author: MR. JUSTICE BURMAN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. John McFadden, Defendant-Appellant.
    Gen. No. 53,478.
    First District, First Division.
    March 10, 1969.

      Howard T. Savage and Robert C. Power, of Chicago, for appellant.
    William G. Clark, Attorney General of State of Illinois, of Chicago (Fred G. Leach, Assistant Attorney General, John J. Stamos, State’s Attorney of Cook County, of Chicago, and Elmer C. Kissane and Theodore A. Shapero, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

The defendant, John McFadden, was tried before a jury in the Circuit Court of Cook County, Criminal Division, upon a three-count indictment charging that he murdered one Sam Collins. The defendant was found guilty and was sentenced to a term of not less than twenty nor more than forty years in the Illinois State Penitentiary. An appeal was taken to the Illinois Supreme Court and that Court transferred the case to this Appellate District.

The defendant, on appeal, assigns as errors the following: (1) the trial court denied motions for a directed verdict in favor of the defendant at the close of the State’s case-in-chief and at the close of all the evidence in the presence of the jury to the prejudice of the defendant; (2) the defendant was represented by incompetent counsel; (3) improper conduct of the prosecuting attorney; and (4) improper remarks by the trial judge to the jury.

The record reveals that Cleveland McGee, an employee of Poe and Sons Supermarket at 3658 West Cermak Road, Chicago, testified that at 7:30 p. m. on March 20, 1967, a customer whom he identified as the defendant, entered the store, pulled out a gun, and announced it was a “stick up.” McGee stated that the defendant told him and a man he knew as Larry (Sam Collins) to lay down on the floor while he, the defendant, took the money in the cash register. While they were both on the floor a short was fired, but neither one was hit. They were then made to march back to the rear of the store and McGee said that the defendant told him to get into the washroom. Sam Collins then asked the defendant for a drink of water. The defendant permitted him to get a drink, but told him to make it quick. The next thing witness McGee heard from the washroom was the sound of falling bottles and then two shots. McGee came out of the washroom, saw the defendant leaving the store, and heard Sam Collins say, “I am shot; call the police.” McGee testified that he looked in the cash register and saw that it was empty. At that point James Coleman came in the store and subsequently his mother called the police from his apartment above the store.

James Coleman testified that he lived above the grocery store. He said that he looked in the window of the store and saw a man with a gun and wearing a long black coat. Coleman stated that he also saw Larry (Sam) Collins and another man. Mr. Coleman further testified that he saw the man with the gun walk to the back of the store with the other two people in front of him. One of the two men went into the washroom and Larry (Sam) Collins went around the meat counter to a sink. All of a sudden, Coleman said, “everything started falling off the shelves and everything and I heard about two, three shots and I ran.” After the man in the black coat left the store Coleman went in. He said he saw blood on the door.

Reverend Poe, the owner of the grocery store, testified that when he left his store on the morning of March 20, 1967, there was approximately $37 in currency and about $20 in coin in the register. When he returned that evening, after the murder, the money was missing.

The defendant, John McFadden, took the stand in his own defense. He testified that he had been in Poe’s store over a thousand times and had seen McGee frequently. The defendant said he knew the decedent as Larry and had spoken to him once or twice. On the day in question he had One Hundred Twenty-seven Dollars on his person when he went to Poe’s store. He had a gun in his belt which he had earlier removed from the purse of a woman friend to prevent her from getting “into trouble with it.” Larry (Sana) Collins and McGee were in the store when he entered. The defendant asked Larry (Sana) if he could use the washroom and when the deceased asked him if he knew where it was he reminded Larry of a previous occasion when he saw Larry and McGee stealing cigarettes from the store’s vending machine. The defendant said that when he went to the washroom he saw a knife in Larry’s hand. He further testified that Larry stabbed him in the face with the knife while McGee grabbed him from behind. He said that after Larry had stabbed him in ten different places he got his gun and fired twice at Larry, who then slumped to the floor. Afterwards, the defendant said, he staggered out of the store and went home to seek medical aid. He denied that he intended to or did rob the store; that he had ordered Larry and McGee to lie on the floor; that he shot a bullet over their heads, or that he said it was a “stick up.”

William McFadden Sr., the father of the defendant, testified that when he saw his son about 8:00 p. m. on the evening in question, he observed his son was wounded in numerous places and he rushed him to a hospital.

The defendant’s fifteen-year-old brother testified that at some time prior to the shooting he had told his brother, the defendant, that James Coleman had beaten him up. He said that his brother left their home, on that occasion, found Coleman and fought with him.

A friend of the defendant testified that Reverend Poe had been “cut up” by the deceased in 1961 and that the deceased’s reputation for violence was bad.

We first consider the contention that the defendant was prejudiced by the denial of the motions for directed verdict in open court and in the presence of the jury. The defendant correctly states that “[a] fair trial contemplates that the jury will, alone, fulfill its duty of determining the facts, and it is not the province of the judge, in a criminal case, to express by word or indicate by conduct, in the jury’s hearing, any opinion upon the facts.” People v. Sprinkle, 27 Ill2d 398, 403,189 NE2d 295, 298. The defendant argues that jurors are ever watchful of the attitude of the trial judge and his influence upon them is necessarily and properly of great weight, thus his lightest word or intimation is received with deference and may prove controlling.

The record reveals in the case at bar that after the State announced that it has rested its case-in-chief the following occurred:

Mr. Lowe: (defendant’s counsel) “Your honor, at this time, the defense would like to make a motion for a directed verdict on the basis of the State not having proved a prima facie case.”
The Court: “That motion will be denied.”

Again after the defense announced that it will rest the following occurred:

Mr. Lowe: “At this time, your honor, I would like to renew my motion for a directed verdict on the basis of the failure of the State to prove a prima facie case.”
The Court: “Motion denied.”

