author: MR. JUSTICE McNAMARA

text:
    In the Matter of the Estate of Peggy Buck Hansen, Deceased. General Finance Corporation, a Corporation, Plaintiff-Appellant, v. Albert R. Hansen, Individually and as Executor of the Estate of Peggy Buck Hansen, Deceased, Lynn Hansen, Nancy Hansen Anderson, Lorna Hansen Barnes and Wendy Hansen Hahn, Defendants-Appellees.
    Gen. No. 51,833.
    First District, Second Division.
    April 8, 1969.

      Louis P. Yangas and Stanley Werdell, of Chicago, for appellant.
    Lord, Bissell & Brook, and Kenoe & Fine, of Chicago (Fred Louis and Rodney R. McMahan, of counsel), for appellees.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff, General Finance Corporation, appeals from an order of the Probate Division of the Circuit Court of Cook County dismissing its amended and supplemental complaint and an amendment thereto. Plaintiff’s final pleading consisted of six counts and sought to set aside an order of the Circuit Court granting one of the defendants, Albert Hansen, leave to spread of record his disclaimer to any property to which he may have been entitled under the will being probated, to set aside the disclaimer as being executed in fraud of creditors, a decree that the disclaimer did not effect real property in a foreign jurisdiction, a finding that Illinois did not have jurisdiction over the estate of Peggy Buck Hansen since she was not a resident of Illinois, and that the estate was opened in Illinois fraudulently and under false pretenses.

Count I of the complaint alleged that on August 16, 1963, the plaintiff had obtained a judgment against Albert Hansen, one of the defendants, in Green Lake County, Wisconsin, in the amount of $20,250 and that execution on said judgment was returned not satisfied. At the time of entry of the judgment, Albert Hansen was married to Peggy Buck Hansen. The latter died testate on January 4, 1965, and was seized of certain real estate located in Green Lake County, Wisconsin. Albert Hansen filed an application for letters testamentary on February 19, 1965, in the Circuit Court of Cook County. On March 10, 1965, letters testamentary were issued and the will was admitted to probate. The table of heirship listed the decedent’s heirs as her husband and four daughters. The will provided that Albert Hansen be executor; that he should receive one-third of the estate; and that the four daughters should receive the residue in equal shares. On May 12, 1965, an order was entered in the Circuit Court of Cook County granting leave to Albert Hansen to spread of record his disclaimer to any interest in the estate of Peggy Buck Hansen. On May 24, 1965, plaintiff filed a complaint in Cook County against Albert Hansen on his indebtedness, but was unable to obtain service. Still unable to obtain execution on its Wisconsin judgment, plaintiff was given leave in Cook County to withdraw its complaint and to register its foreign judgment against Albert Hansen. On March 18, 1966, a final judgment was entered in Cook County. Neither of those judgments, based upon the same indebtedness, has been satisfied in whole or in part. Plaintiff went on in Count I to claim that the order entered in Cook County allowing Albert Hansen to spread of record his disclaimer should be vacated because plaintiff did not have notice of the order thus violating its constitutional rights to due process.

The subsequent five counts adopted paragraphs one through eighteen of Count I. Count II further alleged that Albert Hansen’s disclaimer was a fraud against his creditors, in violation of Ill Rev Stats 1963, c 59, § 4, and that the disclaimer was filed in the Wisconsin courts with the fraudulent intent of destroying plaintiff’s judgment lien in that State. Plaintiff further alleged that the disclaimer constituted a voluntary conveyance and was subject to attack by creditors.

In Count III the plaintiff further alleged that Albert Hansen was vested of one-third interest in the Wisconsin real estate immediately upon the death of his wife, regardless of whether she died testate or intestate, and the Illinois court did not have the authority to grant leave to spread of record the disclaimer inasmuch as it applied to real estate located in Wisconsin.

In Count IV, plaintiff further alleged that the Illinois statute dealing with disclaimers (Ill Rev Stats 1963, c 3, § 15) is in derogation of the common law and must be strictly construed, and that consequently reference to “heir” in that section does not include a “surviving spouse.” Plaintiff further claimed that the word “heir” is not synonymous with “surviving spouse” since the latter term connotes additional rights and privileges under the Probate Act. Thus under either theory Albert Hansen was not an “heir” and could not disclaim his inheritance.

Count V of the complaint alleged that Albert Hansen fraudulently and through misrepresentation opened Peggy Buck Hansen’s estate in the Circuit Court of Cook County in violation of section 54 of the Probate Act in order to obtain an order granting leave to spread his disclaimer of record; and that one or more of the co-defendants, his daughters, entered into a conspiracy with Hansen to defraud the plaintiff out of the payment of the aforesaid judgment. Count V further alleged that all orders of the Circuit Court were void and the court had no jurisdiction because: decedent had no real estate or mansion house in Illinois; she had no place of residence in Illinois; and approximately 96 percent of her estate was located in Green Lake, Wisconsin, at the time of her death. Plaintiff further claimed that, had the true facts been set out in the application for admission of the will to probate, the Illinois court would not have issued letters testamentary. Plaintiff further alleged that the petition for the admission of the will was false in that it gave decedent’s address as 12 South Michigan Avenue, Chicago, the location of the Chicago Athletic Association, of which decedent was not a member. She did not reside at that address, and she was hospitalized and died in Wisconsin. Inventories filed in both Illinois and Wisconsin courts showed that the deceased had total assets of $65,650.25 in Wisconsin and $190 in Illinois. Plaintiff alleged further that, upon information and belief, the inventory filed in the Circuit Court of Cook County was false, since the location of the inventoried items in Illinois was not disclosed. Plaintiff in Count V prayed that the court find that it did not have jurisdiction to admit the will to probate because allegations of deceased’s residence were false, because she did not possess any real estate in Illinois and because 96 percent of her estate was located in Wisconsin.

In Count YI, in addition to adopting paragraphs one through eighteen of Count I, plaintiff also adopted the paragraphs set forth above in Count V. Plaintiff further alleged in Count VI that on May 11, 1965, ancillary probate proceedings were filed in Green Lake County, Wisconsin. Certified and exemplified copies of decedent’s will and Albert Hansen’s disclaimer were filed in those proceedings. The petition filed in Wisconsin indicated that the deceased was a resident of Chicago at the time of her death, but an affidavit of one of her daughters stated that deceased was a Wisconsin resident at the time of death. A final account was filed in the ancillary proceedings on October 18, 1965 stating that decedent did not own any real estate or tangible personal property outside Wisconsin. A letter from the attorney of record in Wisconsin to the Wisconsin Department of Taxation stated that the deceased was a resident of Chicago, Illinois, but had no estate in Illinois. Another letter signed by the Public Administrator in Wisconsin stated that decedent was a resident of Green Lake County, Wisconsin, at the time of her death. Plaintiff further alleged that, without notice to plaintiff defendants conveyed all of their interest in the aforementioned real estate to a third party and that these conveyances were effectuated through the fraudulent collaboration of all of the defendants with the intent of defeating any interest plaintiff may have had in the real estate. Plaintiff further alleged that the probate proceedings instituted in the Circuit Court of Cook County constituted a fraud by defendants upon the court and upon the plaintiff.

A motion to strike and dismiss was allowed by the trial court and this appeal follows. The issue presented to this court is the sufficiency of General’s complaint.

Plaintiff contends in Count I that the order of of the Circuit Court of Cook County granting leave to Albert Hansen to spread his disclaimer of record violated its constitutional rights to due process of law, since plaintiff was not given notice of the proceedings. In proceedings for the admission of a will to probate, notice is required only to be given to heirs and legatees of the deceased. McGee v. Vandeventer, 326 Ill 425, 158 NE 127 (1927). This entire matter arose in the course of the probate of the estate of Peggy Buck Hansen. Plaintiff was not a creditor of that estate nor did it ever assert any claim against the decedent during her lifetime. It is clear that plaintiff was not entitled to notice of any proceedings prior to filing its complaint nor was Albert Hansen required to give notice to his creditors that he was disclaiming all interest in his wife’s estate. As will be discussed further in this opinion, no person can be required to accept any devise or bequest. People v. Flanagin, 331 Ill 203, 162 NE 848 (1928). The method and requirements of filing a disclaimer are set forth in section 15b and c of the Probate Act (Ill Rev Stats 1963, c 3, § 15b and c). Section 15b requires that the disclaimer describe the interest to be disclaimed and be properly signed and acknowledged. Albert Hansen complied with the requirements of the Probate Act. The document was in proper form and was filed within 10 months after decedent’s death as required. Plaintiff has in no way been denied due process by virtue of the fact that it did not get notice of the disclaimer.

