the defendant was given a thorough enough explanation as to the meaning of a jury trial, and that when he said he would waive a jury trial he did not do so knowingly and intelligently.

Alternatively, we are asked to reduce the charge to voluntary manslaughter or reduce the sentence imposed by the trial court. The colloquy during which the defendant changed his plea from not guilty to guilty was as follows:

Mr. Reynolds: “Your Honor, I have talked to Mr. May-hone. He has indicated to me he wishes withdrawing his plea of not guilty and enter a plea of guilty.”
The Court: “Mr. Mayhone, your attorney advises me that you wish to withdraw your plea of not guilty to Indictment 68-8082 charging you with murder and plead guilty, is that correct ?”
Defendant: “That is correct.”
The Court: “You understand that when you plead guilty that you automatically waive your constitutional right to a trial by jury?”
Defendant: “Yes.”
The Court: “Do you understand that on your plea of guilty to the charge of murder you can be sentenced to a minimum of 14 years and a maximum of life or the electric chair? Do you understand that and knowing that you still wish to plead guilty to the charge of murder?”
Defendant: “Yes, sir.”
The Court: “All right, the record will so indicate that the defendant was advised of his rights and informed as to his constitutional rights and the consequences of his plea and despite that he persists in his plea of guilty and the Court will accept the plea of guilty and enter judgment accordingly.”

The defendant cites Boykin v. Alabama, 395 US 238, in support of his proposition that his plea of guilty was not shown to have been intelligently and knowingly made. The guilty plea in the instant case was entered October 1, 1968; Boykin was decided June 2, 1969, and the Illinois Supreme Court has already ruled that Boykin is to be applied prospectively only. People v. Williams, 44 I112d 334, 343, 255 NE2d 385, 390. The Boykin ruling is inapplicable here.

We find that the colloquy we have quoted amply supports the dictates of Ill Rev Stats 1967, c 38, § 113-4 (c). The trial judge properly informed the defendant that if he persisted in his plea he could be sentenced, without further showing, to a minimum of 14 years and a maximum of life imprisonment, or to death in the electric chair. Counsel urges that “the defendant was entitled to an explanation of what a jury trial was and of his entitlement to a jury trial to resolve the issues concerning the homicide.”

We do not believe that the quoted statement accurately portrays the law which was in existence at the time the plea was entered. It was the duty of the trial court to explain the consequences which could follow from a guilty plea, and although it is true that there are many consequences involved, the judge was not required to detail all the prerogatives one foregoes by pleading guilty. What had to be conveyed to the defendant was the critical concept that by pleading guilty the inquiry into the innocence or guilt of the accused party terminated, and that on the plea alone a judgment of guilty could be entered and the defendant sentenced within the limits set by the law. People v. Outten, 22 Ill 2d 146, 149, 174 NE2d 685; People v. Washington, 5 Ill2d 58, 60, 124 NE2d 890.

The trial judge fulfilled this requirement, and the entry of the guilty plea cannot now be attacked. In fact, the judge did explain that by pleading guilty the defendant waived his right to a jury trial, an explanation which at that time exceeded the statement the judge was required to make.

On the other hand, we believe that this case presents a situation in which it is proper to exercise the power given under Supreme Court Rule 615(b)(4), to reduce the punishment imposed by the trial court. According to the stipulation of facts, the deceased and the defendant had been drinking together for eight hours immediately prior to the killing. Back at the defendant’s apartment the two began pushing one another around; the deceased attempted to choke the defendant, at which time the defendant grabbed a butcher knife and stabbed the deceased. The defendant was 21 years old at the time he pleaded guilty, and had no prior felony convictions. These facts create mitigating circumstances which should be considered.

It would be improper to inquire further regarding the guilty plea once we have concluded it was accepted under permissible standards. We cannot refrain, however, from noting that the facts do call for leniency; that the punishment imposed was disproportionate to the offense, and would be more likely to prevent rather than assist rehabilitation. Accordingly, we are reducing the sentence imposed to one of 14 years (the statutory minimum) to 14 years and one day. As so modified, the judgment is affirmed.

Affirmed as modified.

LYONS and BURKE, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Abbas Sadeghzaden, Defendant-Appellant.
    Gen. No. 53,795.
    First District, Second Division.
    May 19, 1970.

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

delivered the opinion of the court.