We have carefully reviewed the cases cited by the defendant in support of the contention that the ruling by the Court invaded the province of the jury and had such prejudicial effect that it requires a reversal of the conviction and find that they are distinguishable from the case at bar. In People v. Marino, 414 Ill 445, 111 NE2d 534, the trial judge assumed the role of a prosecutor and displayed his disbelief of the testimony of a witness. In People v. Sprinkle, 27 Ill2d 398, 189 NE2d 295, there were numerous questions and comments made by the trial court which invaded the province of the jury and required a remandment of the case for a new trial. It would unduly lengthen this opinion and would serve no useful purpose to detail the other cases cited on this point inasmuch as we believe the factual situation present here differs materially from that present in the cited cases.

While it would have been more advisable to recess the case when a ruling was made on a question of law, nevertheless, we do not conclude that the defendant was prejudiced by what took place. Neither do we believe that the trial court invaded the province of the jury in the case at bar. It is undisputed that the court merely stated that the motion was denied. No other comments were made. There is nothing to even show that this occurrence was loud enough to have been heard by the jurors. It is common knowledge of judges who have sat in the Criminal Court, as we did, that generally such motions are made before the bench in a whisper so that the motion would get in the record without the jury being aware of the incident. At best the incidents could only be considered tactical errors and even as such we believe that their effect was cured by the instructions of the court.

In his second contention the defendant argues that his trial counsel was incompetent and that his incompetence prevented the defendant from receiving a fair trial. The defendant maintains that his counsel blundered when he presented his motions for directed verdict in the presence of the jury and when he recalled two of the State’s witnesses as defense witnesses. We have already discussed the question of the motions for a directed verdict. Nothing more need be said other than that it is obvious to us that defense counsel’s brief motions for directed verdict in the face of the State’s evidence were made by him only to protect his record and there has been no showing made to prove that the jury was even aware of the consequences of this legal procedure.

The second point raised under the defendant’s second contention involves the propriety of recalling two of the State’s witnesses as defense witnesses. The defendant argues that defense counsel incompetently called the two witnesses and elicited testimony from them that was prejudicial to the interests of his client. The two witnesses specifically complained of are Mary Borden, sister of the deceased who was called by the State as a life and death witness, and Reverend Poe, the owner of the supermarket. The defense strategy as revealed by the record was to acquaint the jury with the fact that the deceased was an incorrigible person and that the defendant’s version of what took place was truthful. By questioning Mary Borden the defense counsel showed that the deceased was a much larger man than the defendant. Direct examination of Reverend Poe brought out that the deceased had an argument with an armed man in Poe’s home and that both Poe and the armed man were cut up by the deceased. The defense counsel also showed by Reverend Poe that the deceased had been in jail for non-support and that on a different occasion the deceased had been involved in a fight which resulted in his being incarcerated.

The defendant argues, however, that part of the testimony of these witnesses was irrelevant and prejudicial. When putting witnesses on the stand there is always a danger that their testimony may not be entirely favorable or satisfactory. This will always be a matter of judgment by counsel. We believe, as we stated earlier, that the defense counsel conducted himself in a competent manner and that the present contention of the defendant is largely an effort to have counsel adjudged incompetent by hindsight and second guessing. People v. Bernatowicz, 35 Ill2d 192, 220 NE2d 745. From a review of the record, which we do not find to be at all analogous to the facts and circumstances of the case of People v. McCoy, 80 Ill App2d 257, 225 NE2d 123, cited by the defendant, we conclude that the defendant’s representation was competent and effective, and that there was no denial of due process of law.

In his third contention the defendant claims that the prosecuting attorney made improper prejudicial remarks in the presence of the jury. When the prosecution rested the Assistant State’s Attorney made this statement: “Judge, at this time the State will rest its casein-chief, the State having previously furnished the police reports. We’ll furnish our entire file at this time. The State will rest its case-in-chief.” The defendant argues that the prosecutor’s remarks that they had furnished the defendant with police reports and that they would also furnish their entire file could have been made only to influence the jury by pointing out that the State withheld nothing from the defendant. The record shows that no objection was made to this statement. While such remarks are improper in a criminal trial we fail to see how such remarks could prejudicially influence the jury so that the verdict could have been otherwise, had the remarks not been made. People v. Caldwell, 79 Ill App2d 273, 224 NE2d 634. It is noted by the State that these comments were never repeated during the remainder of the case, including the closing arguments.

The defendant’s fourth and last contention takes exception to the action of the trial court in directing the jury to only consider Count III of the indictment. Counts I and II of the indictment charged defendant with murder and nothing more. Count III of the indictment charged the defendant with murder while committing the forcible felony of robbery.

Just prior to reading the instructions to the jury, the court made the following statement to the jury:

THE COURT: “You have heard all the evidence and you have heard the final arguments — I hope you can hear me. You have heard all of the testimony and you have heard the final argument and I am about to read to you the instruction.
“Now at the start of the case I described to you the three counts in one indictment, three alleged versions of one indictment and I am now going to read to you the one count that goes to you for your consideration, one out of the three.
“Now that one count that goes to you for your consideration is that on March 20, 1967, John McFadden committed the offense of murder in that he committed a forcible felony to wit robbery, intentionally and knowingly shot and killed Sam Collins with a gun without lawful justification in violation of chapter 38, section 9-1 (a) 3 of the Ill Rev Stats, 1965. That is the count going to you for your consideration.”

The defendant urges that this statement by the court “can be characterized first as a direction to the jury that the defendant, if guilty at all, was guilty of the felony-murder. Such a direction to the jury withdrew from them defendant’s defense of self-defense, and was an instruction that his plea of self-defense was unavailing.” It is further urged that it does not appear that the State elected to proceed only upon the felony-murder count, that therefore, it was improper for the trial judge to make an election for the State and that by so doing the court indicated to the jury his own feeling about the evidence in the case. The defendant argues that it was the duty of the court in such a situation to instruct the jury to find the defendant not guilty on Counts I and II. We find no merit in this contention.