In Count II, plaintiff argues that the disclaimer was a fraud upon creditors, in violation of Ill Rev Stats 1963, c 59, § 4, which provides as follows:

“Every gift, grant, conveyance, assignment or transfer of, or charge upon any estate, real or personal, or right or thing in action, or any rent or profit thereof, made with the intent to disturb, delay, hinder or defraud creditors or other persons, and every bond or other evidence of debt given, suit commenced, decree or judgment suffered, with like intent, shall be void as against such creditors, purchasers and other persons.”

Section 15d of the Illinois Probate Act provides in part as follows:

“Unless the decedent or donee of the power has otherwise provided by will, the property or interest therein or part thereof disclaimed . . . shall descend or be distributed .... In every case the disclaimer shall relate back for all purposes to the date of death of the decedent of the donee . . . .”

While certain jurisdictions have held that a person’s right to disclaim an interest under a will is limited where the rights of creditors are involved, In re Kalt’s Estate, 16 Cal2d 807, 108 P2d 401 (1940), Illinois cases decided prior to the passage of the above disclaimer statute established the rule that a party does not have to accept an estate against his will, and that a disclaimer prevented passage of title to the disclaimant. In People v. Flanagin, 331 Ill 203, 162 NE 848 (1928), the Elinois Supreme Court stated at page 208:

“In these cases the rule is announced that the renunciation relates back to the moment when the gift was made, so that the estate does not vest but remains in the original owner precisely the same as if the will or deed had never been executed, or passes under the instrument, according to its terms, to another, (citation omitted) and that a renunciation is not a voluntary conveyance and is not subject to attack by creditors.”

In Count III plaintiff contends that the Circuit Court of Cook County did not have the power to spread of record a disclaimer which affected real estate located in another jurisdiction.

Although the general rule is that a court must have jurisdiction over land to affect its rights, this is not always true in those cases where the court has in personam jurisdiction and the equitable powers of the court are invoked. Bevans v. Murray, 251 Ill 603, 96 NE 546 (1911). In Gordon v. Gordon, 6 Ill2d 572, 129 NE2d 706 (1955), the Illinois Supreme Court held that if the rights sought to be adjudicated did not require the court to deal with the real estate itself, the court had jurisdiction to adjudicate such rights if it had all parties and interests before it.

The disclaimer filed and spread of record did not purport to deal directly with any real estate; rather it involved the rights of the heirs and devisees of Peggy Buck Hansen’s will. Moreover the will and disclaimer were filed in the ancillary proceedings in Wisconsin and there given validity and effect. The rights of all the heirs and legatees in relation to the real estate were thus ascertained in the Wisconsin proceedings.

We find no merit in plaintiff’s contention in count IV, that since section 15b of the Probate Act sets forth the persons who can avail themselves of the right to disclaim as “heir, next of kin, devisee, legatee” and omits the term “surviving spouse,” Albert Hansen had no authority to file a disclaimer of his wife’s estate. While we believe him to be an heir within the meaning of the statute, he certainly was a devisee of the will and thus qualified as one authorized to disclaim an interest.

In Count V of its complaint, plaintiff contends that the Circuit Court of Cook County lacked jurisdiction to probate the will because defendants violated section 54 of the Illinois Probate Act. However plaintiff’s reliance on section 54 is misplaced. That section recites in part as follows:

“When the will of a testator is probated ... in this State, the probate or the administration shall be in the court of the county determined as follows

In the case of In re Willavize’s Estate, 21 Ill2d 40, 171 NE2d 21 (1960), our Supreme Court stated at page 43:

“Section 54 of the Probate Act must be considered to be a venue provision, making provision for the administration of estates in certain counties dependent upon the existence of certain circumstances as therein related. This section is not one of jurisdiction but one of venue.”

The general rule in most jurisdictions is that a will of a nonresident decedent may be admitted to probate if the decedent had property within the state. 95 CJS, Wills, § 352. See In re Estrem’s Estate, 16 Cal2d 563, 107 P2d 36 (1940), where the Supreme Court of California stated this rule is based upon the fact that “. . . every state has plenary power with respect to the administration and disposition of all property of deceased persons found within the jurisdiction.” (At page 38.) Accord, In re Holden’s Estate, 110 Vt 60, 1 A2d 721 (1938).

Illinois decisions are in accord with the rule that a nonresident decedent’s will may be probated if he has left property, real or personal within the state. In re Nielsen’s Estate, 320 Ill App 655, 52 NE2d 44 (1943); In re Kane’s Estate, 30 Ill App2d 470, 175 NE2d 290 (1961). Plaintiff cites Davis v. Upson, 230 Ill 327, 82 NE 824 (1907) in support of its proposition that the Circuit Court of Cook County did not have jurisdiction in the instant case. However, in that case the court held that since decedent had no property in Illinois, Illinois was without jurisdiction to probate the will. We hold that any amount of property located in Illinois capable of distribution under the will is sufficient to confer jurisdiction upon our courts to admit a will to probate.

In Count VI, plaintiff contends that the orders of the Circuit Court of Cook County were void because they were obtained through fraud and false pretenses.

In People v. Gilmore, 345 Ill 28, 177 NE 710 (1931), our Supreme Court stated as follows at page 46:

“Fraud includes anything calculated to deceive, whether it he a single act or a combination of circumstances, whether the suppression of truth or the suggestion of what is false, whether it be by direct falsehood or by innuendo, by speech or by silence, by word of mouth or by look or gesture .... If fraud be proved it vitiates all transactions touched by it, ...”

We recognize the rule that fraud must be pleaded with specificity, particularity and certainty. Horan v. Blowitz, 13 Ill2d 126, 148 NE2d 445 (1958), Hardy v. Bankers Life & Casualty Co., 19 Ill App2d 75, 153 NE2d 269 (1958). An allegation of fraud, conspiracy or collusion must show the facts on which the allegation is based, not mere conclusions of the pleader.

Under the foregoing criteria, we find that Count VI is sufficient to state a cause of action as to fraud. Plaintiff had charged that an estate has been opened in Illinois for a nonresident who had no property in Illinois. In support of that contention, plaintiff has set forth that one of decedent’s daughters made an affidavit that her mother was a resident of Wisconsin at the time of her death; that the final account filed in Wisconsin stated that decedent had no tangible personal property outside Wisconsin; that counsel of record in the Wisconsin proceedings wrote that decedent had no estate in Illinois; that a public administrator in Wisconsin wrote that of his own knowledge decedent was a resident of Wisconsin; that the petition for letters testamentary gave a false address for the decedent; and that the inventory filed in the Circuit Court was false. We have stated that any amount of property located in Illinois capable of distribution under the will is sufficient to confer jurisdiction in Illinois, but if plaintiff is able to prove that decedent was a nonresident without any estate in Illinois, the orders of the Circuit Court would be void.

Whether plaintiff will be able to prove its charge of fraud is not for us to decide. We express no opinion as to its validity for in deciding the motion to dismiss the complaint we must accept as true the fact allegations of the complaint as well as reasonable inferences which can be drawn from those facts. Rhodes Pharmacal Co. v. Continental Can Co., 72 Ill App2d 362, 219 NE2d 726 (1966). We find these allegations sufficient to entitle plaintiff to the opportunity to be heard on its fraud count.

For the foregoing reasons, the order of the Circuit Court of Cook County striking and dismissing Counts I through V of plaintiff’s complaint is affirmed. The order striking and dismissing Count VI is reversed and this cause is remanded for further proceedings not inconsistent with this opinion.

Order affirmed in part and reversed in part, and cause remanded.

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


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie C. Poe, Defendant-Appellant.
    Gen. No. 52,181.
    First District, Second Division.
    April 8, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George C. Rantis and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

Willie C. Poe was found guilty, after a bench trial, of the charges of burglary, deviate sexual assault, and attempt rape. Judgment was entered upon the finding and he was sentenced to a term of not less than three, nor more than eight years in the penitentiary. Defendant appeals to this court on the grounds: (a) that the State did not prove him guilty beyond a reasonable doubt; (b) that the prosecutrix consented to the act of cunnilingus and therefore no offense of deviate sexual assault was committed; (c) that the evidence was insufficient to establish the offense of attempt rape.

Mrs. Herman Gibson, prosecutrix herein testified that she was awakened at 5:30 a. m. on the morning of October 11, 1966, by the presence of an intruder in the bedroom which she shared with her husband. She awakened her husband and informed him of the presence of the intruder. Mr. Gibson prepared to get out of bed in the darkened room when the beam from a flashlight was turned into his eyes and he was told, “Lay down --or I will kill all of you.” The intruder then ordered Mrs. Gibson to tie her husband’s hands with a belt, which she did. He then instructed Mr. Gibson to engage in intercourse with his wife so that he, the intruder, might watch. Mr. Gibson’s efforts failing, his feet were then bound with a sheet by Mrs. Gibson, at the direction of the intruder.