In a trial by the court without a jury the defendant, Abbas Sadeghzaden, was found guilty of aggravated battery (Ill Rev Stats (1967), c 38, § 12-4(a)). Judgment was entered and after his oral motions for a new trial and in arrest of judgment were denied, the defendant was sentenced to seven to ten years in the State Penitentiary. In this appeal he seeks a new trial urging that: (1) he did not knowingly and understandingly waive his right to a jury trial; and (2) the trial court erred in not ordering, on its own motion, a competency hearing during the trial. Since the defendant does not question the sufficiency of the evidence, the facts will be briefly stated.

Testifying for the State were the complaining witness, Marilyn Pavlik Anagnos, and two police officers, Sergeant Leonard Stahl and Detective Mike Ricci. The defendant was the sole witness for the defense.

Mrs. Anagnos, who was unmarried at the time of the alleged offense but married at time of trial, stated that on April 1, 1968, she had known the defendant for over two years during which time they had dated periodically; that on April 1, 1968, the defendant met her after work, they had dinner together and afterwards he persuaded her to go with him to his apartment as he had a suitcase he wanted to give to her. The complaining witness and the defendant were thereafter alone in his seventh-floor apartment. He removed some stock certificates from his suitcase and told the complaining witness to endorse them to herself which she did. After returning from the kitchen with a glass of water for the defendant, she noticed that he had a small gun in his hand which he was pointing at the floor. The defendant then told her he was going to kill himself because in two days he was to be deported to Iran.

Continuing, the complaining witness testified that she attempted to persuade the defendant not to commit suicide and offered to drive him around that night and discuss the problem with him, but her efforts to leave the apartment were unsuccessful. She became frightened and went into the bathroom to see if there was anything there which she could use to protect herself but found nothing. When she returned to the defendant and sat on the couch, he told her that if she was frightened, she should take some of his pills. When she asked what would happen if she refused, the defendant said he would have to shoot her. After this conversation, the complaining witness went again to the bathroom and, after closing the door, put her back against it and braced her feet against the radiator located on the wall opposite the door in an attempt to prevent the defendant’s entry into the bathroom.

After a very short time, the defendant broke in and shot the complaining witness. She testified that the bullet passed through her arm, shattered her skull, and lodged in her head. The defendant threatened to shoot her again, but she was able to leave the locked apartment and, while screaming, ran down the seven flights of stairs to the first floor, where a tenant brought her into his apartment and called the police, who thereafter took her to the emergency room of Edgewater Hospital where the bleeding was stopped. She remained in the hospital for two weeks, during which time she was operated on and the bullet was removed from her head. As a result of the shooting, her coordination is poor in her left arm, she has a hole in her head, and she is taking medication since there is a possibility that she could go into convulsions. She identified People’s Exhibit 1, a gun, as looking like the same type weapon she saw in defendant’s hand on April 1, 1968. The shooting occurred sometime after 9:30 p. m. on that date.

Sergeant Stahl testified that on April 2, 1968, at approximately 3:20 a. m., he was on duty as a desk sergeant when the defendant came into the police station; that the defendant had a small gun, resembling an automatic, pointed at the defendant’s right temple, and said that he was going to shoot himself but wanted to talk to somebody; that the accused went into an empty office at Stahl’s request and for the next seven hours, various policemen, clergymen, and newspapermen tried to persuade the defendant to surrender his weapon. Finally, he did so without firing any shots. Sergeant Stahl identified People’s Exhibit 1, a gun, as resembling the weapon the defendant held to his temple for seven hours in the police station on April 2,1968.

Detective Ricci corroborated much of Sergeant Stahl’s testimony, also identified People’s Exhibit 1, and testified that in a conversation with the defendant at the police station, the accused admitted shooting his girl friend earlier in the evening and stated that he did so because he could not stand to leave her behind when he was deported. Now he wanted to take his own life. At the close of the State’s case, the weapon was admitted into evidence without objection and it was stipulated that the defendant was forty years of age.

The defendant testified and contended that the shooting was accidental. He stated that for three years prior to the alleged offense, he had been employed by one company, was head of its shipping department, and had lived in the United States for sixteen or seventeen years; that prior to 5:00 p. m. on April 1, 1968, the complaining witness called him at work and they made a date to have dinner together that evening; that later he and Miss Pavlik went to his apartment, where he put his gun against his temple and told her he would rather be dead than be deported; and that the gun accidentally discharged when she grabbed for it. Continuing, the defendant stated that he was holding the weapon when it went off, and the bullet went through his left arm. He then noticed that Miss Pavlik’s face was bleeding. They left the apartment together, asked a neighbor to call an ambulance, and while Miss Pavlik was apparently waiting for the ambulance, the defendant went to the police station to report the incident, but first stopped at a tavern and had some drinks. He went to the police station later and wanted to commit suicide there, but was persuaded to surrender his weapon. The defendant denied shooting the complaining witness and stated that she could have been shot by the bullet passing through his arm, ricocheting off the wall or floor, and thereafter hitting her. In rebuttal, the State introduced authenticated documentary evidence showing that in 1956 the defendant had been convicted of murder in Cook County.