Section 115-4 (k) of the Code of Criminal Procedure (Ill Rev Stats 1967, c 38, § 115-4 (k)) provides that at the close of all the evidence the court may make a finding or direct the jury to return a verdict of not guilty if the evidence is insufficient to support a verdict of guilty. The case of People v. Gallas, 77 Ill App 2d 132, 221 NE2d 782, held that a trial court has the authority to dismiss the charges contained in one count without the submission of a jury instruction. Thus, the two counts in the instant case could properly be dismissed by the trial court without the jury being instructed on a finding of not guilty in the first two counts. As stated in People v. Gallas, 77 Ill App2d 132, 140, 221 NE2d 782, 786, “The court made the determination [to dismiss the first count of the indictment] as a question of law and the follow-up by an instruction was a formality.”

We must also point out that the instructions quoted above were given to the jury. Without those instructions the jury would have been free to conjecture, to guess, to theorize and to predict what the judge meant by his every act and word. In addition, the jury was properly instructed on the presumption of innocence and on the right of self-defense.

From our review of the record we are satisfied that the evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt; that the defendant received a fair trial and that he was properly found guilty by the jury. The judgment of the criminal court is, therefore, affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.

       “In giving these instructions, it is the intention of the court to instruct the jury as to the law applicable to the case, but it is not the intention of the court in the least degree to give the jury any opinion as to whether or not the defendant is guilty of the offense charged in the indictment, or to express any opinion as to the weight or sufficiency of the testimony, or as to the credibility of any witness.

      “If you have heard any evidence in this case which the court afterwards struck out, you are to wholly disregard such evidence in arriving at your verdict.

        “From anything the court has said or done in this case you are not to understand that he has any opinion as to the facts appearing in evidence. It is the duty and province of the jury to weigh the evidence which has been introduced in the case and to determine what fact, or facts, such evidence established, and, having done so, to apply such facts to the law as stated in these instructions.” (Emphasis added.)
      “The jury are the sole judges of the facts in the case, the credibility of the witnesses, and the weight to be given to their testimony. And, in anything that the court may have said throughout the trial or anything that the court may say in the instructions; the court has not intended and does not now intend to express any opinion upon the facts of the case, upon the credibility of the witnesses, or the weight to be given to their testimony.” (Emphasis added.)


source: Caselaw Access Project

author: RYAN, J.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gale William Nettles, Defendant-Appellant.
    Gen. No. 67-92.
    Third District.
    March 11, 1969.
    Rehearing denied April 9, 1969.

      A. William Razzano, of Watseka, for appellant.
    Wayne Clemens, State’s Attorney, of Watseka, for appellee.
   RYAN, J.

The defendant, Gale Nettles, was indicted for the crime of burglary in Iroquois County and was tried before a jury which returned a verdict of guilty. He was sentenced to the Illinois State Penitentiary for an indeterminate sentence of not less than five nor more than nine years. He has appealed from this judgment contending:

(1) That he was denied his constitutional and statutory right to a speedy trial;

(2) That his constitutional rights were violated when the trial court received, opened and recorded the sealed verdict of the jury at a time when neither the defendant nor his counsel were in court, and

(3) That the State’s evidence consisting solely of testimony of accomplices failed to prove the defendant guilty beyond a reasonable doubt.

On November 25, 1966, the burglary involved in this case was committed in Iroquois County. On January 10, 1967, the defendant was arrested in Vermilion County for a different offense. He was held in Vermilion County jail under the charge in that county until January 30, 1967, when he was released for lack of evidence after a preliminary hearing. Fifteen minutes later, he was again arrested at a point some five blocks from the jail. He was returned to the Vermilion County jail and the next day, January 31, 1967, he was transferred to the Champaign County jail where he was charged with still another burglary which had been committed in that county. He remained in the Champaign County jail under that charge until April 29, 1967, when he was released on his own bond. Before he left the courtroom he was arrested on a warrant from Iroquois County charging the defendant with the burglary in that county of November 25, 1966, which was first above mentioned. He was returned to the Iroquois County jail where he was continuously incarcerated until his trial on July 24, 1967.

The Iroquois County officials learned of the defendant’s involvement in the crime involved in this case from a statement given to them by an accomplice, Thomas, on February 20, 1967, and from a statement given to the Champaign County officials by another accomplice, Walker, on February 16, 1967. On March 16, 1967, an information was filed in Iroquois County charging the defendant with the burglary involved herein and a warrant for his arrest was issued on that date.

The defendant presents two different computations of time, either of which he contends, demonstrates that he was incarcerated more than 120 days before his trial in violation of chapter 38, section 103-5(a), III Rev Stats 1967 and section 9 of Article II of the Constitution of Illinois 1870.

The defendant first insists that since the Iroquois County authorities on February 16, 1967 had information implicating him in the crime for which he was subsequently tried, and since he was then in custody in Champaign County charged with a different offense, the statutory period of 120 days commenced to run on February 16, 1967. From that date until July 24, 1967, the day his trial commenced, 158 days elapsed.

Both section 103-5 of chapter 38 and its statutory predecessors (Ill Rev Stats 1963, c 38, pars 633.1 and 748) implement the constitutional right to a speedy trial (art II, §9, Ill Const 1870). People v. Fosdick, 36 Ill2d 524, 224 NE2d 242. Under both the present statute and its predecessors, it has been held essential to the starting of the statutory period, that a criminal charge be pending against the defendant. People v. Jones, 33 Ill2d 357, 211 NE2d 261; People v. Arbuckle, 31 Ill2d 163, 201 NE2d 102; People v. Gray, 83 Ill App2d 262, 227 NE2d 159; People v. Lowe, 61 Ill App2d 262, 210 NE2d 31. Obviously, unless a person is charged with a crime, there can be no prosecution, and it would seem to follow as a natural corollary that there would likewise exist no constitutional right to a speedy trial. This is not meant to imply that an arrest without a warrant before a complaint, information, or indictment has charged a defendant with a crime, will not set in motion the statutory period. However, in such cases, in order for such an arrest and incarceration to do so, the arrest must be in connection with the charge for which the defendant was subsequently prosecuted. People v. Jones, 38 Ill2d 357, 211 NE2d 261. The right to a speedy trial means the right to have speedily heard the charge upon which the accused is detained. People v. Kidd, 357 Ill 133, 191 NE 244.