Again on command of the intruder, Mrs. Gibson slid to the edge of the bed and removed her nightgown from her privates and the intruder performed an act of cunnilingus upon her. Mrs. Gibson testified that after the intruder had finished the act of cunnilingus he rose and attempted to mount her, at which time she was able to ascertain that he was armed only with a screwdriver, as it struck against the flashlight when he moved. Upon this realization she vaulted out of bed, turned on the light, and informed her husband, who had by this time freed his hands, that her assailant had no gun. The assailant fled the room and out the back door followed by Mrs. Gibson and, after he had freed his feet, by Mr. Gibson. The prosecutrix further testified that she followed the assailant only to the bannister of the back stairs, but recognized him as the defendant, Willie C. Poe (who had attempted to date her and to whom she was related by marriage), at the time she turned on the light in the bedroom.

Mr. Gibson testified that after he freed himself he pursued the assailant down the stairs and down the street and that before the assailant eluded him and while he was under a streetlight he also recognized the assailant to be Willie C. Poe. He further testified that he later discovered that three dollars had been removed from his wallet.

Alberta Ciardi, defendant’s landlady, was called on his behalf and she testified that defendant rents one room of her apartment, a bedroom; that she is home most of the time, is a light sleeper and did not think it possible for anyone to enter or leave her apartment without her hearing them; that she can hear a key being inserted into the lock on the door to defendant’s room when he returns. She further testified that she heard defendant come home after work on the afternoon of October 10, 1966; that he took a bath and retired; that she did not hear him leave until between 6:15 and 6:45 on the morning of October 11, 1966. Her testimony further established that defendant’s room had an outside entrance so that he did not have to pass through any portion of the apartment which she occupied in order to enter or leave. She did not see the defendant leave his room on the morning of October 11.

The defendant took the stand on his own behalf and denied having ever been in the Gibson’s apartment. He also denied commission of the acts constituting the offense and affirmatively asserted that after returning to his room at approximately 4:30 p. m. on October 10, he bathed and retired and did not leave his room at Mrs. Ciardi’s until 6:15 a. m. on October 11, when he left for work. He also testified as to certain physical ailments which would render it impossible for him to have run as the assailant had, as described in the testimony of the prosecutrix and her husband. No expert medical testimony was presented with respect to these ailments.

Defendant’s first contention, that he was not proven guilty beyond a reasonable doubt, is couched in terms of probabilities, or rather improbabilities, with respect to the events of that morning as related by the prosecutrix and her husband. This argument is one which goes to the credibility of those witnesses. As was stated in the case of People v. White, 63 Ill App2d 105, 211 NE2d 9 (1965) at page 112:

The trial court, as it properly could, believed the testimony of certain witnesses and disbelieved the testimony of others. In a bench trial no citation of authority is needed to support the rule that the credibility of the witnesses is solely a question for the trial court and will not lightly be disturbed.

It is apparent that the court below in hearing the witnesses adjudged the credibility of each and after doing so believed the accounts of the prosecutrix and her husband. Their testimony, when believed, is sufficient to establish defendant’s guilt beyond a reasonable doubt.

Defendant’s first alternative argument is that no offense of deviate sexual assault was committed since the prosecutrix consented to the act of cunnilingus. He cites the committee comments to section 11-3 of chapter 38 of Ill Rev Stats, the section creating the offense of deviate sexual assault, wherein it is stated:

In describing the Criminal Act, the section uses the term “by force or threat of force, compels . . . Since this section is on the whole unique, there is no traditional terminology on which to rely, as there is in rape. . . . The phrase used in section 11-3 is intended to state generally the equivalent of the force requirement in rape.

The defendant does not argue that the use or threat of force was not shown, but that it was not such force or threat thereof which was the basis upon which the prosecutrix became involved in the act. Thus, defendant’s argument is one of consent to the act. The rule with respect to consent is that the victim must resist where she has the use of her faculties and physical powers, but useless or foolhardy acts, as where she is overcome by superior force, fear, or where resistance would endanger her life are not necessary. People v. Smith, 32 Ill2d 88, 203 NE2d 879 (1965). Here there was evidence that the lives of the prosecutrix and her husband were threatened by the assailant to compel the husband’s compliance with his demands, and it was reasonable for the prosecutrix, under this state of facts, to believe that such threat also extended to her. Further supporting a finding that the failure of the prosecutrix to engage in a struggle or some such other defensive tactics as were suggested by the defense both at trial and on appeal did not amount to consent, but was based upon fear, is found from the fact that when she discovered that the assailant was not armed with a gun she vaulted from the bed and turned on the light.

Finally defendant contends that there was not sufficient evidence to prove attempt rape. The record shows that the defendant, after having forced the prosecutrix to experience the act of cunnilingus, attempted to mount her. That this act constitutes an essential step toward the commission of the offense of rape cannot he denied. The acts of defendant already having been found to be against the will of the prosecutrix and the threat of force established, he could be, and was, properly found guilty of the offense of attempt.

The judgment must be affirmed.

Judgment affirmed.

BURKE and McCORMICK, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Norman Jefferson, Defendant-Appellant.
    Gen. No. 52,248.
    First District, Second Division.
    April 8, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Loggins, Defendant-Appellant.
    Gen. No. 52,251.
    First District, Second Division.
    April 8,1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph J. Neary, Defendant-Appellant.
    Gen. No. 53,085.
    First District, Second Division.
    April 8,1969.

      Bernard B. Brody and William J. Nellis, of Chicago (William J. Nellis, of counsel), for appellant; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE BURKE.

Not to be published in full.


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Stanley Lucas, Defendant-Appellant.
    Gen. No. 53,289.
    First District, Second Division.
    April 8, 1969.

      Sherman, Schachtman & Stein, of Chicago (Jack G. Stein and Albert Brooks Friedman, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

A four-count indictment charging gambling was returned against the defendant. Counts I, III and IV were dismissed. The case was tried before a judge without a jury and the defendant was found guilty of gambling under Count II of the indictment. The statute under which Count II was brought provides:

[HI Rev Stats 1965, c 38, § 28-1 (a) (5).] A person commits gambling when he knowingly owns or possesses any book, instrument or apparatus by means of which bets or wagers have been, or are, recorded or registered; . . .

The defendant was arrested by the Chicago Police Department on May 25, 1966, in a store at 1462 West Madison Street, Chicago. The police had a search warrant for the premises and broke down the front door. As they were breaking the glass door with a sledge hammer they saw the defendant run into a telephone booth 12 or 15 feet from the door. The defendant was arrested coming out of the booth.

A detective went into the booth and took a piece of paper from behind the telephone. The paper contained handwritten figures and words. Another such slip of paper with handwriting was recovered, together with a scratch sheet, from the rear portion of the store. At the same time the police apprehended David Tropstein who was in the rear of the store, and with whom this court has no further concern.

One of the State’s witnesses was Zelma Stegel, the owner of the premises on the date in question. In her testimony she stated that prior to May 25,1966, the rent on the store was paid by a man named Frank, whose last name she did not know; that the rent was also paid by Louis Garelli, by John Jackson (now deceased), and by Steve (Stanley Lucas, defendant). She testified that there was no lease on the store and that she did not remember how many years ago Steve gave her rent “but it wasn’t last year.”

Police Officer Roger Sullivan of the Gambling Unit testified that the slips of paper recovered from the telephone booth and from the rear of the store were records of bets. He stated that when he and his partners went to the store they knocked on the door, announced they were police officers and had a search warrant, and asked that the door be opened. They saw a man (the defendant) running to the telephone booth in the store, and they then used force to gain entrance. Officer Sullivan said: “I ran to the phone booth and stopped Mr. Lucas ... I observed Detective Steffan search the phone booth and he recovered a slip of paper with writing on it from the back of the phone.” This paper was introduced into evidence as People’s Exhibit 2. Officer Sullivan described the evidence as follows:

“People’s Exhibit 2 for identification in the upper left hand corner has a 1 NY-7, and a dash 1 with a double X behind it. The 1 would be the first race. The NY would be New York, and the 7 would be the horse that is being played in this race, the number of the horse. The first 1 would be a dollar bet, a bet to win, a dollar to win.
“The second notation on the People’s Exhibit 2 for identification is the second race at New York, a $3.00—the third horse, with a 1 win bet plus there is a line drawn to include both bets with a 2D. This 2 would be $2.00 on the Daily Double. And on the corner of this little portion of paper, where it has been lined out, there is a 4, meaning a $4.00 bet, for the $4.00 that he would have bet.”

