author: MR. JUSTICE DRUCKER

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Nelson, Defendant-Appellant.
    Gen. No. 52,873.
    First District, Fourth Division.
    July 8, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley 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 ap-pellee.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

Defendant was convicted after a jury trial of the offense of armed robbery. Judgment was entered and he was sentenced to a term of forty to eighty years. Defendant raises three points on appeal: (1) he was not proven guilty beyond a reasonable doubt; (2) the prosecution engaged in improper closing argument; and (3) his sentence was excessive.

Testimony of Herbert Goldberg, complaining witness, for the State:

He is the manager of the Time Car Wash located at 3122 West Touhy Avenue in Chicago. On May 2, 1966, he arrived at the car wash at 7:10 a. m. As he walked down the customer walkway, he was accosted by a man who came up behind him and grabbed him by the back of the neck. As he turned around he saw the man had a small caliber revolver which the man stuck to his temple. The gun was cocked. The man was wearing a towel mask with two burnt holes in it. As he looked around the man said, “Don’t turn around.” The man took him by the back of the coat over to the cashier’s cage in front of the safe. He failed to open the safe several times and each time he failed his assailant hit him on the right side of the face. This occurred four or five times. He started to bleed and “everything got very messy.” His assailant finally pulled the combination card out of his hand and said, “You don’t need this.” As he tried to open the safe a few more times his assailant told him, “I’m going to shoot you anyway.”

After he opened the safe the defendant said, “Get away” and took $1,100 in currency and several Standard Oil Credit Cards. Defendant then took him to a storeroom, slammed the door and told him to “Stay in there.” After he freed himself, he noticed that his car was missing and that a recently replaced window had been broken out and had fallen into the car wash. When the defendant struck him on the cheek, blood might have gotten on the defendant’s shoes or clothing. He definitely recognized the voice as that of Edward Nelson, the defendant. He was positive that the man who robbed him was the defendant. The defendant was an employee of Ms for three months. He characterized the defendant’s voice as a quiet monotone with a mumble. The voice he heard from behind the towel mask was the defendant’s. Defendant’s voice was not similar in character to most Negro voices. He had had many conversations before with the defendant.

He also recognized his assailant as being the defendant because of his unusual style of walk, which he described as very athletic. It was a loose, strutting walk which was not common. It was unique and very noticeable to him. He had never seen anyone else walk in the same manner. If he saw a thousand people there would not be another person who walked like the defendant. He had commented to the defendant about his style of walk many times.

When the police arrived, he described his assailant as six feet tall, 175 pounds, wearing a light gray coverall, a hat, gloves, and a white towel over his face as a mask. He told the police during the morning that he thought his assailant was Edward Nelson.

He knew that the defendant had a prior criminal record two months before the armed robbery, but he still continued to employ him. He did not know what specific crimes the defendant had committed. He has hired men with criminal records to work at the car wash.

He has a speech disorder and he has attended the School of Speech at Northwestern University, as well as a speech school in New York for his own improvement.

Testimony of Herman Novick, for the State:

He is a police officer with the Chicago Police Department. On May 2, 1966, at 7:30 a. m., he received a call of a robbery at 3122 West Touhy. When he first arrived, he saw the manager of the car wash holding his cheek which was swelling and had abrasions. He spoke to Mr. Goldberg, who told him that he had been struck by a man with a gun. Goldberg described his assailant as a male, possibly Negro, about six feet tall, weighing 165 pounds. His assailant was wearing a towel with burnt holes in it over his head. Mr. Goldberg acted very nervous and he did not mention Edward Nelson’s name during this conversation which lasted about forty-five minutes.

Upon an inspection of the car wash, he noticed that a newly puttied window had been broken. There were smears of putty on the window sill. He also found a white towel with two burnt holes in it on the floor near the exit of the car wash. He turned the towel over to a police evidence technician.

He had another conversation with Mr. Goldberg after Mr. Goldberg was taken to the hospital.

Testimony of William Higgins, for the State:

He is a police officer with the Chicago Police Department. On May 2, 1966, at 8:45 a. m., he went to the Bethesda Hospital to interview Mr. Goldberg. Mr. Goldberg told Mm that he thought the man who robbed Mm sounded like Edward Nelson, but he was not sure. After the interview he proceeded to 3122 West Touhy. Upon an inspection of the premises he found a broken window with glass on the sill and inside on the drive used in the car wash. The putty used to seal the window was fresh and pliable. He also inspected the cashier’s cage, where he found what appeared to be bloodstains on the wall and floor.

He had a conversation with a Mr. Stone at the car wash and obtained the address of Edward Nelson from him. En route to this address he received a call to return to the car wash. When he returned, he observed a man who fit the description of Edward Nelson. He explained to Nelson that there had been a charge made against him and he asked Nelson if he would voluntarily accompany him to the police station. The defendant agreed to go with him.

As the defendant was changing his clothes, he noticed several whitish, chalky color stains on the front of the defendant’s pants and shirt. In his opinion, these stains were of the same color as the putty on the window. There were stains on the pants from the waist to the knees and on the shirt close to the waist. There were also stains on the sole of one of the defendant’s shoes. At this time he placed the defendant under arrest and packaged the pants and shirt in a bag for the crime laboratory.

At the police station he noticed that there were red stains on defendant’s handkerchief and on his topcoat. They appeared to be bloodstains. He sent these articles to the crime laboratory.

Testimony of Peter Heinrich, for the State:

He is a police evidence technician with the Chicago Police Department. On May 2, 1966, he received an assignment to make an investigation of the premises located at 3122 West Touhy. He photographed the entire scene and gathered glass standards from the floor of the car wash by the broken window. He also gathered fresh putty from the window and the white towel mask. The broken window was forty-eight inches or chest height off of the ground.

Testimony of Arthur Paholke, for the State:

He is a technician with the Chicago Police Department’s Crime Laboratory. In his opinion, entry into the car wash was through a window on the far northwest corner of the building which had been broken.

Testimony of Marian Caporusso, for the State:

She is a microanalyst for the Chicago Police Department. She examined and tested the towel mask and the handkerchiefs and topcoat of the defendant. She found the reddish-brown stains to be human blood. A sample of the blood taken from the floor of the scene of the robbery was contaminated, which precluded an accurate determination of the blood group. There is no accurate method to determine the age of a bloodstain in a dry condition. She did not know if the blood on the articles of clothing was Mr. Goldberg’s or the defendant’s.

Testimony of Joseph Zak, for the State:

He was formerly a police chemist with the Chicago Police Department’s Crime Laboratory. Upon receiving the physical evidence of the glass standards, defendant’s clothes, and the putty samples, he examined and tested them. He vacuumed the defendant’s trousers and shirt and found that they contained glass particles and putty. He then conducted an examination with regard to the optical properties and refractive index of the glass. In his opinion, the glass particles from the clothes and the glass standards taken from the window indicated a common origin, since the refractive index is a unique property which can be measured accurately. The putty taken from the smudges on the pants was similar in chemical properties to the putty submitted from the window sill.

The defendant introduced no evidence in his own behalf and his motion for a directed verdict was denied.

Opinion

Defendant contends that he was not proven guilty beyond a reasonable doubt. He argues that his identification by voice and walk was vague, doubtful and uncertain and that the introduction of the scientific evidence cannot be considered as corroborative of the commission of the robbery. In People v. Finney, 88 Ill App 2d 204, 208, 232 NE2d 247, the court in discussing the propriety of voice identification testimony stated:

It has been held by both the Appellate Court and the Supreme Court that a defendant may properly be identified by his voice. Also see 2 Wigmore, Evidence (3rd ed) § 660; 1 Wharton, Criminal Evidence (12th ed) § 183. In Ogden v. People, 134 Ill 599, 25 NE 755, the court said at page 601:
“The statement by the witnesses for the prosecution of a fact which they ascertained through the sense of hearing was not the statement of mere matter of opinion, but the statement of a conclusion reached directly and primarily from an operation of the sense of hearing. A witness can learn and know facts by and through the exercise of his perceptive faculties, — his five senses, — and such facts he may state. (City of Aurora v. Hillman, 90 Ill 61.) It was a question of fact for the determination of the jury whether or not the testimony in question sufficiently established the matter of identification, . . . .”
In People v. Barry, 371 Ill 463, 21 NE2d 561, it was held that the manner of identifying a defendant goes only to the weight of the identification evidence, and People v. Nichols, 378 Ill 487, 38 NE 2d 766, is in accord. The same rule is laid down in People v. Thompson, 406 Ill 555, 94 NE2d 349. In the instant case the identification of the defendant by his voice was proper.