In the Jones case, supra, our Supreme Court in construing our present statute’s predecessor (111 Rev Stats 1961, c 38, par 748) held that knowledge by the officials of the defendant’s implication in the offense for which he was subsequently prosecuted was not sufficient to start the running of the statutory period even though the defendant was incarcerated on another unrelated charge at the time such knowledge was acquired. We see nothing in the language of section 103-5 (a) to indicate that this section should be construed differently than the manner in which former section 748 was construed in People v. Jones, supra.

The defendant implies that there was an arbitrary delay on the part of the Iroquois County officials in taking any action on the present charge, and that such a delay amounted to an evasion of the 120-day rule such as was condemned in People v. Fosdick, 36 Ill 2d 524, 224 NE2d 242. No evidence in the record indicates that there was any ulterior motive on the part of the Iroquois County officials in failing to formally charge the defendant from February 16, 1967, when they allegedly first had knowledge of his implication in the crime until March 16, 1967, when an information was filed and a warrant issued. No proof was offered by the defendant which would indicate that the delay was an attempted evasion of the 120-day rule. People v. Lowe, 61 Ill App2d 262, 210 NE2d 31.

The second computation of time used by the defendant to demonstrate the violation of section 103-5 of the Criminal Code uses as the starting date March 16, 1967, the date upon which an information was filed charging the defendant with the burglary in question at which time a warrant issued thereon. From that date until the date of the trial on July 24, 1967, 130 days elapsed. The defendant did not urge this computation of time in the trial court. The defendant’s only motion for discharge under section 103-5 of the Criminal Code was filed May 25, 1967, argued before the Court on May 29, 1967, and denied by the court on June 8, 1967. The computation of time set forth in that motion and argument involved the earlier dates of incarceration in Vermilion and Champaign counties discussed above. Since 120 days from the filing of the information and issuance of the warrant on March 16 had not elapsed at the time the motion was argued, naturally the computation of time now under consideration was not presented to the trial court in the motion which the trial court denied. Nor did the defendant ever request that he be discharged based on the passage of 130 days between the date of the issuance of the warrant and the date of trial. In order to avail himself of the statute, a defendant must make application for discharge prior to conviction. The constitutional right to a speedy trial is personal to the accused and may be waived by failure to raise the question of delay in the trial court. People v. House, 10 Ill2d 556, 141 NE2d 12.

Furthermore, there is nothing in the record to show that the Iroquois County authorities knew that the defendant was in the Champaign County jail or that they had ever placed a “detainer warrant” or “hold order” with anyone directing that the defendant be held for the crime for which he was subsequently prosecuted in Iroquois County. The record only shows that the defendant was arrested on April 29, 1967, for this offense. We, therefore, hold that the statutory period began on that date. The burden is on the defendant to demonstrate that his right to a speedy trial has been violated. People v. Jones, 33 Ill2d 357, 211 NE2d 261; People v. Terlikowski, 83 Ill App2d 307, 227 NE2d 521. The trial date of July 24, 1967, being less than 120 days from April 29, 1967, the defendant’s constitutional and statutory right to a speedy trial was not violated.

The defendant next contends that since he was not personally present in court when the verdict was returned and when judgment was entered on the verdict, his conviction should be reversed or a new trial granted. The record shows that before the jury retired it was stipulated by the defendant, his counsel and the state’s attorney that the the jury might sign and return a sealed verdict and separate, and the polling of the jury was waived. It was further stipulated that the verdict might be opened by any judge of the court who was available. The jury returned a sealed verdict and separated. The next morning (July 25) with another judge presiding, the sealed verdict was presented to the court and it was opened and read. The verdict found the defendant guilty of burglary. The court ordered the verdict filed and the record recites “Judgment on verdict.” The case was then continued until July 27 for hearing on mitigation and aggravation and for sentencing.

The rule is clear that in all felony eases the accused must be personally present in court throughout the trial (People v. Kirilenko, 1 Ill2d 90, 115 NE2d 297; People v. Brindley, 369 Ill 486, 17 NE2d 218) including the rendition and recording of the verdict. People v. Nelson, 18 Ill2d 313, 164 NE2d 16; Annotation 23 ALR2d 456, 463. The reason given in many cases from other jurisdictions for including the time of the rendition of the verdict within the time when the accused has a right to be present is that his presence at that time will give him an opportunity to poll the jury to ascertain if they assent to his conviction. Annotation 23 ALR2d 456, 468. However, the accused’s right to be present at the trial itself or any portion thereof may be waived. People v. Woods, 27 Ill2d 393, 189 NE2d 293.

The case of People v. Nelson, supra, is urged by the defendant as being controlling. The Nelson case held that the record must show the defendant’s presence at all stages of the trial including the rendition and recording of the verdict of the jury. The case also stated that the defendant by his words or conduct could waive his right to be present when the jury returned the verdict. Therein lies the important difference between the Nelson case and the case at bar. In Nelson there had been no stipulation that the jury might return a sealed verdict and separate nor had there been a waiver of the defendant’s right to poll the jury. Therefore, the reason for the rule of Nelson as stated in the Annotation in 23 ALR 456, 468, i. e., that the defendant may poll the jury, does not exist in the present case. In light of the defendant’s stipulation there was no function that he could have performed at the proceedings held on July 25 except to listen to the reading of the verdict. The Illinois Supreme Court has repeatedly held that the right to be present guaranteed by section 9, article II of the Constitution of 1870 is not infringed upon by the holding of hearings outside of the defendant’s presence which do not involve substantial rights of the accused. People v. Woods, 27 Ill2d 393, 189 NE2d 293, and cases cited therein. In Snyder v. Massachusetts, 291 US 97, 78 L Ed 674, Justice Cardozo stated:

“In a prosecution for a felony the defendant has the privilege under the Fourteenth Amendment to be present in his own person whenever his presence has a relation reasonably substantial to the fulness of his opportunity to defend against the charge— Nowhere in the decisions of this court is there a dictum and still less a ruling, that the Fourteenth Amendment assures the privilege of presence when the presence would be useless or the benefit but a shadow.” (Emphasis supplied.) (78 L Ed at 678.)