Officer Sullivan further testified that “Louis Garelli came into the store with some detective, looked at the two defendants we had, Mr. Tropstein and Mr. Lucas, and he asked him, he said, ‘What happened, Steve?’ And at that time, he says, T don’t know what it was, Louis, they broke the door.’ When he said ‘Steve’ he was looking at Mr. Lucas.” Officer Sullivan testified that when they asked the defendant about the exhibit he denied any knowledge of it.

The defendant testified in his own behalf that on May 25, 1966, he was cleaning up the premises at 1462 West Madison and he was arrested. He was putting the chair on top of the table “and all of a sudden the front door was busted in and glass was flying all over the place, and I run in the telephone booth to get away from the glass. As soon as it was all over, I came out.” He also testified that he never saw People’s Exhibit 2 before, nor did he write on it; that he did not keep any books or records to record gambling bets or wagers of any kind. He stated that the telephone booth was public and lots of people used it; that Tropstein was waiting for him and they were supposed to go to the racetrack together.

There is also testimony in the record before us that the store premises were used on May 17, 1966, as a “polling place and registration place.” There is no indication in the record as to whether the races referred to in Exhibit 2 were before or after that date.

In this court the defendant contends that the State failed to prove him guilty beyond reasonable doubt of the possession of gambling records. In People v. Jackson, 23 Ill2d 360, 178 NE2d 320, a case of an indictment for unlawful possession of narcotics, the court held that the narcotics were not found in an area which was in the defendant’s exclusive possession, although he had access to it. The court said at page 365:

“The State’s minimum burden was to show that the defendant has exercised some actual or potential dominion over the narcotics. . . . This is a burden which clearly has not been carried on the facts presented.”

The judgment of the Criminal Court was reversed.

The fact of possession must be shown beyond a reasonable doubt. It is also the law that where conditions may be explained on a hypothesis of innocence, the courts must accept that explanation. People v. Gregor, 359 Ill 402, 194 NE 550.

In People v. Pugh, 36 Ill2d 435, 223 NE2d 115, a case involving unlawful possession of narcotic drugs, the defendant was found in an apartment for which the police had a search warrant. The complaint charged that a purchase of heroin had been made from one Patricia Plunkett in that apartment and that she had more heroin and cocaine in her possession. A search of the apartment disclosed that the molding in the bedroom had been hinged and in a compartment behind the molding the officers found, among other things, several packages of narcotics. The defendant testified he had been in the apartment about six hours before he was arrested; that he did not live there, and that he had no knowledge of the narcotics in the apartment. He stated he knew that Patrida Plunkett also went under the name of Patrida Davis. In its opinion the court said it had held that “where narcotics are found on the premises under the control of defendant, this fact, in and of itself, gives rise to an inference of knowledge and possession by him which may be sufficient to sustain a conviction for unlawful possession of narcotics, absent other facts and circumstances which might leave in the mind of the jury, or of the court where a jury is waived, a reasonable doubt as to his guilt.” (Page 436.) There was no evidence that defendant rented the apartment, nor were any of his personal effects found there. In reversing the judgment the court said at page 438: “We think that the evidence, viewed as a whole, fails to support the conclusion, beyond a reasonable doubt, that the apartment was under defendant’s control. It cannot be inferred, therefore, that the narcotics found there were in his constructive possession.”

In People v. Evans, 72 Ill App2d 146, 218 NE2d 781, the court held, relying on People v. Jackson, 23 Ill2d 360, 178 NE2d 320, that the defendant was not proved guilty beyond a reasonable doubt of the crime of unlawful possession of narcotic drugs. The court said at page 149: “In this case, the narcotics were found secreted under a public bar. There is no evidence as to how long the packages had been there. Clearly, they could have been put there by anyone at any time.”

In the case before us there was no proof whatsoever that the defendant ever had possession of People’s Exhibit 2, nor was there any evidence that he ever had any possession—exclusive or otherwise—of the premises in question. The judgment of the Circuit Court is reversed.

Reversed.

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


text:
    Otto Sorini, Petitioner-Appellant, v. Louise Klein, et al., Respondents-Appellees.
    Gen. No. 51,773.
    First District, Fourth Division.
    April 9, 1969.
    Adamowski, Newey & Riley, of Chicago (Francis X. Riley, of counsel), for appellant.

      Willard J. Lassers, Alex Elson, Aaron S. Wolff, Elson, Lassers and Wolff, of Chicago (Herbert Lesser, of counsel) , for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken from an order entered by the Circuit Court of Cook County on May 19, 1964, directing that a tax deed to certain real estate located in Cook County issue to the defendants. The appeal is taken pursuant to section 72 of the Civil Practice Act (Ill Rev Stats 1963, cllO, §72).

On November 25, 1959, Otto Sorini (hereafter referred to as plaintiff) obtained title to the subject real estate through a conveyance executed by Sarah W. Carroll. The precise interest which plaintiff had in the property is not completely clear. Although only his name appears in the text of the deed, according to Frank S. Cacciatore, real estate broker, who sold the subject property for Sarah Carroll, the plaintiff and Lester Trilla were co-owners.

At no time from the date he acquired the property until the present time did the plaintiff ever pay real estate taxes on the property or list his name and address as the owner of record with the County Treasurer, or leave any indication of his ownership on the property itself. Rather, he permitted the name of his conveyor— Sarah Carroll—to remain on the books as the official holder of title. Accordingly, the real estate taxes were not paid, and on May 5, 1961, subject property was sold to Richard Davis at the annual tax sale. In conformance with the law, the period within which the plaintiff could redeem the property expired on May 5,1964.

Approximately one year before the expiration date, the J & G Construction Company, a corporation, began purchasing lots in the block where the subject property is located. As a part of this land purchase program they sought to find the owner of the subject property. Since the deed directed that after recording it should be mailed to a Mr. Frank Cacciatore, thereafter a J & G Construction Company employee, Raymond Ryan, inquired by mail concerning Cacciatore’s interest in the property. Ryan testified that on January 17, 1963, he had a telephone response from Cacciatore, advising that his client, Sorini (plaintiff), owned the property. During the conversation Ryan offered to purchase the property, but Cacciatore said the offer was too low. Therefore, according to standard practice of J & G Construction Company, Ryan opened a file for the subject property and designated it as “8468 Sorini.” This file contained all the documents relating to the subject property, and had notations on the file jacket concerning telephone calls and other matters, according to the customary business practice to make such notations on or about the day they purported to have been made.

Ryan left the employ of J & G Construction Company in 1963, and shortly after he left, his work was taken over by Timothy O’Grady. The record shows that O’Grady called Cacciatore no less than four times, offering to purchase the subject property; the first offer was made on June 28,1963. At that time O’Grady informed Cacciatore that the property had been sold to a Richard Davis at a tax sale. Some time later O’Grady met with Cacciatore and asked him if he had informed his client, Sorini, concerning the tax sale information O’Grady had given in their previous conversation. Cacciatore said he had, but “could not understand why the man [Sorini] did not take care of it and redeem.”

In his testimony Cacciatore denied knowing Ryan; did not recall knowing O’Grady or having any conversations with him; and did not recall being advised that the subject property had been sold in a tax sale. The trial court, however, chose to accept the testimony of Ryan and O’Grady as true and correct, and stated specifically:

“Then there was a face to face meeting between some of these witnesses. Now, these witnesses made definite statements, not only from their memory, but also from notes that were indicated, that it was indicated were made at the time the meetings took place. So that rather than vague denials the Court certainly has to depend upon definite statements made from notes or records at that time.”

On January 10, 1964, Richard Davis sold the tax sale certificate to Louise Klein, a nominee for J & G Construction Company, after which J & G renewed their efforts to find Sorini. Near the termination of the redemption period it became necessary for the defendants to comply with the statute with respect to notice. (Ill Rev Stats 1963, c 120, § 744.) It was necessary for defendants to serve, or cause to be served, notice of such purchase “not less than three months prior to the date when the time of redemption . . . shall expire, upon the following persons: upon occupants . . . ; upon the person in whose name the real estate was last assessed for general taxes . . . ; and upon the owners of, or parties interested in such real estate, including trustees and mortgagees of record, if they can upon diligent inquiry be found in the county.” If the owners cannot be found, the statute requires notice by publication.

Herbert Lesser, an attorney, was retained by defendants for the purpose of procuring the tax deed. He testified regarding the search which he conducted for the plaintiff in compliance with the “diligent inquiry” requirement of the law. He looked in the Chicago telephone directory for the year 1959 and also the year 1964 to see if there was a listing for Otto Sorini, but found none. He testified that he devoted most of his attention then to the Chicago directory because Sorini was listed on the deed as a resident of the City; however, he did examine the 1959 suburban directories, but found no Otto Sorini. He found two or three Sorinis in the Chicago directory whom he called, and none of these knew the plaintiff. He found several Sorinis in a western suburban directory; he compared the listings for 1959 and 1964 and found no Otto Sorini. From his findings he concluded the plaintiff had not moved to a suburban area. Lesser, however, did not inquire of the listings in the western suburban directory—five or six people, two of whom knew the plaintiff—as to his whereabouts.