Regarding the jury waiver issue, the record reflects the following colloquy between the court, the defendant, and the defendant’s appointed counsel:

Defense counsel: “. . . Mr. Sadeghzaden and I discussed the situation as to a bench or jury trial. I think we agreed he desired a bench trial, is that right sir ?”
Defendant: “Yes sir.”
Court: “Do you understand, Mr. Sadeghzaden, by doing that you automatically waive your right to a jury trial?”
Defendant: “I certainly do, your honor.”
Court: “You wish to be tried then by myself without a jury?”
Defendant: “Yes, your honor.”
Court: “Will you please indicate that by signing a jury waiver.”

(The common-law record contains the jury waiver signed by defendant.)

The Illinois Legislature — in the Code of Criminal Procedure — has codified the constitutional right (Art II, §9) to a jury trial guaranteed to defendants in criminal trials and the conditions under which such a personal privilege can be waived. The controlling statute (Ill Rev Stats (1967), c 38, § 103-6) provides:

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

The duty is imposed upon the trial court to see that such a waiver is expressly and understandingly made, which judicial responsibility is not to be perfunctorily discharged. People v. Fisher, 340 Ill 250, 265, 172 NE 722, 728 (1930). However, there is no specific or defined formula which the trial court is to follow or from which to judge whether a waiver is understandingly made but rather such a determination must rest upon the facts of each particular case. People v. Wesley, 30 Ill2d 131, 133, 195 NE2d 708, 710 (1964).

In the case at bar, the defendant agreed with his counsel, in open court, that he wished to be tried by the court. The trial court thereafter spoke directly to the accused explaining to him that he would thereby waive his right to a jury trial and receiving from the defendant a direct, unequivocal request that he wanted to be tried by the court without a jury. The defendant executed a written jury waiver form. On appeal, defense counsel urges that the trial court was too brief with the accused and should have given him a detailed and meticulous explanation of exactly what a jury trial encompassed in recognition of the fact that the defendant is an alien.

Within the facts of this case, we are not persuaded by such an argument. The record shows that the defendant, a man of the age of forty, had been in this country for sixteen or seventeen years at time of trial, was no stranger to criminal proceedings as shown by his conviction for murder twelve years before the instant prosecution, and held a responsible position as head of the shipping department for his employer. The defendant did nothing to alert the trial court to the possibility that a more detailed explanation of a jury trial was required. Indeed, the record reflects that the responses of the accused to the court regarding waiver of a jury trial were unhesitating, direct, and unequivocal. There is nothing in this record indicating that the defendant did not understand the words “waiver” and “jury” as they are commonly understood. People v. Spencer, 115 Ill App2d 398, 253 NE2d 672 (1969). His desire for a nonjury trial was clear and unmistakable. At no time was he confused or ignorant of his right to a jury trial. We hold that the circumstances surrounding the jury waiver in the case at bar amply demonstrate that it was knowingly made by the defendant. People v. Piesen, 115 Ill App2d 373, 253 NE2d 16 (1969); People v. Collins, 112 Ill App2d 458, 251 NE2d 325 (1969).

Regarding the incompetency issue, counsel for the defendant asserts that a bona fide doubt of the defendant’s lack of competency was demonstrated at the trial by the evidence of his irrational behavior in shooting the complaining witness and his subsequent conduct at the police station. He contends that although neither the defendant nor his trial counsel requested a competency hearing, the trial court erred in failing to direct one on its own motion when this evidence was presented. We do not agree. Such a contention, as presented in the instant case, would require this court to equate automatically the affirmative defense of insanity which must exist at the time of the offense with the lack of competency to stand trial at some subsequent point in time — seven months in the case at bar. The two issues of insanity and incompetency, distinct concepts in the law, are not to be regarded as synonymous. Any deficiency in the mental condition of the defendant at the time of the alleged offense does not automatically mean that he is not competent to stand trial at a later point in time. In this regard we note that the defense presented by the accused in the trial court was not one of insanity but rather that the shooting was accidental and not intentional.