In the case of People v. Brindley, 369 Ill 486, 17 NE 2d 218, the defendant was not present when the jury was sworn and when certain other matters pertaining to the selection of the jury transpired. The court stated that the record shows a situation where several important matters of procedure were conducted outside the presence of the defendant. The court further stated that standing alone, it is perhaps not reversible error, but the practice is not to be commended.

We are of the opinion that although the defendant had a right to be present in court at the time the sealed verdict was opened, read and recorded, in view of the stipulations entered into by the defendant, his absence at that time did not violate any substantial right. In the words of Justice Cardozo quoted above, his presence on that occasion “would have been useless or the benefit but a shadow.” We do not commend the practice but we do not feel in this case that the absence of the defendant when the verdict was read and recorded constituted reversible error in the absence of some showing by the defendant that he was thereby deprived of some substantial right.

The defendant’s third contention is that the state’s evidence consisting of the testimony of accomplices fails to prove his guilt. Although the uncorroborated testimony of an accomplice is of doubtful integrity and is looked upon with grave suspicion, such testimony may be sufficient to warrant a conviction if it satisfies the jury beyond a reasonable doubt that the defendant is guilty. 14AILP 388. The fact that a witness is an accomplice or that he has been promised or expects leniency does not destroy the competency of his testimony, but goes only to the weight thereof and to the credibility to be accorded to the witness, both of which are elements to be determined by the trier of the facts which in this case was the jury. 14A ILP 381, 383, 386, 387 and 388.

The defendant contends that the testimony of the accomplice Walker was so discredited as to render it unbelievable without corroboration. The discrepancy in Walker’s testimony concerning time and dates was not such impeachment or discrediting of the witness as occurred in People v. Alward, 354 Ill 357, 188 NE 425, or in People v. Hudson, 341 Ill 187, 173 NE 278, or in People v. Heilemann, 362 Ill 322, 199 NE 792 or in the three cases cited in the defendant’s brief (People v. Rendas, 366 Ill 385, 9 NE2d 237; People v. Dinenza, 356 Ill 118, 190 NE 298; People v. Cohen, 376 Ill 382, 33 NE2d 593). Our Supreme Court stated in People v. Mullins, 28 Ill2d 412, 415, 192 NE2d 840, “Although the testimony of an accomplice must be scrutinized with extreme care and acted upon with the utmost caution, a conviction based upon it should not be set aside unless it is plainly apparent to the reviewing court that the defendant was not proved guilty beyond a reasonable doubt.” In the case at bar, we do not think that it is plainly apparent that the defendant was not proved guilty beyond a reasonable doubt.

The defendant also complains that the court improperly permitted the People to call Ernest Thomas, another accomplice, as a rebuttal witness contending that this witness did nothing more than to prove the People’s case in chief and was not a proper rebuttal witness. With this we cannot agree. The defendant had taken the stand and had testified that he had never at any time had a conversation with Ernest Thomas or James Walker regarding a burglary of any sort and that everything that James Walker testified to that connected him with the offense in question was false. The People then in rebuttal called Ernest Thomas who testified concerning conversations with the defendant involving the burglary in question and concerning the involvement of the defendant in the actual burglary. This testimony was properly presented in rebuttal. People v. Bell, 328 Ill 446, 451, 159 NE 807, stated that if evidence which might have been properly introduced as proof in chief is offered in rebuttal, it is discretionary with the trial court whether or not such testimony may be admitted. Rebuttal evidence is that which is produced to explain, repel, contradict or disprove evidence given by the defendant, and where the evidence offered in rebuttal is real rebuttal evidence, the fact that it might have been offered in chief does not preclude its admission in rebuttal. We therefore believe that the trial court properly exercised its discretion in this case in permitting the People to present the testimony of Ernest Thomas in rebuttal.

For the above reasons, the ruling of the trial court will be affirmed.

Affirmed.

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


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Fred Adams (Impleaded), Defendant-Appellant.
    Gen. No. 51,996.
    First District, Second Division.
    March 11, 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 Robert B. Rosen, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

A four-count indictment was returned against the defendant, Fred Adams. Count I charged him with armed robbery, Count II with robbery, Count III with the offense of theft, and Count IV with the crime of criminal trespass to a vehicle. The defendant was found guilty on all four counts of the indictment and sentenced to a term of not less than two years nor more than two years and one day in the penitentiary. On appeal defendant contends that he was not proved guilty beyond a reasonable doubt, on the following grounds: 1) the identification of defendant by the prosecuting witness was vague and uncertain; and 2) defendant tendered evidence to establish an alibi.

Esco Elmore, the complaining witness, testified that on August 21, 1966, while driving north on Pulaski Eoad at about 2:00 a. m., he stopped for a traffic light at Jackson and Pulaski. A man opened the door on the right side and got into the car, while a second man pushed Elmore to the center and took the driver’s seat. The witness described the first man as wearing a red sweater shirt, checkered sport jacket, and dark grey hat; he stated that the man wore a thin mustache and carried a knife. The man in the driver’s seat wore a white shirt and had a scarf on his head. The first man took the witness’s wallet and some papers, and when the witness asked them to let him go, the man said, “Shut up. I will kill you.” The witness was let out of the car in an open prairie near Karlov Avenue and 19th Street, and he then walked to a service station where the attendant telephoned for the police, and the witness reported the incident. He testified that he had a concussion and a bruised hip after being shoved from the car.

The following morning Elmore called his nephew, Frank Elmore, and told him of the incident; the two men, together with a friend, Eichard Williams, went out to look for the car which they found in a vacant lot at 1403 South Karlov. Elmore then called the police, and while he was making the call, Frank and Eichard saw two men walk down the alley and start to get into Elmore’s car. They ran and overpowered the two men, holding them until the police arrived with Elmore in their car. Elmore recognized the two men as his assailants of the previous evening, and they were wearing the clothing he had described.