In the instant case, Mr. Goldberg heard the defendant speak several times in the course of the robbery and he definitely recognized the voice as that of the defendant. He had hired the defendant three months prior to the robbery and they had had many conversations during this period of time. Mr. Goldberg fully described the defendant’s voice and noted that his assailant’s voice was that of the defendant. We find that the identification of the defendant by his voice was proper.

In addition to the voice identification, Mr. Goldberg thoroughly described the defendant’s walk. He testified that he had never seen anyone walk in exactly the same manner, and that his assailant had the same walk as one of his employees, Edward Nelson, the defendant. As the defendant’s employer for three months, Mr. Goldberg had ample opportunity to notice and observe the defendant’s characteristic walk and had on several occasions commented about it. Defendant argues that Mr. Goldberg had no opportunity to observe his assailant’s walk during the robbery since the assailant was behind him holding him by the back of the neck. However, we believe that the jury could reasonably infer that from the walking which took place during the robbery Mr. Goldberg had an opportunity to notice and observe his assailant’s walk. This was one more factor for the determination of the jury as to the sufficiency of defendant’s identification.

We also note that Mr. Goldberg described his assailant as six feet tall, 165 to 175 pounds, wearing a light gray coverall, a hat, gloves, and a white towel over his face for a mask. Furthermore, he told the police during the morning that he thought his assailant was Edward Nelson, the defendant. The fact that he did not tell this to the first policeman who questioned him was merely a matter for the jury’s consideration.

In People v. Ruth, 113 Ill App2d 28, 33, 251 NE2d 744, this court stated:

[T]he adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the jury, sitting as triers of fact with the superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor while on the witness stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963); People v. Evans, 25 Ill2d 194, 184 NE2d 836 (1962).

We find that the identification of the defendant was clear, convincing and certain.

Defendant also argues that the introduction of the scientific evidence cannot be considered as corroborative of his commission of the robbery. However, an examination of the optical properties and refractive index of the glass standards found on defendant’s clothing and those taken from the broken window at the car wash indicated that they came from a common origin and that their refractive indices were “similar.” The use of the word “similar” does not detract from the reliability of this identification but merely indicates the limitations of the instruments used to measure these qualities.

There was also testimony that the putty taken from the smudges on defendant’s pants was similar in chemical properties to the putty obtained from the window sill, and that the reddish-brown stains found on the towel mask and defendant’s handkerchiefs and topcoat were human blood. Defendant claims that the bloodstains found on his clothes could have been months old and could have come from almost anywhere since there was no showing as to age and no attempt was made to compare these bloodstains with Mr. Goldberg’s blood type. However, the absence of a chemical analysis affects only the probative value and not the admissibility of this expert testimony. People v. Bey, 42 Ill2d 139, 246 NE2d 287. See also People v. Green, 28 Ill2d 286, 192 NE2d 398 and People v. Jennings, 252 Ill 534, 96 NE 1077.

We believe that the scientific evidence was properly submitted to the jury for their determination and that this evidence was corroborative of the commission of the armed robbery by the defendant.

The credibility of the witnesses and the weight to be given to their testimony are for the jury to decide. The verdict of a jury will not be disturbed unless it is so unsatisfactory as to leave a reasonable doubt as to defendant’s guilt. People v. Hampton, 44 Ill2d 41, 253 NE2d 385, and cases there cited; People v. Howard, 121 Ill App2d 87, 257 NE2d 278. We find that the evidence was not so unsatisfactory as to cause a reasonable doubt of guilt.

Defendant also contends that the prosecution engaged in improper closing argument. Defendant cites one instance of such improper argument. However, during the trial the defendant made no objection to the prosecutor’s remark. Therefore, the alleged error, if any, was waived. People v. Hampton, 44 Ill2d 41, 253 NE2d 385.

Defendant next argues that the sentence imposed by the trial court of forty to eighty years was excessive. This court is fully aware of the Supreme Court’s admonition in People v. Taylor, 33 Ill2d 417, 211 NE2d 673 that the power granted to courts of review by Supreme Court Rule 615 to reduce sentences is to be applied with considerable caution and circumspection. However, we are also aware of the constitutional provision which requires that all penalties shall be proportional to the nature of the offense. Ill Const art 2, § 11. In our opinion, the record does not warrant the imposition of a forty to eighty-year sentence. Accordingly the defendant’s sentence is modified by reduction to a minimum of twelve and a maximum of twenty years, and as so modified the judgment and sentence are affirmed.

Affirmed as modified.

ENGLISH and LEIGHTON, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE LEIGHTON

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert Wooley, Defendant-Appellant.
    Gen. No. 53,831.
    First District, Fourth Division.
    July 8, 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 Arthur Belkind, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Defendant and a Lawrence Martin were jointly indicted for armed robbery. In a separate jury trial, defendant was convicted. After overruling oral post-trial motions and conducting a hearing in aggravation and mitigation, the court sentenced him to serve not less than eight nor more than fifteen years.

From the relevant and material evidence it appears that on June 12, 1969, at about 2:20 p. m., Milton Goldman and his partner, Ervin Wise, were in their store at 5117 Ingleside Avenue, Chicago. With them were Goldman’s father-in-law, Sidney Miller, a stock boy and three customers. Goldman heard Miller say, “Oh my gosh, they’re back again.” Looking up, Goldman saw two men in the store. They were unmasked; neither made any attempt to hide his identity. One man had a shotgun. He threatened Miller and ordered Goldman to the back, behind a meat case. He demanded of Goldman, “Where is the money?” Goldman told the man that money was in the cash register. The man compelled Goldman to turn around, searched him and took his wallet which contained between $15 and $20. The man returned the wallet to Goldman.

The two men were in the store a period of about twenty mintues. During the entire time, the man with the shotgun was in Goldman’s presence. With the exception of the few minutes when he was turned around while his wallet was taken, Goldman looked at the man with the shotgun. There was conversation between them, with Goldman looking at the gunman’s face, observing the man’s dress, his appearance and his general demeanor. During this time the gunman’s companion went through the cash register and “cleaned out everything,” a sum of about $225. Sidney Miller saw both men and had the opportunity to observe them when they entered the store and as they left.

Soon after that, Goldman called the police. They arrived. He and Sidney Miller gave them a description of the two men. That evening and the next day, Goldman went to the police station where he “looked at hundreds ... of photographs.” He was not able to recognize anyone. Thereafter, two or three times each week for the next month, police officers came to Goldman’s store with photographs, some sixty or seventy in all. He was not able to recognize the robbers from any of these. July 13 or 14 two police officers brought Goldman three photographs. They told him to look at them carefully. Goldman did and then picked out one that was defendant’s picture.

On July 17, 1969, at about 11:00 a. m., while defendant was in an elevator at 1121 South State Street, he was arrested by Chicago policemen. After being warned of his constitutional rights, defendant gave the police information concerning Lawrence Martin, his part in the robbery and the whereabouts of guns that were hidden in two buildings. Martin was arrested; the guns were found, including a shotgun introduced in evidence as the weapon used in the robbery.

Sometime during July 17, Goldman received a telephone call to come to the police station. At about 8:00 p. m. he and Ervin Wise went to the station. Goldman entered a room in which there were between six to eight young Negro males between the ages of 16 and 20. “I spotted this fellow as I walked in before I talked to anybody.” A police officer in charge told the men to line up against a wall. Goldman picked out two men: defendant, as the man with the shotgun during the robbery, and Lawrence Martin, as the accomplice.

From these facts, defendant makes two contentions: 1. The identification procedure used by the police was improper; therefore, the trial judge erred in admitting the identifying testimony of the complaining witness, Milton Goldman. 2. The conviction must be reversed because allegations concerning the property taken from the complaining witness were not proved.

Defendant’s first contention was raised by a pretrial motion to suppress the identification testimony of Milton Goldman. After hearing evidence, the trial judge refused to suppress the testimony. This ruling, defendant contends, was error. In support of this contention, he makes three arguments.

First, that it was improper to show Milton Goldman photographs which made it possible for him to identify in court, not defendant, but the person whose picture he selected from the many furnished him by the police. Defendant urges condemnation of any identification procedure which utilizes photographs, even though prior to arrest.