Lesser stated that he then had a telephone conversation with Cacciatore, “either in September or October, 1963”; that he identified himself as an attorney and that he wished to know the whereabouts of Otto Sorini; that Cacciatore said, “I am sorry, I refuse to give you that information.” Lesser told him it was a tax deed proceeding and that it was necessary for him to serve Otto Sorini, but Cacciatore still refused to supply the information.

On January 22, 1964, a petition for a tax deed was filed, and on May 7, 1964, Lesser was examined by an assistant State’s Attorney regarding the inquiry he had made concerning Otto Sorini. On May 19, 1964, the court ordered that a tax deed issue to the defendant. No motion to vacate this order was filed. Instead, plaintiff elected to take an appeal from the order of May 19. He did not process that appeal, however, and notice of appeal was subsequently dismissed by the trial court. The plaintiff took no further action to obtain relief until October 19, 1964, when he filed suit to set aside the clerk’s deed on the ground that it had been procured by fraud. The plaintiff later converted that action into a section 72 petition attacking the validity of the May 19 decree.

The statute respecting tax deeds as revised in 1951 provides:

“Tax deeds issued pursuant to this section shall be incontestable except by appeal from the order of the county court directing the county clerk to issue the tax deed. This section shall be liberally construed so that tax deeds herein provided for shall convey merchantable title.” (Ill Rev Stats 1963, c 120, § 747.)

This section was in force at the time the tax deed was issued in the instant case. On May 19, 1964, the court ordered that the tax deed issue to the defendant. No appeal was perfected by plaintiff from that order of the court. Hence, he could raise the question as to whether or not the tax deed was valid only by proceeding under section 72 of the Civil Practice Act, which authorizes relief generally from judgments where fraud can be established.

The evidence was in sharp conflict. The trial court believed the testimony of the plaintiff’s witnesses and rejected that of the defendant’s witness, Frank Cacciatore. The questions before this court are whether the search made by the plaintiff concerning the owner of the property and the whereabouts of Sorini was sufficient to satisfy the requirements of the statute, and whether there was proof of fraud. In Dahlke v. Hawthorne, Lane & Co., 36 Ill2d 241, 222 NE2d 465, the court said at page 245: “Fraud, however, implies a wrongful intent—an act calculated to deceive, . . . .” The court further said, at page 246: “The failure to discover a particular fact does not, in and of itself, indicate a lack of diligent inquiry, . . . and neither is it a conclusive indication of fraud.”

In the instant case it is true that Herbert Lesser, as attorney for the petitioner, in the hearing before the State’s Attorney to determine whether the tax deed could properly be issued, filed an affidavit. In the affidavit Lesser stated: “I did examine the Chicago and Suburban Telephone Directories, and in the Chicago Directory, there are two or three Sorinis, whom I called and who denied being the Otto Sorini connected with this matter or denied being a relative of his or having any knowledge of his whereabouts.”

At the section 72 hearing, Lesser testified that he did not call every Sorini listed in the Chicago directory and stated he did not call any who were listed in the suburban directories for the reason that the deed of conveyance described Otto Sorini as being in Chicago. On the printed form of deed, after the space for the name of grantee and the legal description is printed “of the City of Chicago” and “situated in the City of Chicago”; the form as completed left the phrase “of the City of Chicago” stand after the name of Otto Sorini, but after the legal description “City of Chicago” was deleted and “Village of Oak Lawn” was typed in.

After the deed was made out to him plaintiff took no steps to identify himself as the owner of the property. He had the deed to the property mailed to the seller and permitted it to go on record showing him as a resident of the City of Chicago, when he was not.

While it is true that if Lesser had called all the names listed in the suburban directories, he could have located Sorini, his evidence is that he took such steps as appeared necessary to find Sorini. If the testimony on behalf of plaintiff was true (which was believed by the trial judge) that he had had various communications with Cacciatore and that Cacciatore refused to give him any information, there would be no indication that any fraud was involved.

In Zeve v. Levy, 37 Ill2d 404, 226 NE2d 620, the court lays down the rule that under the 1951 amendment to the Revenue Act, determination of compliance with statutory prerequisites for a tax deed are a judicial rather than an administrative matter; and that a court’s findings in a tax deed proceeding held pursuant to section 266 of the Act may be collaterally attacked only under section 72 of the Civil Practice Act, relief thereunder being available upon a showing of fraud. In Zeve the trial judge entered an order finding that the tax deed had been properly issued. The case was reversed by the Appellate Court and appeal was taken from that decision to the

Supreme Court, which court set aside the holding of the Appellate Court and held that there was no fraud in the procurement of the deed. The court said at page 409:

“It is clear that petitioner’s failure to receive notice of the tax-deed proceeding does not, per se, entitle her to have the deed set aside. (Dahlke.) Nor does the fact that respondent’s agent could have made more thorough inquiry and a more diligent search than he did necessarily establish fraud on the part of respondent in the absence of proof of wrongful intent or a pattern of deception. (Dahlke.)” (Dahlke v. Hawthorne, Lane & Co., 36 Ill2d 241, 222 NE2d 465.)

In the case before us the plaintiff did not receive notice of the tax deed proceeding, but on the facts of this case and under the ruling in Zeve v. Levy, supra, this factor is not sufficient, on its own, to entitle plaintiff to have the deed set aside. It is also not enough to show that the defendant’s agent could have made a more thorough inquiry. Such factors do not “establish fraud on the part of respondent in the absence of proof of wrongful intent or a pattern of deception.”

Plaintiff contends that the evidence did establish a “wrongful intent or a pattern of deception.” Whether or not there was such proof was essentially a matter to be resolved by the trier of fact, and his finding cannot be set aside unless contrary to the manifest weight of the evidence. On the basis of the record here involved we cannot conclude that the findings of the trier of fact were against the manifest weight of the evidence.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Larry S. Bosveld, Defendant-Appellant.
    Gen. No. 52,615.
    First District, Fourth Division.
    April 9, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Larry S. Bosveld, was charged with the crime of murder. After a jury found him guilty of that crime, he was sentenced to the Illinois State Penitentiary for a term of not less than 14 nor more than 20 years. He appeals, contending that his oral confession to the police should be suppressed because he was not properly advised of his right to counsel, and secondly, because it was obtained under a promise of leniency.

Prior to trial, the court conducted a hearing on defendant’s motion to suppress the confession. A summary of the facts elicited at that hearing follows.

Sergeant Joseph DiLeonardi of the Chicago Police Department testified for the State that he arrested the defendant on August 8, 1966, in the vicinity of 1100 North Clark Street, Chicago. He told defendant that he was being arrested for investigation of a murder, informed him of his right to remain silent, that anything he stated would be used against him, that he had the right to obtain an attorney and that if he didn’t have the finances that one would be furnished. After defendant was taken to the police station, the officer again informed him of his rights, this time stating that he had a right to have counsel present. Defendant then told the officer what had occurred on the night of the murder. Officer Richard Bock, Roger Moses and Jesus Otero were in the squad car when he first informed defendant of his rights. There was no conversation about a mental institution and no promises were made to defendant in return for his statement.

Officer James McGreal of the Chicago Police Department testified for the State that he had a conversation with defendant shortly after the sergeant talked with him. McGreal first informed defendant of his right to remain silent, his right to have counsel and that if he could not afford an attorney one would be appointed. Defendant then gave an oral statement as to what had occurred, but refused to give a written statement.

Jesus Otero, a friend and former roommate of defendant, testified for defendant that he and Roger Moses were with the defendant at the time of his arrest. Sergeant DiLeonardi told Moses and him to leave the scene, and he did not hear the officer advise defendant of his constitutional rights. Later that afternoon he and Moses were taken to the police station and he was present during questioning of defendant by the police. He heard the police tell defendant that “they could put him through treatments for a year and a half and then—that would be the end of the case.” He did not remember whether any of the officers advised defendant of his constitutional rights at the police station. On cross-examination he remembered someone mentioning to defendant about his right to have an attorney, and that any statement made by him could be used against him.

Defendant, 22 years of age, testified that at the time of the arrest, the police sergeant did not state why he was under arrest, and did not inform him of his constitutional rights. He was not informed of those rights at the police station, but rather was promised by Di Leonardi that if he confessed he would be sent to a mental institution for a year and a half. On cross-examination defendant was asked to relate in detail just what promise was made by the police sergeant. Defendant replied “. . . I don’t remember word for word but I did, after Otero had talked to DiLeonardi, DiLeonardi just did promise me a year and a half if I would—I forget just how he did that, if I said I did that.” He then was persuaded to give a statement. Defendant had been a voluntary patient at a mental institution in Iowa for 90 days when he was 15 years of age.