After the defendant’s arraignment and on motion of his counsel, the trial court ordered the Behavior Clinic of the Circuit Court of Cook County, Criminal Division, to examine the accused on the question of his competency. The record contains a written report of the psychiatric examination of Dr. Haines, Director of the Clinic, filed three months after the offense and four months before the trial, in which Dr. Haines states that the defendant “has a good command of the English language, is able to express himself, and has never been in a mental institution but has been in a psychiatric department of another institution for observation.” It was the diagnosis of Dr. Haines that the defendant suffered from reactive depression but knew the nature of the charge and was able to cooperate with his counsel.

When the case went to trial four months later and apparently after the defendant and defense counsel had read this written report, neither the defendant nor his counsel requested a competency hearing. The accused testified in his own behalf and, in effect, cooperated with his counsel and showed that he understood the nature of the charge against him by attempting to persuade the trial court that the shooting was accidental and not intentional. His testimony was straightforward, clear, coherent, and rational. Although the written report indicated that the defendant had been in a psychiatric department of some nonmental institution for observation, this alone did not raise a bona fide doubt of his incompetency so that the trial court was duty bound to conduct a competency hearing when neither the defendant nor his counsel sought one and the conduct of the accused at his trial indicated he was rational and cooperative. People v. Richeson, 24 Ill2d 182, 181 NE2d 170 (1962). Since the record fails to support a bona fide doubt of the defendant’s alleged lack of competency to stand trial, the trial court did not err in failing to conduct a competency hearing on its own motion. People v. Tackett, 115 Ill App2d 439, 253 NE2d 658 (1969).

The judgment is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Quitman Dotson, Hubert Conley, and William Page, a/k/a William Pace, Defendants-Appellants.
    Gen. No. 53,869.
    First District, Second Division.
    May 19, 1970.

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

delivered the opinion of the court.

In a trial by the court without a jury, the defendants, Quitman Dotson, Hubert Conley and William Page, a/k/a William Pace, were found guilty of robbery (Ill Rev Stats (1967), c 38, § 18-1 (a)). After judgments were entered and their oral motions for a new trial and in arrest of judgment were denied, the defendants were each sentenced to two to ten years in the State Penitentiary. In this their joint appeal, they contend that: (1) their jury waivers were not knowingly and understandingly made in open court; and (2) they were not convicted beyond a reasonable doubt due to the conflicting testimony of the complaining witnesses.

Testifying for the State were the two complaining witnesses, Mrs. Jean Breuer and Mr. Gerald Galvin, and one of the arresting officers, Detective Sheldon Green. The three defendants testified in their own behalf.

Mrs. Breuer, a widow, stated that she met Mr. Galvin, whom she had known for two or three months, in a tavern in Chicago at approximately 11:30 p. m. on October 11, 1967; that she went to this establishment directly from her apartment; that she and Galvin drank together for two hours interrupted only by his intermittent trips to the bowling machine; that she never drinks whiskey but Galvin bought her one beer and she purchased one for herself before she and Galvin left together at approximately 1:30 a. m., as he was going to walk her home. Mrs. Breuer went on to state that as she and Galvin were going into the vestibule of her apartment building, three yelling men ran in behind them, one of them seized her purse, struck her in the eye and forehead causing her to fall, and ran back to a station wagon with her purse. He then returned to the vestibule, participated in beating Galvin with the other two men, and thereafter began dragging Mrs. Breuer, by her feet, to the station wagon saying that they should rape her. The other men said no and all three then fled in the vehicle. Mrs. Breuer identified Dotson in the courtroom as being the man who dragged her toward the station wagon and thought that Conley was also involved, but could not be positive.

Continuing, Mrs. Breuer testified that the police arrived on the scene approximately five minutes after the offense had occurred and shortly thereafter she and Galvin were taken a distance of two or three blocks to view three men sitting in a police car; that she there identified one of the men, Dotson, as being her assailant; and that her purse was returned to her later in the police station. In conclusion, Mrs. Breuer denied ever standing on a corner with Galvin on October 12, 1967, and asking for a ride home or engaging in an argument with any men on that night or seeing Galvin fighting with any men in an automobile on the night in question or ever vomiting on anyone in an auto that evening.