This argument, and a number of its variants, have been rejected many times by the courts of this state. We rejected one version of it in People v. Williams, 104 Ill App2d 329, 244 NE2d 347; and the Supreme Court rejected an aspect of the same contention in People v. Pride, 16 Ill2d 82, 156 NE2d 551. In Simmons v. United States, 390 US 377, 384, 88 S Ct 967, 19 L Ed2d 1247 (1968), Mr. Justice Harlan, for the court, said:

Despite the hazards of initial identification by photograph, this procedure has been used widely and effectively in criminal law enforcement, from the standpoint both of apprehending offenders and of sparing innocent suspects the ignominy of arrests by allowing eye witnesses to exonerate them through scrutiny of photographs. The danger that use of the technique may result in convictions based on misidentification may be substantially lessened by a course of cross-examination at trial which exposes to the jury the method’s potential for error. We are unwilling to prohibit its employment, either in the exercise of our supervisory power or, still less, as a matter of constitutional requirement. Instead, we hold that each case must be considered on its own facts, and that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.

The record before us does not disclose that Goldman’s use of the photographs furnished him by the police caused a very substantial likelihood of defendant’s irreparable misidentification.

Second, defendant argues that when Goldman was called to come to the police station on July 17, 1969, he was told that “[t]here is a good possibility that they may have the fellow that held us up.” Goldman told the jury that a policeman told him “[t]hey think they got one of the fellows that held us up. . . .” The point defendant makes is that these statements were suggestive and they tainted the lineup identification procedure that was used in the police station.

This argument was made to us in People v. Marshall, 74 Ill App2d 472, 221 NE2d 128 and in People v. Chambers, 112 Ill App2d 347, 251 NE2d 362, the latter a case quite similar on its facts to the one at bar. In People v. McIntosh, 82 Ill App2d 90, 94, 227 NE2d 76, we said, “Any time a 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.” This, we think, is the kind of common sense that must always guide us when we apply rules of evidence and constitutional principles to the administration of criminal justice. The police in this case did no more than was done in McIntosh.

Third, defendant argues that Detective Fred Miller was allowed to testify that Milton Goldman identified defendant from the lineup in the police station. The point made is that this testimony was prejudicial hearsay.

Overlooking the fact that no objection was interposed by defendant, we observe that this testimony was given when defendant’s motion to suppress was heard. It was not repeated to the jury. Before Detective Miller’s testimony, Milton Goldman had testified that he identified defendant from the lineup. At most, therefore, Miller’s testimony about the lineup identification did not inject new evidence into the hearing; it merely repeated what already had been proved by competent evidence. Under these circumstances, admission of this evidence was not prejudicial. People v. Frenchwood, 28 Ill2d 139, 190 NE2d 767; People v. James, 109 Ill App2d 328, 248 NE2d 777; People v. Campbell, 113 Ill App2d 242, 252 NE2d 26. For these reasons, we conclude that the trial court ruled correctly when it denied defendant’s motion to suppress Milton Goldman’s identification testimony.

Defendant bases his second contention on the fact that the indictment alleged defendant and Martin robbed Goldman of a wallet and $183 but the evidence proved the money belonged to the partnership of Milton Goldman and Ervin Wise. Thus, the argument goes, the prosecution failed to prove a material allegation of the charge.

The gist of a prosecution for robbery is that the accused forcibly took property that was in the care, custody or control of another person. Proof of actual ownership is unnecessary, where possession by the victim is shown. People v. Steenbergen, 31 Ill2d 615, 619, 203 NE2d 404; People v. Carpenter, 71 Ill App2d 137, 217 NE2d 337. In the case before us the evidence proved that defendant with a shotgun, aided by Martin his accomplice, took Goldman’s wallet from him, extracted money from it and then cleaned out a cash register in Goldman’s presence. This was armed robbery, even though evidence concerning the property taken may have varied from the allegations in the indictment. People v. Skinner, 103 Ill App2d 201, 243 NE2d 509. The judgment is affirmed.

Judgment affirmed.

DRUCKER and ENGLISH, JJ., concur.


author: GOLDENHERSH, J. EBERSPACHER, J.,

text:
    People of the State of Illinois, Plaintiff-Appellant, v. James Siglar, Defendant-Appellee.
    Gen. No. 70-20.
    Fifth District.
    July 14, 1970.

      EBERSPACHER, J., dissenting.
    Don P. Koeneman, State’s Attorney of Randolph County, of Chester, and D. McMeekin Conn, Assistant State’s Attorney, for appellant.
    Earl S. Hendricks, of Murphysboro, for appellee.
   GOLDENHERSH, J.

The People of the State of Illinois appeal from the judgment of the Circuit Court of Randolph County discharging defendant from custody upon allowance of his motion based upon section 103-5 of the Code of Criminal Procedure of 1963 (c 38, § 103-5, Ill Rev Stats).

The record shows that on January 3, 1969, the Grand Jury in and for Randolph County returned a six-count indictment charging defendant and two other individuals with the offenses of Escape (c 108, § 121, Ill Rev Stats 1967); Kidnapping (c 38, §10-1 (a), 2); Theft, two counts, (c 38, § 16-1 (a)); Burglary (c 38, § 19-1); and Armed Robbery (c 38, § 18-2). The offenses are alleged to have been committed on December 21 and 22, 1968, while defendant was an inmate of the Illinois State Penitentiary at Menard.

The record shows that on January 23, 1969, defendant appeared in open court, at which time he was given a copy of the indictment, the court explained the nature of the charges and upon ascertaining that defendant was unable to employ counsel, appointed counsel for him. The case was set for trial on February 24,1969.

On February 20, 1969, defendant was formally arraigned on these charges and entered his plea of not guilty. At that time his appointed counsel moved for, and was granted a continuance from the trial docket of February 24, 1969, for the purpose of preparation and to file certain motions. The Court granted defendant thirty days in which to file pretrial motions.

On March 10,1969, defendant filed motions for a Bill of Particulars, Discovery and Production of Objects and Statements, and for Change of Place of Trial. These motions were set for hearing on April 18, 1969. The record does not indicate a formal hearing on that date, but a docket entry reflects that the motions were continued indefinitely at the request and agreement of all counsel.

Upon expiration of his sentence on May 13, 1969, defendant was released from the Illinois State Penitentiary. On that date he was taken into custody by the Sheriff of Randolph County and thereafter was incarcerated in the Randolph County jail.

On August 25, 1969, defendant’s appointed counsel made an oral motion for dismissal of the indictment on the basis of the “120-Day Rule” because defendant had not been brought to trial within 120 days of the last delay occasioned by him while in custody. At that time defendant’s counsel also moved for a “Mental Hearing” and examination by a qualified psychiatrist. On September 2, 1969, defendant’s motion for discharge was denied. At the request of defendant and counsel, appointed counsel was granted leave to withdraw and other counsel was appointed.

On September 25, 1969, defendant by his newly appointed counsel renewed his motion for discharge based upon chapter 38, paragraph 103-5 (a), Ill Rev Stats 1967. A hearing was held and defendant’s first appointed counsel testified he could not recall any agreement with respect to the continuance of the hearing set for April 18. The court stated that the only attorney who appeared on April 18, 1969, was defendant’s appointed counsel who advised the court “these matters were going to be continued because they were not ready for trial anyway at this time.”

On November 24, 1969, the court entered an order reciting that on February 20, 1969, the court heard and granted defendant’s motion for continuance, that it was a general continuance and

“That this Court heretofore set certain motions in this cause for hearing on April 18, 1969. That on April 18, 1969 William A. Schuwerk then counsel for said Defendant appeared in open court and informed the Court that he had orally agreed with the State’s Attorney and the attorney for the Codefendant, Richard Sims that said motions would be continued to a later date and would not be heard on April 18, 1969, as shown by the docket entry in this case. That subsequent thereto said cause was set for trial on September 15, 1969. That the said Defendant was not informed and did not agree to the continuance on April 18,1969 as shown by his testimony and further the Court on said date was not informed by said attorney that said Defendant did not agree thereto.
• “That no further action was taken by the State to prosecute said cause except for certain motions which were heard in this case on August 25, 1969. That the 120-day period provided for in chapter 38, section 103-5 (a) I. R. S. commenced running on April 18,1969 by virtue of the motion setting on said date, and that said 120-day period expired prior to September 15, 1969, the date this case was set for trial. That the trial of the Defendant was not commenced within the 120-day period as provided by said statute and the Defendant is therefore entitled to discharge pursuant to said statute.”

and ordered the defendant discharged from custody.

The People’s argument is twofold: First, that the continuance granted defendant in February 1969 was to the Fall criminal jury session and the statutory period would not begin to run until the Fall setting; and second, that on April 18 defendant’s counsel agreed to an indefinite continuance of the matter, thereby tolling the statute until defendant demanded trial.