The complaining witness testified on cross-examination that when the two men accosted him in his car he did not see the man in the red shirt standing at his height, but saw him leaning over; that he had a good look at the man on his right (allegedly the defendant) when a light from a passing police car lit up the area. The witness admitted he was frightened at the time, and on redirect examination, stated there was a dome light in the car which increased his visibility when the door opened as he was being pulled from the car. He also stated that there were street lights and lights from a gas station which permitted him to see the profile of the defendant.

Three people testified for the defense: Arthur Matthews, Jeanette Thompson, and the defendant himself. Matthews stated that he worked as a bartender at 4106 West 16th Street from 4:00 p. m. to 3:00 a. m.; that on August 21,1966, the defendant (his cousin) came into the bar about midnight, went next door to a restaurant about 12:30, and returned to the bar about 1:00 a. m., where he stayed until 2:45, when the witness told him he was closing. The witness went into the restaurant next door at about 3:45 a. m., where he joined the defendant and a friend, Jeanette Thompson, until about ten minutes of four, at which time he left to go home. On cross-examination the witness stated that he presumed the defendant went to the restaurant when he left the bar; that he could not say exactly where defendant went while he was away from the bar; that he did not remember what the defendant was wearing, nor did he know if he had a red shirt.

Jeanette Thompson testified that she worked in the restaurant next to the tavern where Matthews worked; that on the night in question the defendant was in and out of the restaurant about four times; that he visited with her and another girl when they were not busy, then went into the tavern to visit with his cousin, later returning to the restaurant. She stated that she saw the defendant turn toward the tavern, but did not actually see him open the door. She testified that she did not recall what clothing defendant was wearing, nor did she remember whether he had a mustache or wore a hat.

The defendant testified that on the night in question he had been in the bar where his cousin worked; that he left two or three times to visit the restaurant next door; that between 2:00 and 3:00 a. m., he was either in the tavern or the restaurant. He stated that he did not remember what clothes he was wearing that night, but he knew they were not the clothes he was wearing when he was arrested. He testified that after leaving the restaurant about 4:00 a. m., he went to a girl friend’s house where he remained until about 11:30 the next morning, at which time he went home, bathed and put on the red shirt which he was wearing at the time of his arrest. He stated that he then met Willie Williams at a tavern at 15th and Pulaski; they went to a pool-hall next door where a man named Lefty gave Williams the key to a car, and the defendant went with Williams to the car. Williams had started the engine, and the defendant was getting into the car when he was struck by a man with a blackjack; the police arrived and the defendant and Williams were arrested. The defendant stated he did not know the car was stolen; that he did not have a weapon; and that he did not rob the complaining witness. Codefendant Willie Williams pleaded guilty and was found guilty of a misdemeanor.

The defendant contends that the only question before the court is whether he was proved guilty beyond a reasonable doubt, and the grounds alleged by defendant are that the identification by the prosecuting witness was vague and uncertain, and that the defendant tendered evidence to establish an alibi. It is well-settled law that the credibility of the witnesses is a matter for the trier of the fact, and that applies both to the identification of the defendant and to the alibi presented by him. In People v. McCormick, 92 Ill App2d 6, 235 NE2d 832, at page 14, the court points out that a court of review must examine the evidence in every criminal case but the judgment of the trial court will not be overturned unless the evidence is so unsatisfactory as to justify a reasonable doubt of the defendant’s guilt.

In the case before us the prosecuting witness had full opportunity to see and observe the defendant under adequate lighting conditions. He testified that he remembered the face of the defendant. This appears in the record, but was inadvertently omitted from the abstract. He testified in detail as to the dress of the defendant, and his evidence was consistent. It is true that he did say he was frightened, but that does not detract from the sufficiency of the identification. The court in People v. Cox, 22 Ill2d 534, 177 NE2d 211, at 539, holds that “the testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused.” Also see People v. Donald, 29 Ill2d 283, 194 NE2d 227.

In the instant case the defendant put on two alibi witnesses: one was Arthur Matthews, his cousin, his landlord, and apparently his close friend; another was Jeanette Thompson, who was described as a girl with whom the defendant “played all the time.” The testimony of those witnesses is not positive, and even if it Were given full credibility it would not have shown that the defendant was not out of their observation at the time the alleged crime was committed.

The companion of the defendant during the alleged robbery was Willie Williams, who pleaded guilty to the offense. According to the record, the defendant testified that Williams and another fellow committed the robbery and told the defendant about it the next day. This statement, too, does not appear in the abstract.

The defendant’s story about meeting Williams at a tavern, and the car keys being given to Williams by a man known as “Lefty” is utterly improbable and unworthy of belief. The evidence is uncontradicted that the defendant went to the stolen car and was overpowered by the complaining witness’s nephew and Richard Williams, who held the defendant until the police arrived. The complaining witness testified that he recognized the two men as his assailants of the previous evening, and that they were wearing the same clothing he had previously described.

As we have pointed out, even if the trier of the fact believed the testimony of the alibi witnesses, their testimony is consistent with the guilt of the defendant, and in People v. Carr, 22 Ill2d 619, 177 NE2d 107, it was so held. The defendant’s denial of the crime was a matter for the credibility of the trier of the fact. People v. Guido, 25 Ill2d 204, 184 NE2d 858.

In the instant case it is apparent that the trier of the fact did not believe the defendant’s testimony, nor did he feel that the testimony of defense witnesses was sufficient to establish an alibi. Upon a careful examination of the evidence in the record it is evident that the defendant was convicted of the crime charged beyond a reasonable doubt. The judgment of the Circuit Court is affirmed.

Affirmed.

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


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Charles Davis, Defendant-Appellant.
    Gen. No. 52,256.
    First District, Second Division.
    March 11, 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, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Charles Davis was charged in a two-count indictment with the murder of Lorraine Perkins. After a plea of not guilty, a jury found the defendant guilty as charged, and he was sentenced to the penitentiary for a term of not less than 14 nor more than 25 years.