The other complaining witness, Gerald Galvin, testified that he and Mrs. Breuer had visited two taverns on the night in question; that they spent about one hour in the first tavern, with each drinking three small bottles of beer bought by Galvin, and thirty to forty-five minutes in the second tavern, where he had two more small bottles of beer and did not know if Mrs. Breuer had any more beer to drink. He denied that he and Mrs. Breuer were intoxicated as they left the second tavern and walked to her apartment. Regarding the robbery, Galvin testified that the incident took about five minutes; that he was holding open the door to the apartment building for the three men who were entering the vestibule behind him and Mrs. Breuer, thinking they were tenants of the building, when one of them struck Galvin with a fist knocking him to the floor of the vestibule. Two more men thereafter participated in beating him and one of them dragged Mrs. Breuer out of the hallway or vestibule. Galvin’s wallet, which contained seven dollars, was taken from him, and the robbers escaped in a 1959 or 1960 black Chevrolet station wagon.

Approximately ten minutes later, the police took him and Mrs. Breuer to look at the occupants of a black Chevrolet station wagon which had been stopped about three blocks from the scene of the robbery. Galvin testified that he identified Dotson and Conley at that time as two of the robbers and saw Mrs. Brener’s purse lying on the floor of the station wagon. The police opened the purse and found Galvin’s wallet therein but his money was missing. After making in-court identifications of Dotson and Conley as two of the robbers, Galvin went on to state that he did nothing in the two taverns on the night in question but sit at the bar and that he never asked anyone for a ride in their car nor fought or argued with anyone that evening, nor did Mrs. Breuer vomit on the night in question.

One of the arresting officers, Detective Green, stated that he and his partner talked with Mrs. Breuer and Galvin shortly after the robbery and they left the scene after receiving a description of three white males and being told the robbers left in a black 1960 Chevrolet station wagon; that five or ten minutes later this witness and his partner stopped such a vehicle about two or three blocks from the scene of the robbery and saw that three men were in the car. Detective Green identified the three defendants in the courtroom as being the occupants of the vehicle on the morning in question and stated that the police found a woman’s purse lying on the front floor of the station wagon. A man’s wallet was inside the purse. Although Detective Green testified that he detected the odor of alcohol when he spoke with Mrs. Breuer and Galvin in the police station later that morning, he denied that they were intoxicated.

All three defendants testified and stated that they had been drinking on October 11, 1967; that Dotson and Page had met each other at 9 a. m. on October 11, 1967, and had spent the rest of the day drinking together, meeting Conley at 9 p. m. and thereafter drinking with him; that at approximately 1 a. m. on October 12, 1967, Page was driving the other two defendants home when Mrs. Breuer staggered in front of Page’s station wagon and was pulled back by her companion, Mr. Galvin; that Galvin asked Page for a ride to Mrs. Breuer’s apartment, Page agreed, and they got into the back seat of the station wagon with Dotson, as Conley was in front with Page.

During the ride home, Mrs. Breuer allegedly vomited on Dotson who then pushed her into Galvin. The car stopped in front of her apartment building, Mrs. Breuer and Galvin left the car, but Galvin pulled Dotson out and started to punch him. A fight ensued between Galvin and the three defendants lasting for five minutes and going from the sidewalk into the vestibule of the building before the defendants left. All three defendants denied that they had robbed either Mrs. Breuer or Galvin.

Dotson admitted that the police found a purse on the floor of the station wagon, but Page stated that he never saw it there while he was driving the vehicle. Dotson also testified that a man’s wallet was found in Conley’s pocket. Conley stated that his pants pocket was torn during the fight which caused his keys and cigarette lighter to fall out. After the fight had ended, he saw these items, along with a wallet, lying on the ground outside the apartment building. He picked up everything and put it in his pockets, thinking these articles were his property. When the police stopped him, he noticed for the first time that he had two billfolds. After he identified his wallet, the police put the other one in the purse and took the defendants to the police station.

In rebuttal, the State introduced authenticated documentary evidence showing that in 1959 Conley had been convicted of robbery in Cook County and in 1961 Page had been convicted of burglary in Tennessee.

Regarding the jury waiver issue, the record reflects the following colloquy between the court, the defendants and their counsels:

Court: “Is this a bench or jury?”
Defense Counsel: “Bench trial, Judge. Let the record show that my clients have stated that they categorically wish to be tried by the Court and wish to waive their right to a jury trial.”
Court: “You understand you have a right to a jury trial, sir ?”
Defendant Dotson: “Yes, sir.”
Court: “Mr. Conley?”
Defendant Conley: “Yes, sir.”
Court: “Mr. Page ?”
Defendant Page: “Yes, sir.”
Court: “Is it the desire of each of you, as your counsel indicated, to waive that right and be tried by this Court without a jury? Mr. Dotson ?”
Defendant Dotson: “Yes, sir.”
Court: “Mr. Conley?”
Defendant Conley: “Yes, sir.”
Court: “Mr. Page?”
Defendant Page: “Yes, sir.”
Court: “Please sign the jury waivers then gentlemen.”