The People urge this court to take judicial notice of the fact that in Randolph County the custom “. . . is to hold two criminal jury settings a year, one in the Spring and one in the Fall . . . ,” and when defendant moved for a continuance on February 20,1969, it was with full knowledge that the case could not, and would not, be brought to trial until the Fall of 1969.

Our Supreme Court has held that the 120-day rule implements the defendant’s constitutional right to a speedy trial, that the means available to meet its requirements shall be utilized and the burden of taking steps necessary to bring about a prompt trial rests with the People. The People v. Bryarly, 23 Ill2d 313, 178 NE2d 326. Unless the delay is occasioned by the defendant, failure to try him within the time specified entitles him to discharge. People v. Markword, 108 Ill App2d 468, 247 NE2d 914.

We have examined the authorities cited by The People, People v. Stillman, 391 Ill 227, 62 NE2d 698; People v. Green, 23 Ill2d 584, 179 NE2d 644; People v. Kuczynski, 33 Ill2d 412, 211 NE2d 687; People v. Whittenburg, 111 Ill App2d 484, 250 NE2d 686; and People v. Williams, 403 Ill 429, 86 NE2d 355, and find them clearly distinguishable.

In Stillman the trial was continued to the September Term, the first day of which was fixed by statute. The Supreme Court held the four-month period commenced to run on the first day of the term. In Green and Kuczynski, the trials were continued to definite dates. In Whitten-burg, a stipulation entered into between the State’s Attorney and the defendant, by counsel, provided for a continuance from March 21, 1968 “with the understanding that said case shall be scheduled for trial during the regular spring trial calendar normally scheduled in May.”

People v. Williams appears to be authority for The People’s contention that where defendant has agreed to an indefinite continuance the statute does not apply. We note that Williams, as authority for this proposition, cites Stillman (supra) which does not so hold. It is further noted that an examination of the Citator shows Williams has not been cited as authority that a general continuance makes the statute inapplicable, although it is cited at 57 ALR2d 321 as supporting the right of a defendant to waive his constitutional or statutory right.

In the absence of authority to the contrary we hold that the general continuance granted the defendant started a new 120-day period running as of February 24, 1969, the date from which the case was continued, and in the absence of a showing that defendant understood and agreed that his trial was being continued until sometime in September 1969, it was The People’s burden to bring him to trial within 120 days of the date from which the case was continued. Whether there was a waiver of so important a right must be tested against Johnson v. Zerbst, 304 US 458, 58 S Ct 1020, wherein the Supreme Court, through Mr. Justice Black said, “A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege.”

Assuming, arguendo, that the People are correct in their contention that the defendant’s conduct delayed the disposition of the motions on April 18, 1969, it is apparent from the record that the People had no intention of setting the case for trial prior to September, more than 120 days from either February 24 or April 18, 1969. It is equally clear that the continuance on April 18, 1969 did not in any manner affect the People’s plans or intentions with respect to setting the case for trial.

Under the circumstances reflected in this record the trial court correctly ordered the defendant discharged and the judgment of the Circuit Court of Randolph County is affirmed.

Judgment affirmed.

MORAN, J., concurs.

EBERSPACHER, J.,

dissenting.

I am of the opinion that the rule stated in People v. Williams, 403 Ill 429, 86 NE2d 355, should control this case. In that case the defendant was arrested on October 1, 1947, and was tried on March 18, 1948, more than 120 days from the date of his arrest. At page 432 of that opinion the Court said:

“The failure to try him within the statutory period was due to his agreement to an indefinite continuance; hence the statute does not apply.”

Here the defendant was present in open court on February 20, 1969, when his attorney filed a written motion in which it was recited that the case was set for trial on February 24,1969, and in which the prayer was “respectfully request a continuance in the above cause.” He was present when the prosecution announced on that day that the State had no objection to the motion for continuance and the court announced that he would be willing to grant the continuance and that the case was “taken off the trial docket for February 24th.” This constituted the granting of defendant’s motion and as the court found was a general continuance, to an indefinite date; precisely what defendant had requested. Here the indefinite delay was requested by defendant and the fact that the court did not make it to a date certain should not effect defendant’s waiver of the 120-day rule.

Our statute (c 38, § 103-5, Ill Rev Stats) implementing our Constitutional provision for a speedy trial (Art II, Sec 9) is not operative where the delay is occasioned by the defendant. Neither the fundamental right to a continuance to adequately prepare a defense nor the fundamental right to a speedy trial should be depreciated to the status of a tactical move in a procedural game.

With reference to defendant’s waiver of the fundamental right to a speedy trial, defendant has a choice (1) either to have his case continued to a definite date in which event there would be no question of his waiving the right to a speedy trial until that definite date with a new 120-day period starting on that date, or (2) seeking a general continuance for an indefinite time, in which event he should be considered to waive his right to a speedy trial for the same length of time as the trial of the case is continued at his request, i. e., indefinitely. A defendant should not by a motion for a general continuance be allowed to speculate that the administrative problems of a busy court and prosecutor will allow him to both “have his cake and eat it too.”

In my opinion, there is no question whether the waiver of the defendant’s right to a speedy trial (one within 120 days of his being available to authorities) was intentionally relinquished or abandoned. That waiver is by operation of law as spelled out in the statute in the words “unless delay is occasioned by defendant,” so long as due process is not violated and there is no claim of any violation of due process in this case. He, as are all persons, is charged with knowledge of the law; here, that if he occasioned the delay in his trial the right to a speedy trial was suspended, just as he is charged with knowledge that his alleged escape from the penitentiary was a violation of the law. Defendant here makes no contention that he did not understand the effect of his seeking and receiving the continuance he sought and in this factual situation there is no presumption that he was not aware of the 120-day rule, and his constitutional rights, both of which he personally argued to the Court, contending that his 120-day period started at the end of the 30-day period in which motions (other than for a continuance) were to be filed. See People v. Petropoulus, 34 Ill2d 179, 214 NE2d 765.

I am unable to understand the rationale by which the majority reach the conclusion that it was the burden of the People to bring defendant to trial within 120 days of the date from which the case was continued. Illinois cases uniformly hold that it is the People’s burden to bring a defendant to trial within 120 days of the date to which the case was continued where the defendant sought the continuance, and the holding in People v. Williams, supra, is that the statute does not apply where the failure to try the defendant within the statutory period was due to his agreement to an indefinite continuance. The fact that our Supreme Court cited People v. Stillman, 391 Ill 227, 62 NE2d 698, a case in which the defendant moved for and received a continuance to the September term which commenced on September 9 and in which it was held that his 120-day period commenced on September 9, in People v. Williams, supra, does not depreciate the latter case to the extent that this Court is not obligated to apply it in this case, in my opinion; this is particularly true in view of the fact that as late as 1967 our Supreme Court in People v. Fosdick, 36 Ill2d 524, 224 NE2d 222, recognized Williams by citing it as authority for the proposition that acquiescence on the part of counsel for defendant “to a new setting at an early date consistent with the business of the court” amounted to a delay occasioned by defendant and that defendant could not evade prosecution by creating the delay. Under such circumstances, the fact that the Citator does not show Williams as authority that a general continuance makes the statute inapplicable, fails to impress.

We are not here dealing with an arbitrary or oppressive delay nor has the State done anything to evade the right of defendant to a speedy trial, nor is any ulterior motive on the part of any official shown. Nor has defendant shown, either below or in this Court, that he was prejudiced by the general continuance which he sought. Even where it is not clear that the right to a speedy trial was denied whether the defendant was or was not in fact prejudiced through delay must be importantly considered. People v. Love, 39 Ill2d 436, 235 NE2d 819, and here the delay was not so prolonged that it must be deemed to have prejudiced the accused, were we to disregard his request for the delay. People v. Love, supra.

I would therefore reverse the order of discharge.

       People v. Faulisi, 34 Ill2d 187, 215 NE2d 276; People v. Kuczynski, 33 Ill2d 412, 211 NE2d 687; People v. Bagato, 27 Ill2d 165, 188 NE2d 716; People v. Hayes, 23 Ill2d 527, 179 NE2d 660.


author: MR. JUSTICE McNAMARA

text:
    Frank Cassata, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 53,455.
    First District, Third Division.
    July 16, 1970.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Henry N. Novoselsky, Assistant Corporation Counsel, of counsel), for appellant.
    Herbert P. Veldenz and Angelo Caliendo, of Chicago, for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Plaintiff brought this action to recover damages for personal injuries arising out of a collision between plaintiff’s automobile and a crane owned by the defendant City of Chicago. After trial, the jury returned a verdict in favor of plaintiff and assessed damages in the amount of $7,500. The jury also answered no to a special interrogatory as to whether plaintiff was guilty of negligence at and immediately prior to the occurrence. Defendant’s sole contention on appeal is that plaintiff as a matter of law was guilty of contributory negligence, and that, therefore, the trial court erred in denying defendant’s motions for a directed verdict, judgment notwithstanding the verdict and for a new trial. The facts adduced at trial as to the occurrence are as follows.