Joseph Leonard Perkins, son of the victim, was 13 years old, and attended high school. He testified as follows: On October 2, 1965, at about 5:45 p. m., he was lying on the bed reading in his home at 4300 South Ellis Avenue, and his mother was talking on the telephone in the other room. Charles Davis, the defendant, came into the bedroom and picked up a butcher knife from the mantel. Joseph’s mother came to the bedroom door; the defendant approached her; she turned and the defendant followed her out toward the entrance door; Joseph followed them both and saw the defendant stab his mother in the back, then go out the door, taking the knife with him. He stated that nothing was said by any of them during this time, and that he then went to the desk clerk of the apartment hotel and asked him to call the police.

Joseph testified that he had known the defendant for about two years; that he had seen him in the apartment before, but that the defendant did not live there. He stated that he got along fine with the defendant; that he did not see him bring the knife into the apartment, but assumed it belonged to defendant since it did not belong to Joseph or his mother.

The testimony of defendant is in direct conflict with that of Joseph Perkins. The defendant testified that he had known Mrs. Perkins since 1957, that he saw her every day, and had stayed all night with her on Saturday, October 1; that he lived with her. He testified that on Sunday morning some friends, the Browns, came in with whisky, beer and wine, and that they all drank; that at noon they all went to the Browns’ apartment where they stayed and drank until around 5:00 p. m., when Mrs. Perkins, Brown and the defendant went to her apartment building. The defendant and Mrs. Perkins argued about his coming upstairs, and Mrs. Perkins insisted that he come to her apartment. The boy, Joseph, then came in and the defendant started to leave, at which time Mrs. Perkins “got excited” and started swearing at him and told her son to leave. When the defendant again started to leave, Mrs. Perkins hit him on the head with a bottle; she grabbed another bottle and hit him on the neck; he grabbed at her and twisted her around, and she took a knife from the refrigerator and hit him with it. While he was holding her around the waist and they were scuffling she asked him to turn her loose, that she had cut herself. He released her after she threw the knife down, and he tried to stop the bleeding of her hand. She told him to leave, that she was going to call the police and did not want him there because they had been arrested before. Defendant left, returned after about 15 minutes, and saw that she had cleaned up the house. He left again, and after a half hour he telephoned the hotel and learned that Mrs. Perkins was dead. He then went to Fort Wayne, Indiana, where he was apprehended and brought back to Chicago. He denied intentionally stabbing Lorraine Perkins.

In this court defendant contends: 1) that he was not proved guilty beyond reasonable doubt; and 2) that the sentence should be reduced. His first argument is with reference to the testimony of Joseph Perkins. The Illinois rule pertaining to the testimony of a child under the age of 14 years is that where an objection is imposed to the competency of a child the question is a matter resting largely in the discretion of the trial court. People v. Watkins, 405 Ill 454, 91 NE2d 406. The intelligence and understanding of a child witness are the controlling factor as to competency, and not the age. People v. Tappin, 28 Ill2d 95, 190 NE2d 806. In the case before us no objection was made as to Joseph Perkins’ testimony.

In Knab v. Alden’s Irving Park, Inc., 49 Ill App2d 371, 199 NE2d 815, the court said at page 384:

“In all cases the trial court must determine finally, upon all circumstances, whether the child is competent to testify. 2 Wigmore, Evidence § 507 (3d ed). The trial court must also determine what degree of necessity exists as to whether or not the child’s testimony should be placed before the jury.”

In the Knab case the court cited and quoted from an article entitled The Problem of the Child Witness, 10 Wyo L Rev 214 221, 222 (1956), where it was stated:

“The trend toward relaxation of the rules governing the competency of child witnesses demonstrates a growing appreciation by the courts of the fact that in many instances the testimony of a child is practically indispensable. . . .”

In evaluating the testimony of Joseph Perkins, even the cold record clearly indicates that he was a competent witness. Under the circumstances, no preliminary examination of Joseph by the court was necessary.

The defendant also raises the argument that the evidence of Joseph Perkins is unbelievable, basing it on the fact that Joseph testified that the defendant stabbed his mother without any argument or any words whatsoever being exchanged between them. Th^ defendant had testified concerning the drinking bout in the morning at the home of the deceased and the continued drinking in the afternoon at the Browns. There is no testimony in the record as to what occurred at those meeings, whether there was any quarreling between defendant and the deceased.

Defendant argues that it is improbable, impossible and unbelievable that without any words and without any provocation he stabbed the deceased, yet the defendant would have this court believe that without any provocation, the deceased engaged in a violent dispute with the defendant, hit him over the head with a bottle, immediately afterwards again hit him with another bottle, and — according to defendant’s testimony— seized a knife. Either of these accounts appears incomprehensible unless we knew what had occurred between the defendant and the deceased during the entire day. All of that information is not in evidence, and the matter of assessing the credibility of the conflicting accounts is one for the jury to determine. Based on the record we cannot say that the jury acted unreasonably in choosing to believe Joseph’s testimony instead of the defendant’s. Joseph Perkins’ testimony was clear and consistent that after the deceased was stabbed and fell to the floor he immediately went downstairs to call the police; that when he returned to the apartment he found his mother lying on her stomach, bleeding; that she said nothing to him, and the police arrived at once.

On the other hand, the defendant testified that after the stabbing he took an old dress, wet it with cold water and tied it around the wound, stating that the deceased was wounded under her arm. He stated that she told him to get out, that she was going to call the police, and he left. According to his testimony he returned about 15 minutes later and found that “she had cleaned the house up cleaner than a speck.” He was questioned as follows:

“Q. What happened then?
“A. So, I said, aren’t you going to the doctor yet? She was supposed to go to the doctor. Call the police to take her to the doctor, at least, and she hasn’t gone. She said, you get out of here. I know what I am doing. Leave this to me. So, she said, you get me nervous, so I went back out the door. ... I went to 44th, and from 44th over to South Park and I went to 55th and Indiana. . . .”

The defendant stated that he called the apartment a half hour later and was told by the switchboard operator that Mrs. Perkins was dead. The defendant then left for Fort Wayne, Indiana, since, as he said, he knew he was a convict and was afraid to become involved.