(The common-law record contains the jury waivers signed by each of the defendants.)

It is the position of counsel for the defendants on appeal that due to the alleged failure of the trial court to fully explain the meaning and function of a jury trial, the defendants did not understandingly waive their right as required by the Code of Criminal Procedure (Ill Rev Stats (1967), c 38, § 103-6). We hold that the circumstances surrounding the jury waivers in the case at bar clearly demonstrate that they were knowingly made. People v. Piesen, 115 Ill App2d 373, 253 NE2d 16 (1969); People v. Collins, 112 Ill App2d 458, 251 NE2d 325 (1969). The defendants, by their responses to the questions posed to them by the trial court, did not indicate that they failed to understand the words “waiver” and “jury” as they are commonly understood. People v. Spencer, 115 Ill App2d 398, 253 NE2d 672 (1969). Their desire for a non jury trial was clear, unequivocal, and in accordance with the representation made to the trial court by their counsel. Two of the three defendants, Conley and Page, had prior felony convictions. A pretrial investigation report contained in the instant record also shows that Dotson was no stranger to criminal proceedings having been convicted of a misdemeanor and sentenced to eight months at the Illinois State Farm. Under these circumstances, it would be unrealistic for this court to hold that the jury waivers were not under standingly made by the defendants.

Secondly, the defendants contend that the State failed to prove them guilty beyond a reasonable doubt due to the inconsistencies in the testimony of the two complaining witnesses as contrasted with the uniform testimony presented by the three defendants. The testimony of the complaining witnesses — although conflicting on two immaterial and irrelevant events occurring before the offense, i. e., how many taverns they had visited on the night in question and whether or not Galvin played the bowling machine — was consistent as to the facts of the robbery. As presented to the trial court, this case did not involve any issue of identification. Mrs. Breuer and Galvin stated that three men were involved in the crime and they fled in a station wagon; Galvin identified Conley and Dotson as two of the assailants and Mrs. Breuer pointed out Dotson also; the three defendants were apprehended in a vehicle described by the two complaining witnesses to the police shortly after Mrs. Breuer and Galvin had made a prompt complaint to the officers; at trial, the accused admitted meeting the complaining witnesses on the night in question, and Page stated that he was the driver of the vehicle. In essence, the trial court had presented to it the simple and sole issue of credibility. On the one hand, the complaining witnesses implicated the three defendants as the aggressors and, on the other hand, the accuseds stated that Galvin, one of the complaining witnesses, was the aggressor. Which testimony to believe was for the trial court as the trier of fact in this nonjury case.

Parenthetically, we note that the weight to be given to the testimony of the defendants was weakened by the fact that Mrs. Breuer’s purse was found, within a short time after the offense had occurred and only three blocks from the robbery scene, on the floor of the front seat of the station wagon driven by Page and occupied also by Dotson and Conley. The testimony of the defendants was that she had occupied only the back seat of the vehicle with her companion, Galvin and Conley. Furthermore, the State’s evidence, if believed, was that the wallet taken from Galvin was found in the station wagon and inside Mrs. Breuer’s purse. The three defendants chose to testify in their own behalf, and the credibility of two of them, Conley and Page, was impeached by their prior convictions of infamous crimes, robbery and burglary respectively. People v. Halkens, 386 Ill 167, 53 NE2d 923 (1944); People v. Ladas, 12 Ill 2d 290, 146 NE2d 57 (1957).

Apparently, defense counsel relies upon the inconsistency in the testimony of the complaining witnesses relating to events preceding the offense to support his position that, because of their intoxication, their testimony as to the subsequent robbery was improbable, unsatisfactory, and not to be believed. We do not agree. One of the arresting officers, Detective Green, testified that the complaining witnesses were not intoxicated when he spoke with them in the police station shortly after the defendants had been arrested. Furthermore, their testimony as to the robbery was corroborated by the fact that Mrs. Breuer’s purse and Galvin’s wallet were found soon thereafter in the station wagon used by the three robbers to flee the scene of the offense. The defendants were the sole occupants of that vehicle. We hold that the defendants were proved guilty beyond a reasonable doubt. People v. Young, 24 Ill2d 578, 182 NE2d 734 (1962); People v. Plodzien, 104 Ill App2d 336, 244 NE2d 343 (1968).