The instant lawsuit arose out of a collision which occurred in the vicinity of 5809 South Damen Avenue, Chicago, on April 26, 1962, shortly before 2:00 a. m., between an automobile driven by plaintiff and a crane owned by defendant, which was parked on Damen Avenue. Damen Avenue running north and south was four lanes wide, two lanes on each side. Defendant was engaged in a sewer excavation in the area, and at the conclusion of the day’s work, its employees had erected a barricade around the excavation. The crane was placed at the north end of the excavation, about 100 feet south of 58th Street. Its rear wheels were supported by blocks so that it could not be moved. The crane was straddling the center lanes of Damen Avenue, blocking one lane of traffic northbound and one lane southbound.

Plaintiff testified that on the evening in question he was employed as a pressman and finished work at about 1:05 a. m. It was a clear night. He was alone and driving home from work when the accident occurred. Plaintiff entered Damen Avenue at 57th Street. He was familiar with Damen, and had driven on it previously. The streetlights were on and working, and he had no difficulty with the lighting as he drove. Another automobile, also proceeding south on Damen, was ahead of him. That automobile, traveling at about 25 miles per hour, was operating in the center of both southbound lanes. Plaintiff was about 25 feet behind, and proceeding at 20 miles per hour. As they approached 58th Street, plaintiff testified that he decided to pass the automobile ahead. He sounded his horn, but the car remained in the same lane. When plaintiff was almost four houses south of 58th Street, he proceeded to pull out to his left to pass. Part of his automobile crossed the center line. As he pulled out, he saw that there was no traffic coming in the opposite direction. He knew this because the oncoming lights would have shone upon him. The two automobiles were practically side by side when plaintiff’s automobile struck the parked crane. Plaintiff testified that when he swung out to pass he did not observe anything but the crane. He tried to stop, but came in contact with it. On cross-examination, plaintiff testified that he had just swung out when he hit the crane, and that he had not seen it prior to impact.

A city ordinance in effect at the time of the occurrence provided that anyone engaged in work on a public way was required to place two red lights in a conspicuous place, one at either end of the obstruction from dusk to sunrise. Municipal Code of Chicago, c 33, §53.

Robert Joyce, a foreman of the Bureau of Waters and Sewers of the City of Chicago, testified for the defense that he was in charge of the sewer excavation in question. The crane was painted yellow and its front bumper was painted with yellow and red reflective diagonal stripes. The crane had reflectors on the front, sides, top and middle. These reflectors had no power source of their own but operated when a light was shone upon them. Three fuel oil bombs were placed in front of the crane. These bombs were blue, and gave off a small yellow flame. No warning signs were placed on the street ahead of the work to indicate that work was being done on the street. There were no red lights or lanterns placed at either end of the excavation.

Joyce also testified that the lighting conditions on Damen Avenue were very good. There were lights on both sides of the street, two of them at the corner and two more a little south of where the crane was parked. He testified that there was sufficient room for one lane of southbound traffic and of northbound traffic to pass the barricade, but that two cars side by side could not travel in the same direction.

Officer Kenneth Calvin of the Chicago Police Department testified for the defense that he investigated the accident. He had a conversation with plaintiff at the hospital and plaintiff told him that he had fallen asleep, and ran into the crane. Calvin also identified photographs he had taken of the scene.

We find that the trial court committed no error in denying defendant’s motions for a directed verdict or for judgment notwithstanding the verdict on the ground that plaintiff as a matter of law was guilty of contributory negligence. In order to have allowed defendant’s motions, it would have been necessary for the trial court and for this court now to determine, after considering all of the evidence in its aspect most favorable to the plaintiff, that the evidence presented so overwhelmingly favored defendant that no contrary verdict could stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 229 NE2d 504 (1967). We do not believe that such a determination can be made in the instant case.

It is the function of the jury to determine the facts, disputed as well as undisputed, and to make reasonable inferences therefrom. Hulke v. International Mfg. Co., 14 Ill App2d 5, 142 NE2d 717 (1957). And merely because contrary inferences would be equally supported by the evidence is not sufficient to show that a verdict is unreasonable. Since the jury must weigh contradictory evidence, judge the credibility of witnesses and draw the ultimate conclusion as to the facts, its conclusion, whether relating to negligence, contributory negligence, or any other factual matters should not be set aside because a court might believe that other results are more reasonable. See Finley v. New York Cent. R. Co., 19 Ill2d 428, 167 NE2d 212 (1960).

The jury could have properly determined that plaintiff was unable to see the crane before he came in contact with it. He was traveling about 25 feet behind another automobile, and consequently there was some obstruction to his possible view of the crane and excavation. When plaintiff pulled out to pass, there was no traffic approaching from the opposite direction because he saw no headlights. Further, the reflectors on the crane had no power source of their own, operating only when a light was shone upon them. Thus, plaintiff’s headlights would not have struck the reflectors until he had pulled out to pass. The fuel oil bombs admittedly gave off only a small yellow flame. It was also admitted by defendant that there was no red light placed ahead of the excavation, as required by ordinance. Nor were there any warning signs on the street that work was being done. From all of these facts and circumstances, along with an examination of the photographs of the scene, the jury could have properly determined that, as the plaintiff pulled out to the left to pass the automobile ahead, there was nothing he could do to avoid striking the parked crane. It was, therefore, proper for the jury to determine that plaintiff was in the exercise of due care for his own safety, and thus free from contributory negligence.

Cases cited by defendant enunciate the well settled principle that a party will not. be absolved of the charge of negligence in failing to look by testimony that he looked and did not see. All of the cited cases refer to factual situations where the parties had clear views of the area in question during daylight hours and had time to take steps to avoid the danger and did not do so. Those cases are not applicable to the instant case. As we have already stated, the jury could reasonably find that plaintiff was unable to see the crane or to take any action to avoid the collision after he swung out to pass the other vehicle.

We conclude that the issue of whether plaintiff was guilty of contributory negligence was for the jury to decide. The trial court did not err in denying defendant’s motions for a directed verdict or for judgment notwithstanding the verdict. Nor did the trial court abuse its discretion in denying defendant’s motion for a new trial.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Graham, Defendant-Appellant.
    Gen. No. 53,780.
    First District, Third Division.
    July 16, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of Chicago and John E. Knight, of Oak Park, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Donald Novelle, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, James Graham, was indicted for murder. After a bench trial, he was found guilty of that charge and sentenced to the penitentiary for a term of 15 to 16 years. He appeals, contending that he was not proved guilty beyond a reasonable doubt. The facts as brought out at trial are as follows.

Irving Tomlinson, a laundry truck driver, testified for the State that on August 14, 1967, at about 7:15 a. m. he was making a laundry pickup in the vicinity of 6220 South Woodlawn, Chicago. He had just pulled up in his truck when he heard defendant and a young lady getting out of a car. Defendant got out on the driver’s side and was standing on the street. The young lady was screaming “Don’t do it, don’t do it.” Defendant had a rifle in his hand, and both he and the girl were walking toward the entrance of the building at 6220 Woodlawn when the deceased emerged. Deceased was carrying a package wrapped in brown paper with a white string around it.

The package was about the size of a lunch bag, about a foot long and six inches wide. Deceased did not try to take anything out of the package, and it had no recognizable shape. Defendant, carrying the rifle, started to chase deceased, who was trying to run from the gun, and was crouching down behind parked cars. Defendant jumped on the roof of a parked car. At that time he was holding the rifle about three feet from the deceased, who tried to reach for it. Defendant fired one shot and deceased fell. Defendant was unable to get his car to start, and walked away.

On cross-examination, Tomlinson testified that the deceased had not come out of the building when the lady was screaming not to do it. Deceased was carrying the package like a lunch. He was not holding the package by the end, and was not trying to swing it. No conversation took place between deceased and defendant.

The trial judge then asked Tomlinson several questions. The judge asked who the young lady was talking to when she screamed not to do it, and the witness replied that she was talking to defendant. The judge asked what caused defendant to jump on the car, and the witness answered that he imagined to get a better shot at the deceased. The judge asked whether defendant jumped on the car to avoid attacks by deceased, and whether deceased was chasing defendant. Tomlinson replied no to both questions.