The trial court denied the motion to suppress the confession, and a trial by jury ensued. At that trial Officer McGreal testified as to the confession made by defendant, but Sergeant DiLeonardi was not called as a witness. The State agrees that the admissibility of the testimony of Officer McGreal at trial concerning the oral confession depends upon the sufficiency of the warnings given by Sergeant DiLeonardi.

Defendant’s first contention is that his oral confession should be suppressed since he was not properly informed of his right to have counsel present during his interrogation. While denying that he received any warnings, he argues that, even accepting the State’s evidence concerning the constitutional warnings, the manner in which he was informed did not make him aware of his right to have the immediate presence of counsel.

In Miranda v. Arizona, 384 US 436 (1966), the United States Supreme Court held that a person must be made aware of his constitutional rights before interrogation by the police. Specifically he must be aware that he had the right to the presence of an attorney during any interrogation.

In Coyote v. United States, 380 F2d 305 (10th Cir 1967), in language appropriate to the case at bar, the court stated at page 308:

“Surely Miranda is not a ritual of words to be recited by rote according to didactic niceties. What Miranda does require is meaningful advice to the unlettered and unlearned in language which he can comprehend and on which he can knowingly act. We will not indulge semantical debates between counsel over the particular words used to inform an individual of his rights. The crucial test is whether the words in the context used, considering the age, background and intelligence of the individual being interrogated, impart a clear, understandable warning of all his rights.”

At the hearing on defendant’s motion to suppress the confession, Sergeant DiLeonardi, after testifying that he warned defendant of his rights including the right to obtain counsel at the scene of the arrest, went on to say that he had a further conversation with the defendant at the police station. When asked what he said, DiLeonardi made the following reply:

“I informed the defendant that he has a right to remain silent, that anything he states will be used against him, and that he is also entitled to have an attorney present, and that if he can’t afford an attorney we will furnish him one.” (Emphasis supplied.)

The sergeant then testified that defendant stated that he did not need an attorney and would tell his story without an attorney present. Defendant contends that as a result of the wording of the warning, he believed that he was entitled to have an attorney at trial but did not realize that he was entitled to have an attorney present at the interrogation. In the context that the warning was given, it clearly referred to an immediate interrogation. After being informed that he had the right to remain silent and that what he said would be used against him, he was informed that he had the right to have counsel present. Obviously the sergeant was discussing an interrogation which was about to begin. In addition, the sergeant further testified that defendant said that he did not need an attorney and he would tell his story. Unquestionably the defendant understood that he was entitled to have counsel present at that time.

The trial court found that the defendant understandingly waived his right to counsel after sufficient warnings of his rights. That determination by the trial court was proper.

Defendant also contends that his oral confession was inadmissible because it was obtained by a promise of leniency, arguing that it was secured as a result of the police sergeant’s promise that if he made a statement, he would be sent to a mental institution for a year and a half.

A confession obtained by a promise of leniency or encouragement of any benefit or favor made by police officers is not voluntary, and therefore not admissible. People v. Lego, 32 Ill2d 76, 203 NE2d 875 (1965). However the decision of the trial court on the issue of the voluntariness of a confession will not be disturbed unless manifestly against the evidence. People v. Myers, 35 Ill2d 311, 220 NE2d 297 (1966); People v. Kirk, 36 Ill2d 292, 222 NE2d 498 (1966).

The testimony of Sergeant DiLeonardi was in direct conflict with that of defendant and Jesus Otero regarding a promise of leniency. The trial court chose to believe the police officer. However the defendant argues that it is improbable and contrary to human experience that after being advised of his constitutional rights, a person would confess a murder to a police officer without urgings or promises from anyone. We believe that voluntary or freely-made confessions of guilt occur frequently, and constitute proper evidence of convincing character. We also believe that the trial court could properly find that the testimony of the police sergeant was more credible than that of defendant, particularly since the latter was so vague about the promise made by the police.

We find that the trial court committed no error in admitting the oral confession into evidence. Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jack Keathley, Defendant-Appellant.
    Gen. No. 52,643.
    First District, Fourth Division.
    April 9, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio Tisci and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was found guilty at a bench trial of the crime of robbery. Judgment was entered and a sentence of not less than one nor more than four years in the Illinois State Penitentiary was imposed. On appeal defendant’s sole contention is that he was not proven guilty of robbery beyond a reasonable doubt.

EVIDENCE

Testimony of Maxine Childress, the complaining witness:

She is 22 years old and unmarried. On September 12, 1966, she worked from 7:30 a. m. to 4:00 p. m. at her regular job at Bell & Howell. She then worked at her part-time job in a drugstore until 11:00 p. m. Immediately thereafter she went to the Star Club, a nearby tavern, to meet her brother. She was at the bar when the defendant came up to her and said, “Hi.” She did not respond and he returned to his game of pool. Defendant then approached her again and said, “Hi, how are you.” She did not reply; and he said, “Drink your drink and let’s go.” She said, “Where are we going ? ” but he did not anwer. At this point the bartender, Johnny, came over and started talking to the defendant, and she sneaked out of the bar.

The lighting conditions in the Star Club were very bright by the pool table where the defendant was playing pool. She got a good look at his face.

She went next door to the Red Rooster, another tavern. She knows the bartender there, Skeeter, but she did not get to talk to him because the defendant came up behind her, spilled her drink, and said, “Drink your g— d— drink and let’s go.” He kept repeating, “Let’s go.” She saw a “metal thing” on his arm. He took her by the arm and quickly walked her out of the tavern.

They went out into the street where she saw a police officer whom she knew, sitting in a police car. She started to speak to him and defendant told her to keep her mouth shut. They walked down Winthrop Avenue and as they approached the Delmar Hotel defendant grabbed her purse, took her by the head, and knocked her down. He had her purse and was holding her by the hair; he pulled her up from the concrete by the hair and into a gangway adjacent to the hotel. He hit her over the head with her purse; she pushed him and started to run. He grabbed her again, pulled her back into the gangway and threatened to cut off her head. She hit him, he pushed her, she pushed him back and then started to run. She ran into the Delmar Hotel and reported the incident.

The police were called and they found her shoes and bottom set of teeth in the gangway. They did not find her purse. She described her assailant as a “white man with black hair and a missing front tooth, about five-eleven or six feet, perhaps 180 pounds.” She was taken to Weiss Memorial Hospital where they treated her foot and removed a stone from her eye.

Six days later some policemen brought her some pictures. She picked out the defendant’s picture as the man who had attacked her. Several days later she identified the defendant in person at the police station.

Testimony of Detective William Alexander, called by the State:

He interviewed the complaining witness and got a description of her assailant. She said that he was wearing a metal device on his arm which was held on by gauze.

He arrested the defendant. At the time of arrest the defendant did not have a metal device on his arm.

Testimony of Jack Keathley, defendant:

He did not commit the crime of robbery against the complaining witness. He is not guilty of the crime.

He has never had a broken arm; he did not sustain any injury to his arm during the month of September. He did not wear a bandage during the month of September at any time.

He has been in the Star Club and the Red Rooster on previous occasions but did not see the complaining witness on the evening of September 12, 1966, or in the early morning hour of September 13,1966.

OPINION

The defense argues that the defendant was not proven guilty of robbery beyond a reasonable doubt. They argue that the complaining witness’s story is a complete fabrication and point out that there is no corroborating evidence even though ample support should have been available from the bartenders at the Star Club and the Red Rooster taverns. The defense argument severs into two basic points: (1) there is not sufficient evidence of the commission of a robbery; and (2) there is not sufficient evidence that the defendant committed the robbery.

The testimony of the complaining witness that her purse was taken by force is uncontradicted and we cannot say that her story is improbable or implausible. We hold that the evidence sufficiently establishes a robbery of the complaining witness.

There then remains the question of the identity of the robber. The complaining witness gave the police a description of her assailant; several days later she picked defendant’s picture from a series of pictures shown her; she later identified the defendant at the police station; and she also identified the defendant at the trial. It is well established that where the identification of an accused is at issue in a criminal case the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided that the witness is credible and viewed the accused under such circumstances as would permit a positive identification. People v. Brinkley, 33 Ill2d 403, 405-406, 211 NE2d 730. And where the court in a bench trial believes the witness to be positive and credible, a reviewing court will not reverse or substitute its own judgment even though the accused denies the charge. People v. Chambliss, 69 Ill App2d 459, 467-468, 217 NE2d 422. In the instant case the complaining witness had an excellent view of the accused at the well lit pool table in the Star Club and she had another opportunity to observe him at the Red Rooster.