During oral argument, counsel for the defendants asked that Dotson’s sentence be reduced because he had no prior felony convictions but he had received the same sentence — two to ten years in the State Penitentiary— as his two coindictees, Conley and Page, who did have prior felony convictions. This contention was not raised in the brief of the defendants filed in this court. In our opinion, the sentence given to Dotson was proper. The evidence showed that he was an active participant in a crime involving violence and that he had, after striking Mrs. Breuer and taking her purse, started to drag her to the station wagon telling the other two defendants that they should all rape her. The minimum sentence of two years is proper punishment for such an offense, and the maximum sentence of ten years is long enough to hopefully provide for Dotson’s rehabilitation in conjunction with the Parole Board. The robbery statute (Ill Rev Stats (1967), c 38, § 18-1) provides for imprisonment in the penitentiary for one to twenty years. The sentence in this case is within the statutory limits, and we conclude that it is not improper. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673, 677 (1965).

The judgments are affirmed.

Judgments affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jeffery Donald, Defendant-Appellant.
    Gen. No. 54,223.
    First District, Second Division.
    May 19, 1970.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant; Edward Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Kenneth Eickert, Defendant-Appellant.
    Gen. No. 52,828.
    First District, Third Division.
    May 21, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Theodore A. Gottfried and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Kenneth Eickert was convicted in a jury trial of armed robbery and sentenced to a term of seven to ten years in the penitentiary. He contends he was not brought to trial within the time required by statute, that his constitutional right against double jeopardy was violated, and that comments by the court during the trial and by the prosecutor in the final argument deprived him of a fair trial.

Shortly after 1:00 a. m. on January 3, 1967, two men entered a Chicago tavern owned by Josephine Tripoli. They brandished pistols and announced, “This is a stickup.” Mrs. Tripoli, the bartender, and two of the five patrons who were present identified one of the men as the defendant Eickert. While his partner stood in the doorway, Eickert went around the bar and ordered Mrs. Tripoli to open the cash register. He took approximately $200 from the drawer and then ordered the patrons to place their money on the bar. One patron had no money; Eickert struck him on the head with his gun. He took money from the other people sitting at the bar and, after saying “Take a good look at me and tell the cops,” fled.

The defendant did not take the stand but two witnesses testified in his behalf. They said they were employees of another tavern and worked there over the New Year’s holiday during which the Tripoli robbery took place. This tavern was in the same building in which Eickert roomed. They testified that he was around the tavern from 10:00 a. m., January 2nd, to 4:00 a. m., January 3rd, and that about one hundred people came in and out of the tavern over the eighteen-hour period.

The defendant’s first two contentions, that he was not brought to trial within 120 days of his arrest and that he was subject to double jeopardy, arise from the fact that he was tried twice for the Tripoli robbery. The jury was unable to agree in the first trial and a mistrial was declared.

Section 9, Article II of the Illinois Constitution declares that a person accused of crime has the right to a speedy trial. Section 103-5(a), chapter 38, Ill Rev Stats 1967, implements this guarantee by providing:

“Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant. . . .”

The first trial commenced after the defendant had been in custody 108 days. After eight days a mistrial was declared. Ten days later he filed a motion for discharge asserting that more than 120 days (126) had passed from the day of his arrest to the day of the motion, that he was still in custody and had not occasioned any delay. In denying the motion the court said that the State could not be charged with the eight days consumed by the trial and, therefore, only 118 days had elapsed up to the time the motion was made. The court was correct in its computation and in its ruling.

After the motion was denied, both sides announced that they were ready for trial, but for some reason the case was continued for ten more days at which time it proceeded to trial. The State claims that the postponement was caused by the defendant; but the abstract does not show this and the State’s brief makes no citation to the record. It does not matter, however, whether the defendant or the State was responsible for the continuance. Although the second trial did not start until 136 days after the defendant was taken into custody, only twenty days elapsed between the first and second trials. The State is allowed a reasonable period between a mistrial caused by a hung jury and the next trial. Even if the delay was not attributable to the defendant, the twenty-day interlude was not unreasonable and did not infringe upon his constitutional right to a speedy trial. People v. Gilbert, 24 Ill2d 201, 181 NE2d 167 (1962); People v. Mason, 118 Ill App2d 47, 254 NE2d 600 (1969); People v. Henry, 68 Ill App2d 48, 214 NE 2d 550 (1966).