Officer John Scott of the Chicago Police Department testified for the State that he arrested defendant on the date of the slaying. As he and his partner approached defendant, whose right arm was in a cast, the latter stated that he was the man they wanted. Defendant took the police to where he had hidden the gun, a Luger 44-calibre magnum. Defendant had 8 or 9 magnum bullets on his person at the time of the arrest. Officer Scott saw a hatchet at the police station. The hatchet was in a case, and there was also a brown bag.

It was stipulated that if two other police officers were called to testify, they would testify that they arrived at the scene shortly after the occurrence, and that they found an ax, sheathed and in a brown bag, lying near the body of the deceased.

Defendant testified on his own behalf that on August 11, 1967, he went to visit Vernita Almory, a friend who lived at the Woodlawn address. She owed him money. As defendant was getting out of his car, he saw her and deceased entering the building, and he called her over to talk to her. Deceased walked over to the car and threatened to kill defendant if he came there again. Deceased then went upstairs and a few minutes later came down with a hatchet and chased defendant. Defendant went home, called the police, but was told that he would have to go to court to get a warrant for the arrest of deceased. Three days later, on the date of the occurrence, Miss Almory called defendant and asked him to come over. Defendant brought his rifle with him. When he arrived she was waiting outside for him and entered his car. As they left the car to buy cigarettes, deceased came outside with a hatchet in his hand. The girl screamed at deceased not to do it, and defendant ran back to the car to get his rifle. Deceased started to chase him so he jumped on a car roof, repeatedly asking deceased to stop. Deceased was swinging the hatchet at him, so defendant whose right arm was in a cast, shot him in the arm. He was not trying to kill deceased, but was trying to protect himself. There was a paper bag around the handle of the hatchet, but the blade was exposed, and defendant could see it shining.

On appeal, defendant contends that under all of the evidence, including his own testimony that he was acting in self-defense, the State failed to prove him guilty of murder beyond a reasonable doubt.

Defendant’s testimony as to the occurrence was contradictory in many respects to the evidence offered by the State. Consequently, the credibility of the witnesses became the determinative issue. The credibility of the witnesses is for the trial court to decide, with its superior opportunity to observe their manner and demeanor, and that determination generally will not be disturbed on review. People v. Pendleton, 75 Ill App 2d 314, 221 NE2d 112 (1966). And it is not the province of this court to substitute its judgment for that of the trier of fact merely because the evidence is conflicting. The People v. Novotny, 41 Ill2d 401, 244 NE2d 182 (1968).

The trial court resolved conflicts in the testimony between Tomlinson and defendant in favor of the State, and we see no reason to disturb that determination by the trial court. Tomlinson, a stranger to the parties, gave testimony which was clear and convincing. His testimony was also corroborated by the testimony of the police officers. If believed, as it was by the trier of fact, the evidence offered by Tomlinson was sufficient to prove defendant guilty of murder beyond a reasonable doubt. Tomlinson’s testimony was to the effect that defendant, despite pleas by a young lady, shot and killed a man who was trying to escape from defendant by hiding behind parked automobiles. He further testified that, while deceased was carrying a brown bag, he did not brandish it or attempt to use it as a weapon. That evidence was supported by the testimony of the police officers that at the scene they found a sheathed ax wrapped in a brown paper bag near the body of deceased. The officers’ testimony not only corroborated that given by Tomlinson, but also impeached defendant’s testimony that deceased was swinging a hatchet and chasing him. Additionally that evidence supported the trial court’s rejection of defendant’s claim that he acted in self-defense. Nor would defendant’s testimony that deceased had attacked him with a hatchet three days earlier, even if believed by the trial court, justify the subsequent slaying.

Defendant maintains that Tomlinson witnessed only the latter part of the occurrence, and that he was confused as to what actually had occurred. However, an examination of the record reveals that not only did Tomlinson view the entire occurrence, but that he was an observant and impartial witness. Defendant also contends that the fact that he climbed on the roof of an automobile indicated that he was trying to avoid the deceased, since his rifle was so powerful that he could have shot deceased as he emerged from the building, or even through the obstruction of an automobile. The argument overlooks the testimony of Tomlinson that the deceased took evasive action as soon as he came out of the building. It also ignores the fact that defendant’s arm was in a cast, and he necessarily would have to get close to deceased in order to shoot him. We find no merit in defendant’s additional argument that the fact that he fired only one shot was corroborative of his claim that he was not the aggressor. In this respect, we would note that the trial court was not required to search out a series of possible explanations compatible with innocence, and then elevate them to the status of reasonable doubt. People v. Jackson, 98 Ill App2d 296, 240 NE2d 482 (1968).

Defendant also urges that the failure of State to call Vernita Almory as a witness on its behalf created an inference that her testimony would have been adverse to the State. However in People v. Jones, 30 Ill2d 186, 195 NE2d 698 (1964), the court held that the failure by the State to call every witness to a crime does not give rise to a presumption in defendant’s favor. As we have noted, Tomlinson’s testimony was complete in all respects, and it was not incumbent upon the State to call as a witness defendant’s friend, Vernita Almory. The case, People v. DiVito, 66 Ill App2d 282, 214 NE2d 320 (1966), cited by defendant for the proposition that an adverse inference is created by the State’s failure to call a witness, is distinguishable from the instant case. In that case, the victim was unable to identify the accused as one of the robbers, and the accused’s connection with the crime was based on a fingerprint. Thus the court held that failure to call an eyewitness to the crime created an adverse inference against the State. No such facts exist in the case at bar.

Finally, under the heading that he was not proved guilty beyond a reasonable doubt, defendant argues that the trial court was deflected from a finding of not guilty by certain answers given by Tomlinson in response to questions propounded by the trial judge. While a few of the questions were leading and certain answers constituted conclusions, it should first be noted that defense counsel made no objection to the questions or answers. Moreover, defendant suffered no prejudice as the result of the brief interrogation by the trial judge, nor could the latter have been misled by the responses of Tomlinson. All of the answers given by Tomlinson to the judge’s questions had been fully substantiated by previous competent testimony he had given.

Accordingly, the judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    The People of the State of Illinois ex rel. The Oak Park National Bank, a National Banking Association, as Trustee of Trust 8484, Anthony Rappolo and Robert W. Prendergast, Relators-Appellees, v. City of Chicago, a Municipal Corporation, and Joseph Fitzgerald, Commissioner of Buildings of the City of Chicago, Respondents-Appellants.
    Gen. No. 54,583.
    First District, Third Division.
    July 16, 1970.
    Raymond F. Simon, Corporation Counsel of City of Chicago, for appellants.

      J. J. O’Toole, of Chicago, for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiffs were granted a writ of mandamus compelling the City of Chicago to issue a permit for a multiple-family building they intended to erect in Chicago. The proposed building was in conformity with the applicable zoning ordinance, but the City refused to issue the permit on the ground that an amendment to the ordinance was pending in the City Council which, if passed, would prevent the construction. The permit also was refused for the reason that the building plans did not comply with the City code.

The pleadings and the evidence disclosed that the plaintiffs, in reliance upon the existing zoning ordinance, expended several thousand dollars for surveys, soil tests, architect’s fees and the demolition of buildings on the property. After the plans were drawn, they submitted them to the City building department and applied for a permit. The department pointed out two errors in the plans and suggested corrections. The plaintiffs made the corrections and the plans were tentatively approved. The permit, however, was not issued.

The plaintiffs thereafter filed this mandamus action. The day after the suit was filed a zoning amendment affecting the plaintiffs’ property was introduced in the City Council. Also, after the suit was filed, the building department made further objections to the building plans.

The Chicago City Council has not acted on the amendment and the plaintiffs, during the trial of this cause, altered the plans to meet the department’s final objections. The City concedes that the issue concerning the pendency of their proposed zoning amendment is no longer relevant (See section 11.9-7, Zoning Ordinances, City of Chicago) and that the last plans submitted by the plaintiffs eliminated all the building department’s objections as to their compliance with the City Building Code.

The only remaining point advanced by the City in this appeal is that the writ of mandamus was improvidently issued because it was based on the building plans submitted by the plaintiffs during the trial; that these plans differed from the ones which existed when the mandamus suit was commenced but that the plaintiffs did not amend their complaint to show the change. This point was not raised by the City at the trial and cannot be raised for the first time on appeal. Hedrich v. Village of Niles, 112 Ill App2d 68, 250 NE2d 791 (1969). Moreover, the record shows that the supervising architect for the City’s building department testified that the revised plans met all the requirements of the code and that the plans were introduced into evidence at the City’s insistence.