Defendant denies any complicity in the crime and claims that he was not in either the Star Club or the Red Rooster on the night of the crime. His denial, however, is not sufficient to overcome the positive identification of the complaining witness. People v. Brinkley, 33 Ill2d 403, 211 NE2d 730; People v. Chambliss, 69 Ill App2d 459, 217 NE2d 422. Further, defendant offers no explanation of his whereabouts on the night in question. In essence he has offered a denial without an alibi. After examining the entire record we hold that there was sufficient evidence to convict the defendant of robbery beyond a reasonable doubt.

Affirmed.

ENGLISH and McNAMARA, JJ., concur.

       Robbery is defined in the Criminal Code, Ill Rev Stats 1965, c 38, § 18-1:
      § 18-1. Robbery.
      (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.


author: MR. PRESIDING JUSTICE SULLIVAN

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William James, Defendant-Appellant.
    Gen. No. 52,334.
    First District, Third Division.
    April 10, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (John E. Hughes and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE SULLIVAN

delivered the opinion of the court.

Defendant appeals from a judgment in a bench trial finding him guilty of the crime of robbery. He was sentenced to the Illiniois State Penitentiary for no less than two nor more than five years.

Two points are raised by the defendant. As to the first point, he argues that it was error to permit a police officer to testify over objection to the victim’s identification of the defendant in the police station. Under his second point, the defendant argues that he was not proven guilty beyond a reasonable doubt.

Defendant-appellant, William James, was jointly indicted with. Calvin Wyche on charges of robbing one Oliver Morey.

The evidence on behalf of the people showed that the victim, Oliver Morey, was employed as a doorman at 880 Lake Shore Drive in Chicago. On the evening of November 10, 1965, Mr. Morey was working and shortly before 8:00 p. m., he went to eat at a grill located at the corner of Erie and Clark Streets. While in the grill, his attention was directed to the defendant William James, who was engaged in a lengthy argument with the proprietor concerning his bill. Defendant James was in the grill until Mr. Morey finished his meal and James left the grill immediately before Mr. Morey left. Mr. Morey saw James cross the street and join another man, both of whom walked east along Erie Street. Mr. Morey testified that he proceeded east on the opposite side of Erie Street and, as he reached an intersecting alley, the two men ran across Erie Street to him. The man who was with the defendant James grabbed Mr, Morey around the neck and threw him to the pavement. After he was thrown to the pavement, the victim was on his back and was facing upward. He also saw and recognized the defendant at that time as the defendant was standing by his head. At the time of the holdup, he had $38 in his pocket. The defendant’s companion was Calvin Wyche. Wyche proceeded to search the victim’s lower pockets and also took his wristwatch, while the defendant James went through the pockets of Mr. Morey’s uniform jacket. Both men then turned and fled down the alley.

While the robbery was in progress, two Chicago police officers who were cruising on North Clark Street in a squad car noted what appeared to them to be a scuffle at the mouth of the alley just east of Erie Street and saw two men running north from the mouth of the alley. The squad car was traveling north on Clark Street and was only about fifty feet away from the mouth of the alley where the scuffle was taking place. The squad car then proceeded toward Huron and blocked off the alleyway where the defendant James was apprehended with Wyche. At that time, Wyche took off a watch and threw it over the squad car. A search was made of the men and nothing was found on James, the defendant. Both men were taken to the 18th District Police Station where the victim was waiting. The victim then pointed to both men and said something about a watch, later identifying the watch as being his. The victim had gone directly to the police station after the occurrence and arrived at the station within ten minutes.

The defendant testified that he had dinner at the Erie Grill and that when he finished, he started talking to Kenny, a man who worked there, for ten or fifteen minutes or longer. After leaving the grill, the defendant testified that he noticed there was a scuffle and he started toward the alley walking as fast as he could. The defendant testified that upon reaching the alley and seeing the scuffle, he started to run through the alley to get to his home, the back of which could be reached from the alley. He further testified that after he started running, he heard footsteps behind him and he ran to the next intersection and there the squad car had pulled up on the street at the end of the alley. The policemen then apprehended the defendant and Wyche. The defendant stated that it was possible that he could have seen Wyche prior to that evening but that he did not know him nor did he know where Wyche lived. The defendant stated that a watch was thrown near him while one of the officers was talking to Wyche.

The defendant’s first contention is that it was error to permit a police officer to testify over objection to the identification of the defendant by the victim in the police station. As heretofore mentioned, the victim was in the police station at the time the defendant and Wyehe were brought in by the police. Officer Rothas testified that at the police station the victim identified the defendant and Wyche and the victim’s watch. Officer Rothas in response to a question on direct examination said: “When we brought him (James) in, Mr. Morey pointed to both defendants and said . . . .” Defendant objected to this testimony as hearsay. The court then said that the witness could testify as to what he saw the witness do in the police station. Officer Rothas then proceeded to testify that he had held up the watch and Mr. Morey stated that was his watch. The testimony of Officer Rothas as to what Mr. Morey did by way of identifying James and what Morey said in identifying the watch was error (People v. Smith, 105 Ill App2d 8, 245 NE2d 23; People v. Reeves, 360 Ill 55, 195 NE 443, and People v. Wright, 65 Ill App2d 23, 212 NE2d 126). That evidence was, however, not harmful to the defendant because, in the instant case, the victim testified that he saw his watch at the police station and that the police officers who arrested the defendant brought the watch in at the same time the defendant was brought in. His testimony on the witness stand as to the identification of James was positive and convincing. The victim also testified that he arrived at the police station about five or ten minutes after the holdup and that the defendant was brought into the police station about fifteen or twenty minutes after the victim arrived. Apparently the victim went directly to the police station after the robbery and did not know that the defendant had been arrested. Mr. Morey testified that when the defendant was brought into the police station by the police officers, he saw him. The victim had observed the defendant for approximately 20 minutes in the restaurant before the holdup and also observed him running across the street prior to the robbery, and while lying on his back on the ground he saw the defendant standing above him while the defendant was going through his pockets.

In People v. Reeves, 360 Ill 55, 195 NE 443, a police officer was permitted to testify as to what the janitor of the building entered by the defendants said and did at the time of the showup at the Detective Bureau. The case involved an indictment for forcibly breaking and entering an office of a corporation with intent to commit larceny. While the court found that it was error to permit the officer to testify to the statements made and to the things done by the janitor by way of identification of the defendant, and that it was further amplified when the Assistant State’s Attorney referred to the evidence in his argument to the jury, nevertheless the court in that case refused to reverse on the ground that the competent evidence so overwhelmingly and thoroughly proved the defendant guilty beyond a reasonable doubt, that the jury could not conscientiously have arrived at any other verdict.

This court in People v. Smith, 105 Ill App2d 8, 245 NE2d 23, held that under the circumstances of that case, a police officer’s testimony that the robbery victim picked the defendant from a lineup was incompetent hearsay testimony but that it was not prejudicial to the defendant. In Smith, as in the case at bar, the victim also testified that she had identified the defendant at the police station, and this testimony was uncontradicted. This court stated that the incompetent testimony was not prejudicial since the police officer’s testimony “did not inject new evidence into the trial; it merely repeated what had already been proven by competent and undisputed testimony. People v. Sterling, 341 Ill 112, 173 NE 139 (1930).” Likewise, we are of the opinion that the errors relating to the identification testimony of Officer Rothas were harmless.

We will now proceed to discuss the next point raised by the defendant, namely whether the evidence presented at the trial was sufficient to support his robbery conviction beyond a reasonable doubt. The defendant argues that the showup of the defendant occurred while the defendant was unrepresented by counsel and that no attorney was present to protect the defendant from the basic unfairness to him that occurred there. The defendant in support of his argument cites United States v. Wade, 388 US 218 and Gilbert v. California, 388 US 263. Neither of these decisions indicate that a lineup must be held. They hold that when a lineup is held, the accused has a right to have counsel present. Neither Gilbert, supra, nor Wade, supra, is in point since those decisions are not retroactive and can have no application to the present case. In Stovall v. Denno, 388 US 293, the court held that these decisions had application only to identifications made after their date of decision, June 12, 1967. The identification here was made on the evening of November 10, 1965. There is no legal requirement that a suspect must be placed in a lineup in order that his identification by a witness may be considered proper. (People v. Boney, 28 Ill2d 505, 192 NE2d 920.) The question here is whether under all of the facts and circumstances of this case, the identification procedure employed was so unnecessarily suggestive and conducive to mistaken identification that the defendant was denied due process of law. On cross-examination of the victim, the following question was asked and answer given:

“Q. And the police told you that this was the man who robbed you ?
“A. No, the police didn’t tell me. I knew it myself, who robbed me. . . .”