The second contention arising from the mistrial is that of double jeopardy. The defendant maintains that being tried a second time for the same offense, after a mistrial was declared for failure of the jury to reach a verdict, placed him in double jeopardy in violation of the Fifth and Fourteenth Amendments to the Federal Constitution and section 10, Article II of the State Constitution. A trial court has the authority to discharge a jury which is unable to reach a verdict and only for an abuse of discretion will this action be reversed. Dreyer v. People, 188 Ill 40, 58 NE 620 (1900), affd 187 US 71. In United States v. Perez, 22 US (9 Wheat) 579 (1824), it was held that the constitutional protection against double jeopardy is not violated by a second trial if the jury was discharged in the first trial because it was unable to reach a verdict. The courts of Illinois have adopted this view. E. g., People v. Nilsson, 44 Ill2d 244, 255 NE2d 432 (1970); People v. DeFrates, 395 Ill 439, 70 NE2d 591 (1946); Dreyer v. People, supra. In view of these decisions Eickert’s claim that he was placed in double jeopardy cannot be sustained.

At the beginning of the trial the judge said to the jurors, “Good afternoon, ladies and gentlemen. Please be seated. How did you find the lunch over at the County Jail, all right?” The jurors responded, “Very good,” and the judge remarked, “I have been told you get a little different meal than the prisoners, I am not sure about that but Mr. Eickert could probably tell you.” This remark, intended as a pleasantry, evoked a motion for a mistrial. The defense argued that it prejudicially suggested that the defendant was in jail. In this court the argument is expanded. It is now asserted that the comment also could have suggested that the defendant was incarcerated for another crime, that he had spent time in jail because of prior convictions, that no bond had been set because he was a dangerous person, or that he was too poor to make a bond and therefore more likely to commit robbery.

The following day the judge offered to clarify his remark. He said that, although he thought it very unlikely that his statement could have been misapprehended, he was willing to instruct the jury that the defendant’s incarceration was solely for the purpose of awaiting the outcome of the trial. The defendant’s counsel replied that he had no objection to the instruction if the court wanted to give it but that he would not request it — that his motion was for a mistrial. The instruction was not given.

While the trial court’s remark was unfortunate, it was far from prejudicial. A defendant who is not released on bond is guarded by bailiffs while he is on trial; when entering or leaving the courtroom he is accompanied by a bailiff. This unavoidably occurs in the presence of the jury. The jury is aware that the defendant is in custody and must infer that he is there because he is unable to make bond. This can generate as much sympathy as prejudice. The court’s innocent comment carried no implication that the jury could not have grasped by the mere observation of the proceedings taking place before it.

Eickert complains that the prosecution committed reversible error during closing argument. The defense counsel noted in his own final argument that although the prosecution had stated it might call certain police officers to the stand, they were not called. He then said, “They did not call these witnesses. They did not call a lot of witnesses. And I ask you, ladies and gentlemen, to answer in your own minds why they did not call these witnesses.” The defendant’s attorney then argued as to the alibi witnesses who could have testified for the defendant, “He wants me to bring in 20 people when, in fact, I do not have to bring in a single one. But we brought in two people.” In his reply the prosecutor said:

“. . . where are all those other people, hundreds of people in that place, by their own — ”
Defendant’s Attorney: “Objection, your Honor, and the defense does not have to prove a thing.”
Prosecutor: “You brought it up.”
Defendant’s Attorney: “I do not have to bring in anybody and he knows it.”
Prosecutor: “These are two friends of his. Where are the other friends that may testify to his whereabouts, as to whether or not he was there? That is not hundreds of other people, these two, the business people that run that place bring a cloak around him with a phony alibi.”

The court did not sustain the defendant’s objection. Eickert contends this was error because the burden of proof was shifted to him.

The defense opened the door for the prosecutor’s rejoinder by commenting upon the State’s failure to produce all of its own witnesses. Furthermore, if a defendant presents evidence of his activities with witnesses during the time the offense is supposed to have occurred, the State may comment on his failure to produce them. People v. Williams, 40 Ill2d 522, 240 NE2d 645 (1968), cert denied, 393 US 1123 (1969); People v. Swift, 319 Ill 359, 150 NE 263 (1925); People v. Sanford, 100 Ill App2d 101, 241 NE2d 485 (1968). The prosecutor urged the jury to consider the fact that while 100 people were in the tavern where Eickert was said to have been during the days of January 2nd and 3rd, only two testified. These potential witnesses were available to the defendant and not to the State. It was not argued that they would have testified adversely to him. The prosecutor’s comment was not error.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.