The judgment of the Circuit Court is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Robert M. Acker, Defendant-Appellant.
    Gen. No. 53,776.
    First District, First Division.
    July 20, 1970.

      McLennon, Sklodowski, Nelson and Rocco, of Park Ridge (Robert L. Sklodowski, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James W. Reilly, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial defendant was found guilty of the offenses of “disregarding a traffic light” and “involuntary manslaughter” as charged in the indictment. The jury found defendant not guilty of “operating a motor vehicle while under the influence of intoxicating liquor.” Defendant was released on probation for the period of five years, with the first six months to be served in the Cook County House of Correction.

On appeal defendant contends that (1) his constitutional rights and statutory guarantees were violated when the prosecutor commented indirectly on defendant’s failure to testify; (2) the prosecutor’s closing argument was so improper and prejudicial that the defendant was denied his right to a fair trial; and (3) that the evidence presented in the trial court was not suffi-ciexit to prove defendant guilty beyond a reasonable doubt.

On the morning of May 3, 1968, at approximately 2:00 a. m., at the intersection of Lawrence Avenue and Eiver Eoad in Schiller Park, an automobile driven by the defendant, Eobert Acker, collided with a motorcycle driven by Charles Baka. Baka died as a result of the injuries received in the collision. There were no eyewitnesses to the actual collision. Traffic lights controlled the intersectional vehicular traffic.

A witness for the State, Fred Minch, testified that he and Baka were riding their motorcycles in a northerly direction on Eiver Eoad. As Minch and Baka approached the intersection of Eiver Eoad and Lawrence Avenue, Baka was 15 or 20 feet behind him. As Minch approached the traffic light it was changing to yellow. Minch made a left-hand turn, heading in a westerly direction on Lawrence Avenue. Just as he was turning the light changed to red. After he made the turn Minch stopped and turned around and saw the decedent stop at the red light. As Minch motioned to Baka, he saw a car coming up on Baka from the rear, which was almost a block away. Minch observed that the car was going pretty fast. There was a slight drizzle of rain, so Minch, after motioning to Baka, proceeded down Lawrence Avenue and stopped under a viaduct to wait for Baka. Minch did not see the collision, but he did notice that the lights on the deceased’s motorcycle were working.

Police Officer John Hoagland testified that on May 3, 1968, he was in the vicinity of Lawrence Avenue and Eiver Eoad at approximately 2:00 a. m. The intersection was illuminated by a big light in front of a lounge south of Lawrence Avenue. Hoagland was traveling alone in his squad car, heading south on Eiver Eoad. He was stopped at a red light at the intersection of Lawrence Avenue and River Road and was in the outer lane closest to the curb. At that time he was observing the vehicle to his left which had one headlight. He heard a crash, looked up and saw a white object going across the front of his squad car and a yellow vehicle on River Road proceeding through the intersection. It was coming from the south, proceeding north. He again observed the traffic light, and it was red for the north-south traffic. He made a U-turn and proceeded “to give chase” to the yellow vehicle, which was swerving from side to side in the northbound lanes of River Road. He pulled up behind the vehicle, which was stopped approximately 759 feet from the intersection of Lawrence Avenue and River Road. The driver of the yellow vehicle (defendant) got out of his car, and Hoagland walked up to him and asked him what had happened, and defendant said he hit something. Defendant’s clothing was very disarranged, and he appeared to stagger and leaned on the car for support. Hoagland noticed a strong odor of alcohol. Hoagland also testified, “I again asked him for identification and he took his billfold out and went through it and produced a New York driver’s license.”

After talking with defendant, Hoagland walked around to the front of defendant’s vehicle and observed a motorcycle embedded in the front of the car. Upon searching the area, Hoagland found the deceased lying about six feet in front of the defendant’s automobile or 765 feet from the point of impact. The deceased had nothing on his head and his shoes were missing. Hoagland then went back to the intersection of Lawrence Avenue and River Road and found part of a tool kit and parts of a motorcycle in the intersection, and on the side of the road approximately 30 to 40 feet from the center of the intersection he found a white helmet, which belonged to the deceased. This was the white object that he had seen going across the front of his squad car. He found one of the victim’s shoes on the west side of River Road about 25 or 30 feet from the stoplight, about three feet off the pavement. The second shoe was found to the north of the stoplight on the east side of River Road about the same distance away.

Another witness for the State, Captain Paul Ellis of the Schiller Park police department, testified concerning defendant’s general appearance after the collision. He noticed that defendant’s breath had a moderate odor of alcoholic beverage, his clothing was disarranged and his walk was swaying. Although defendant passed several sobriety tests, it was the opinion of Captain Ellis that the defendant was under the influence of alcoholic beverage.

As previously noted, the jury returned verdicts of “guilty” of the traffic violation and involuntary manslaughter charges. They found defendant “not guilty” of the intoxication charge.

Initially considered is defendant’s contention that he was not proved guilty beyond a reasonable doubt of either of the two offenses. Defendant argues that a charge of involuntary manslaughter requires proof of a conscious awareness of risk and a disregard of it. Both elements are necessary, and also the prosecution must prove that the causal connection with the death of another resulted from reckless and wanton conduct. Defendant’s authorities include People v. Sikes, 328 Ill 64, 159 NE 293 (1927), where it is said (p 74):

“Negligence, to become criminal, must necessarily be reckless or wanton and of such a character as to show; an utter disregard of the safety of others under circumstances likely to cause injury.”

Defendant asserts that there was no direct evidence that the defendant was going at an excessive rate of speed, and even if excessive speed had been proved, it alone would not constitute sufficient proof of recklessness for involuntary manslaughter. Defendant asserts that Officer Hoagland made no sequence test to determine if the northbound light was red simultaneously with the southbound light, and no direct evidence was offered that the defendant had in fact disregarded a traffic control signal. Defendant further asserts that the only evidence presented by the State consisted of after-the-fact testimony and pictures of the defendant’s automobile after the collision, and from this circumstantial evidence they drew inferences of recklessness, and a judgment of conviction resting largely on circumstantial evidence and leaving serious doubt that the defendant was criminally negligent cannot stand. In People v. Crego, 395 Ill 451, 70 NE2d 578 (1946), it is said (p 458):

“[Wjhere acts or circumstances are attributable to either an innocent or a criminal cause, the innocent hypothesis will be adopted. ... In short, defendant’s conviction cannot be sustained in the absence of proof of criminal negligence.”

The State asserts that the indictment for involuntary manslaughter charged a violation of chapter 38, § 9-3 (a) of the Ill Rev Stats, 1967, which reads:

“A person who kills an individual without lawful justification commits involuntary manslaughter if his acts whether lawful or unlawful which cause the death are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly.”

The State maintains that in a conviction for involuntary manslaughter, it is only necessary to prove beyond a reasonable doubt that defendant’s acts recklessly caused the death, and the State is not required to establish defendant’s guilt beyond the possibility of a doubt. People v. Brown, 83 Ill App2d 411, 415, 228 NE2d 495 (1967).

The State notes that the defendant did not testify nor did he put on any witnesses to contradict the testimony of the State’s witnesses. The State cites People v. Bartell, 386 Ill 483, 54 NE2d 700 (1944), where it is said (p 489):

“Direct testimony is not required to prove the means causing the death of a deceased person. The means and manner of death may be inferred from the circumstances proved. . . . Where the facts and circumstances proved on the trial carry conviction, this court will not substitute its opinion for that of the jury simply because there is some conflict in the evidence.”

A summary of the evidence shows that deceased’s companion, Minch, saw deceased stopped at a red light and also saw an automobile, which was going pretty fast, coming up on the deceased from the rear. Officer Hoagland stated the light was still red after he heard the crash, and it was he who stopped defendant’s automobile 759 feet away from the intersection, where he found decedent’s motorcycle embedded in the front of the defendant’s car and the body of decedent lying six feet in front of the car. The force of the impact knocked off decedent’s helmet and shoes, which were found scattered around the intersection between 30 and 40 feet in various directions. Absent prejudicial trial errors, we find that there was ample and sufficient competent evidence introduced by the State to prove the defendant guilty beyond a reasonable doubt of the offenses of involuntary manslaughter and of disregarding a traffic light.

Next considered is defendant’s contention that “the defendant’s constitutional and statutory rights were violated when the prosecutor commented on his failure to testify.” Defendant asserts that the prosecutor in the final argument of the present case repeatedly used the words “undenied,” “unexplained,” “not refuted,” and stated that there was “no explanation by the defense.” Defendant charges that the foregoing words were personal reference pointed at the defendant and calculated to draw attention to defendant's failure to testify and, therefore, are forbidden and prejudicial error.