There is no indication that anybody suggested to the victim that the defendant was one of the men who robbed him.

In People v. McIntosh, 82 Ill App2d 90, 227 NE2d 76, a suspect was identified without a lineup after the police had called the complaining witness and requested him to view someone whom they had in custody and who fit the description given by the witness. The defendant in that case argued that this procedure was so suggestive that it was violative of his rights. The court, at page 94, said the following:

“The factors influencing Mason’s identification are said to be the telephone call he received from the police that they had a suspect in custody who fitted the description he had given and his not viewing the defendant in a line-up. Any time the victim of a crime is asked to come to a police station to look over persons arrested, there is an unavoidable intimation that the police have arrested someone who they believe might be the perpetrator of the crime. The fact that there was no line-up does not fatally weaken the evidence of identification but bears only on the weight to be accorded that evidence . . . There is nothing in the record which would suggest that Mason was influenced or was susceptible to influence.”

In the instant case, no one told the victim that the police had someone in custody nor did anybody request him to identify the defendant to determine whether he was the robber. In the instant case the victim was already in the police station when the defendant was brought in and he recognized the defendant at that time.

The trial judge in this case determined in the exercise of his sound judicial discretion, the weight of the credibility to be given to each of the witnesses who testified. (People v. Williams, 12 Ill2d 80, 145 NE2d 29.) The court prior to pronouncing sentence said:

“I think the testimony of the complaining witness, Mr. Morey, I think was very accurate and very convincing. There were minor divergences in the testimony of Officer Rothas and other testimony by the complaining witness as to the south or north side of Erie, but this I consider very immaterial. The substance of the testimony of the two, I think, was very convincing. I think Mr. James’ testimony did credit to his imagination and his flexibility of thinking. It contains a degree of improbability, and I cannot find any reasonable doubt.”

From reading the record in this case, we agree with the summation made by the trial judge and it appears to us that the evidence was amply sufficient to support a finding of guilty beyond a reasonable doubt. Since this was a bench trial, the question of the credibility of the witness and the weight of the evidence were for the trial judge to determine. (People v. Najera, 75 Ill App2d 127, 221 NE2d 136; People v. White, 63 Ill App2d 105, 211 NE2d 9.) The trial judge having made this determination, it will not be disturbed by a court of review uxdess the evidence is so unconvincing and unreasonable or unsatisfactory as to leave in the minds of this court serious doubt of the defendant’s guilt. People v. Scott, 38 Ill2d 302, 231 NE2d 441; People v. Taylor, 95 Ill App2d 130, 237 NE2d 797; People v. Garrett, 82 Ill App2d 192, 226 NE2d 429.

We conclude therefore that no reversible error was committed at the trial of this defendant. The judgment of the court is accordingly affirmed.

Affirmed.

SCHWARTZ and DEMPSEY, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Ronald Edmonds and Larry J. Edmonds, Defendants-Appellants.
    Gen. Nos. 52,392, 52,393. (Consolidated.)
    First District, Second Division.
    April 15,1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellants; John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Gerald L. Rohrer, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE LYONS.

Not to be published in full.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Dade, Defendant-Appellant.
    Gen. No. 52,705.
    First District, Second Division.
    April 15, 1969.

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

delivered the opinion of the court.

Robert Dade was found guilty, following a bench trial, of the offense of sale of narcotic drugs. Judgment was entered on the finding and he was sentenced to a term of not less than ten, nor more than eleven years in the Illinois State Penitentiary. Defendant appeals on the ground that he was not proven guilty beyond a reasonable doubt.

On April 12, 1967, one Herbert Branch, alias Preston Dufauchard, a narcotics addict and police informer, was searched by Chicago police officers and found to be free of narcotics and money. He was given fifteen dollars in undusted, recorded currency by the officers for the purpose of participating in a controlled purchase of narcotics.

Branch testified that he had informed the police that he could purchase narcotics from a number of persons in the vicinity of 4300 South Prairie Avenue. He further testified that following his being searched and given the recorded money he was taken to the named area; that he sought out the defendant and found him in a pool hall; that after defendant agreed to sell narcotics to him, the accused took the money while they were in the pool hall; and that they left the poolroom together and walked around the corner to 4233 Prairie Avenue, where defendant had a room. Branch testified that the defendant asked him to wait outside and then entered the building alone, returning with the narcotics which he handed to the informer. He further testified that the pool hall was not crowded.

Three police officers testified. Officer Williams testified that after Branch left the police vehicle he, Williams, observed the informer as he entered the pool hall and then observed him leave the pool hall in the company of defendant and turn the corner at Forty-third Street and Prairie, at which point they were no longer in his view. Officer Nance testified that he remained in the police vehicle and that when the informer returned to the vehicle he gave Nance a tinfoil packet. (It was stipulated by the parties that this packet was the one which Officer Nance received from the informer, that it was delivered to the Chicago Crime Laboratory, where its contents were submitted to various chemical identity tests, the results of which showed the contents to be heroin.) Nance further testified that after receiving the packet he left the vehicle and joined the other officers pursuant to the arrest of defendant. On cross-examination Officer Nance testified that Branch was known as a special police employee; that he had given money to Branch: “I give him money for lunch and stuff like that,” and that the pool hall was crowded when he entered to arrest the defendant.

Officer Arnold testified that he saw Branch and Dade exit the pool hall and walk to a building at 4233 Prairie which Dade entered while Branch waited outside; that Dade reappeared shortly thereafter and the two men began to walk back in the direction from which they had come, later separating, with Dade returning to the pool hall and Branch to the police vehicle. Officer Arnold testified on cross-examination that he had also given money to the informer and that the pool hall was crowded when he entered.

None of the officers saw what transpired in the pool hall after Branch entered, nor did they observe any exchange of narcotics between Branch and Dade. Following his arrest, the defendant’s person and room were searched by the officers but no narcotics or recorded money were found. Dade had sixty-seven dollars in currency on his person at the time of his arrest. There was no “post sale” search of the informer.

Defendant took the stand on his own behalf and testified that he knew Branch and had “shot” narcotics with him on two occasions, the most recent being three days prior to his arrest. He further testified that the pool hall was crowded; that when Branch entered the pool hall he asked defendant if he could borrow a hypodermic needle and then proceeded to the rear of the poolroom. Upon his return the two left to procure the needle which Branch had requested. Dade explained that when Branch indicated that he would go along to secure the needle defendant asked him to remain outside because defendant did not want his landlady to suspect his use of narcotics and Branch had been there just three days previous at which time Branch and defendant “shot” narcotics together. Defendant denied selling narcotics to the informer or receiving money from him. He further testified that following his arrest Officer Arnold asked him to become an informer and told him that if he did so there would be no need to worry about going to jail as defendant could remain out on the street and work with the police. On rebuttal the prosecution called Officer Williams, rather than Officer Arnold, to rebut defendant’s testimony with respect to his being asked to become an informer.

Defendant asserts in this appeal that he was not proven guilty beyond a reasonable doubt because the conviction rests solely on the uncorroborated testimony of an addict-informer.

It is well established principle that the testimony of a narcotic addict is to be reviewed with great caution, since the fact of his addiction to narcotics has an important bearing on his credibility. People v. Crump, 5 Ill2d 251,125 NE2d 615 (1955); People v. Hamby, 6 Ill2d 559, 129 NE2d 746 (1955); People v. Faulkner, 12 Ill2d 175, 145 NE2d 632 (1957), cert denied, 355 US 965 (1958); People v. Boyd, 17 Ill2d 321, 161 NE2d 311 (1959); People v. Bazemore, 25 Ill2d 74, 182 NE2d 649 (1962).

In the present case the State concedes that there was no corroboration of the informer’s testimony with respect to the actual sale, but argues that the surrounding circumstances lend credibility to it. We cannot agree with this contention. Here both the person and room of defendant were searched and no narcotics were found. Even more importantly, the search failed to reveal the recorded funds allegedly used for the purchase and the informer was not searched subsequent to the alleged sale. Furthermore, the testimony of the informer as to the number of people in the pool hall differed from that of the two police officers who were questioned on the subject; two police officers testified that they had paid the informer; it was shown that at the time of his testimony in this case there was a possession of narcotics charge pending against the informer in preliminary hearing court which had been pending for a period in excess of four months. Further, he had “made” three cases for the police subsequent to his arrest on that charge.

We conclude that the uncorroborated testimony of Branch was not sufficient to prove defendant guilty beyond a reasonable doubt and that the surrounding circumstances serve more to detract from, rather than add to, his credibility. Therefore the judgment must be reversed.

Judgment reversed.

BURKE and McCORMICK, JJ., concur.