The record shows that during the closing argument the prosecutor said:

“It is clear evidence, this is positive evidence, it is unrefuted, it is undenied. . . . Again, look at it in the totality of the circumstances; we now have three circumstances that must be explained away. We have heard no explanation of these circumstances.”

At this point defense counsel objected. The following dialogue took place:

THE COURT: “You commented initially about the evidence being uncontradicted, but it can’t be done repeatedly.”
DEFENSE COUNSEL: “I’d like the jury instructed in that regard.”
PROSECUTOR: “We have a right to argue — ”
THE COURT: “This will be denied. You may argue but I won’t tolerate unnecessary repetition.”

Thereafter, the prosecution continued:

“. . . and based upon all these circumstances that they observed, they are uncontradicted in the evidence, they are unexplained and undenied — .
“We have a red light, a clearly visible red light, under the only testimony in this case — .
“Well, there is testimony in the record here, ladies and gentlemen, as to the condition of those traffic lights as to whether or not they are clearly observable and that evidence is uncontradicted and—

In these last three instances objections by defense counsel were sustained by the trial court.

Defendant’s authorities on the contention that it was prejudicial error for the prosecution to comment concerning his failure to testify include Griffin v. California, 380 US 609 (1965); People v. Wollenberg, 37 Ill2d 480, 229 NE2d 490 (1967); and People v. Mills, 40 Ill2d 4, 237 NE2d 697 (1968).

In Griffin v. California, the prosecutor commented directly on the fact that the defendant would not take the stand and testify. There the court stated (P 615):

“We . . . hold that the Fifth Amendment, in its direct application to the Federal Government, and in its bearing on the States by reason of the Fourteenth Amendment, forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.”

In People v. Wollenberg, the prosecutor in closing argument commented that there was only one defendant in the case, and that only eight witnesses testified, six for the State and two for the defense. He read off the names of the witnesses, not naming the defendant, since he did not testify. The prosecutor then stated, “No one else testified. Let’s get that straight.” In reversing, the court cited Ill Rev Stats, chapter 38, ¶ 55-1, § 6, and stated (p 488):

“That statement on its face discloses, as does the entire record, that the State’s case was not in fact uncontradicted since it recites that witnesses testified in defendant’s behalf. In view of this, and the clear import of the language used, it is apparent to us that the underlying purpose and the ultimate effect of the prosecutor’s remarks was to call attention to the defendant’s failure to testify, thereby accomplishing by inference what could not be done expressly.”

In People v. Mills, the court affirmed the conviction in the face of an argument by defendant that the prosecutor’s comments indirectly pointed to his failure to testify. The court concluded the comments made went to an analysis of the defense presented. There were defense witnesses. However, the court stated (P 8):

“An appropriate test in deciding whether such closing argument violated the defendant’s right to remain silent under § 155-1 of the Code of Criminal Procedure was set out in Watt v. People, 126 Ill 9, 32, as whether ‘the reference [was] intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal right to testify?’ ”

The State maintains that in Illinois a prosecutor is not prohibited from referring to the testimony of his witnesses and then calling attention to the fact that such testimony has not been contradicted. The State’s authorities include People v. Norman, 28 Ill2d 77, 190 NE2d 819 (1963); People v. Mills, 40 Ill2d 4; and People v. Jackson, 116 Ill App2d 86, 253 NE2d 624 (1969).

In People v. Norman, the court stated (p 81):

“This court has held that a prosecutor could properly call the attention of the jury to the fact that the State’s evidence was uncontradicted even though the circumstances were such that the defendant was the only person who could have denied the People’s evidence. . . . Although the prosecutor emphasized the uncontradicted character of the People’s case, there was no evidence whatever presented by the defense, and statements pointing out the fact that the People’s case was uncontradicted are not a reference to the failure of the defendant to testify within the meaning of this statute.”

In People v. Mills, the court stated (p 8):

“We have held it permissible, however, for a prosecutor to comment on the uncontradicted nature of the State’s case even where the only person who could have contradicted the State’s evidence was the defendant himself.”

In People v. Jackson, the prosecutor in his closing argument repeatedly referred to the fact that the State’s case was uncontradicted or unrebutted. The defendant there asserted the same contention as the defendant in the case at bar. This court there stated (p 90):

“[W]e hold that the comments by the prosecutor in this case were not intended to focus on the defendant’s silence so as to violate the Mills test. It would be a most unusual jury which would view these comments as a covert attack on the silence of the defendant rather than as an assertion that while the State’s main witness had been attacked, her testimony was never contradicted by any evidence. We do not feel that these statements are the direct prosecutorial comments on the defendant’s failure to testify necessary to bring a case under Griffin, particularly since the court instructed the jury that the defendant’s silence raised no presumption or inference of guilt.”

We think it is clear from Griffin v. California and the Illinois cases noted above that a prosecutor cannot directly comment on a defendant’s failure to testify in a criminal trial. However, People v. Mills and earlier decisions permit the prosecutor to comment on the un-contradicted nature of the State’s case, even where the defendant would be the only one to testify for the defense. The Mills test was set out as “intended or calculated to direct the attention of the jury to the defendant’s neglect to avail himself of his legal, right to testify.” In Wollenberg, the comments were held viola-tive because the court found that “the underlying purpose and the ultimate effect of the prosecutor’s remarks was to call attention to the defendant’s failure to testify.”

The State also notes that in the instant case, as in Jackson, the court included in its instructions the following: “The court instructs the jury that the fact the defendant did not testify should not be considered by you in any way in arriving at your verdicts.”

After examining this record in the light of the pertinent guidelines, we conclude that the foregoing comments by the State in final argument were near the danger line, and the persistence of the prosecutor in emphasizing the uncontradicted character of the State’s case, as noted by the court, was improper. However, we are not persuadéd that the instant comments were substantially prejudicial to defendant in view of the overwhelming proof of guilt of defendant of the two charges on which he stands convicted. We find no prejudicial error here.

Considered next is defendant’s contention that “the prosecutor’s closing argument was so improper and prejudicial that the defendant was denied his right to a fair trial.” Defendant asserts that the prosecutor made a number of comments which were designed only to arouse and inflame the jury and were beyond the bounds of proper justice and denied defendant a fair trial, and they were meant to replace a rational approach by the jury with emotion. On this point the record shows that during closing argument the prosecutor made the following comments: “Maybe he can get away with it in New York.” Whereupon defense counsel objected, and the trial court sustained it and instructed the jury to disregard it. The prosecutor continued: “In Illinois we don’t tolerate that kind of driving.” Thereafter, the prosecutor made the following comment: “No, he was satisfied to go back, talk to the officer, let that poor boy, Mr. Baka, lay there and bleed.” Whereupon defense counsel objected, and the trial court sustained it.

Defendant argues that a prosecutor is a public officer charged with the administration of the law, and it is his duty to see that the defendant is given a fair trial as it is the duty of the court (People v. Rongetti, 331 Ill 581, 597, 163 NE 373 (1928)), and the furtherance of justice should be his paramount objective and he should not allow this objective to be clouded by his desire to secure a conviction.

The State argues that it is proper for a prosecutor to argue or to express his opinion of the guilt of the accused where it is apparent that such opinion is based on the evidence. (People v. Gullickson, 115 Ill App2d 157, 253 NE2d 66 (1969).) The State asserts that in the instant case the remarks of the prosecutor were entirely proper and in no way prejudicial since they were supported by evidence in the record.

We think this point calls for the application of the statements made in People v. Nicholls, 42 Ill2d 91, 245 NE2d 771 (1969). There the court said (p 100):

“We find that some of the prosecutor’s remarks were improper but we do not find under the circumstances of this trial that because of them the judgment should be reversed. Considering the comments made in the light of the evidence of guilt presented by the prosecution it cannot be said they represented a material factor in the conviction and that the verdict would have been different had the comments been unsaid.”

Although we find that some of the comments made by the prosecutor in final argument were improper in referring to the uncontradicted nature of the State’s evidence and also were somewhat inflammatory, we do not believe that these remarks represented a material factor in defendant’s conviction or that the verdicts would have been different had the comments been unsaid (People v. Nicholls).

In conclusion, we think the record demonstrates that the defendant was given a fair trial and that no prejudicial trial errors were committed. Therefore, in view of the overwhelming proof of guilt, we find that defendant was properly convicted of the offenses charged, and the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

BURMAN, P. J. and ADESKO, J., concur.