The testimony of Joseph Perkins indicates that the police arrived immediately after he called them.

Dr. Edward H. Malters testified that he was senior consultant in forensic medicine for the Coroner’s Office; that the cause of death of Lorraine Perkins was a stab wound to the left lung, with internal hemorrhaging; that the wound was four to six inches in length.

In his argument counsel for defendant talks about the unbelievable testimony of Joseph Perkins, and yet the defendant’s story is that after this woman had received a stab wound such as has been described, she got up, cleaned up the house, and was standing at the time he returned 15 minutes after the stabbing. No great amount of medical training is required in order to deduce that such a wound would not permit action of that character.

Furthermore, counsel for defendant criticizes the failure of the State to call the Browns as witnesses. We think the criticism should be directed to the defense, since, according to defendant’s testimony, Brown’s statement would have corroborated defendant’s version of the incidents. According to the defendant, Brown had come with him and the deceased to the latter’s apartment, but had refused to go in and had remained outside on the street. Defendant testified that Joseph Perkins had been directed by his mother to go out on the street, which he did, and according to the defendant, Joseph was outside at the time the incident in question occurred. Brown —a friend of the defendant — could have testified as to the whereabouts of Joseph and could have testified as to whether Joseph had gone into the street as testified to by the defendant. Brown could also have testified as to his own whereabouts during this period.

Defendant testified that he had been in the Illinois State Penitentiary for a term of one year to life, having been convicted in 1940 of the offense of armed robbery; that he was later paroled and released in 1949; that he was arrested in 1951 for taking a car from his place of employment, and sentenced to a term of two to five years; that he had served three years and nine months at Stateville Prison, and was released in 1956. It was because of this series of arrests that he left for Fort Wayne, Indiana, when he learned of the death of Lorraine Perkins, where he stayed until he was arrested, and waived extradition.

It is not necessary to cite authority to support the rule that conviction of an infamous crime can be considered by the trier of fact in determining the truthfulness of testimony. Also, it is not necessary to cite authority to support the rule that immediate flight after the commission of a crime may also be considered as evidence supporting guilt of a defendant. It is the function of the trier of fact to determine the credibility of witnesses and the weight to be given their testimony; and where the evidence is merely conflicting, the reviewing court will not substitute its judgment for that of the trier of fact. People v. Henderson, 33 Ill2d 225, 210 NE2d 483; People v. Anderson, 30 Ill2d 413, 197 NE2d 24. Where the evidence is conflicting, the credibility of witnesses and the weight of their testimony are questions for the jury. People v. Hoffman, 62 Ill App2d 267, 210 NE2d 573.

In People v. Garcia, 95 Ill App2d 34, 238 NE2d 87, the defendant contended that where conflicting facts may be explained on the hypothesis of innocence as well as a theory of guilt, it is the duty of the court to accept the explanation. The court said at page 37:

“The mere fact that the defendant’s story conflicts with that of the prosecution witnesses does not require application of the ‘hypothesis of innocence’ doctrine.”

In the instant case the question of the truth of the matters testified to and the credibility of the witness was a matter for the trier of fact, and from a careful examination of the record, we cannot accept the view that the defendant was not proved guilty of murder beyond a reasonable doubt.

Defendant’s argument that the accusation should have been for manslaughter and the sentence consequently reduced, is untenable. The judgment of the Circuit Court is affirmed.

Affirmed.

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


author: STOUDER, P. J.

text:
    Baxter Reid, Jr., Plaintiff-Appellee, v. Young Men’s Christian Association of Peoria, Illinois, a Non-Profit Corporation, Defendant-Appellant.
    Gen. No. 68-54.
    Third District.
    March 13, 1969.
    Rehearing denied April 16, 1969.

      Cassidy, Cassidy, Quinn & Lindholm, of Peoria, for appellant.
    Frederick W. Allen, of Peoria, for appellee.
   STOUDER, P. J.

Plaintiff-Appellee, Baxter Reid, Jr., brought this action in the Circuit Court of Peoria County seeking damages for personal injuries based on the alleged negligence of the Peoria YMCA, Defendant-Appellant, and Larry Em-bury, Defendant. The issues were submitted to a jury which returned a verdict in favor of the plaintiff and against the YMCA in the amount of $15,000 from which verdict and judgment the defendant has appealed. The jury found the issues in favor of defendant, Larry Em-bury and no cross appeal has been filed by plaintiff. Post-trial motions of defendant YMCA were denied.

At the time of trial, plaintiff was 24 years of age although at the time of the incident herein involved he was 11 years old. On Saturday morning, March 20, 1954, plaintiff, a member of the Peoria YMCA, was present in the gymnasium of the YMCA as a participant in the Y’s programs. Plaintiff had been designated a Junior Leader. As such Junior Leader he assisted the instructor under directions from the instructor, which duties included the care and disposition of equipment. On this Saturday morning, between classes, plaintiff was putting some equipment in a storage room when he heard his name called from the gymnasium. A circular running track was located about 24 feet above the gymnasium floor. As plaintiff walked into the gymnasium to ascertain who was calling him, he glanced upwards just at the time defendant Larry Embury dropped a punching bag from the running track toward the gym floor, which bag struck plaintiff in the face. The punching bag was filled with air but had a metal clasp on the outside, which clasp apparently struck plaintiff in the eye. As a result plaintiff sustained permanent injuries to his left eye. The foregoing facts are undisputed and the dispute in the evidence involves the circumstances existing or occurring prior to the dropping of the punching bag from the running track. For the purposes of this decision it is conceded by defendant that there is evidence in the record from which it may be concluded that Embury was requested by the instructor to bring the punching bag down from the area in which it was used on the level of the running track, and, further that at the time of the incident, the instructor was either out of the gymnasium or was shooting baskets at one end of the gym. The instructor did not see the incident take place. It also appears that while Junior Leaders were given some instruction it did not include any advice concerning dropping objects from the running track. Defendant Embury testified that he was neither advised to, nor warned against dropping the bag to the gym floor.

The allegations of negligence in the complaint are that the defendant, YMCA, “negligently failed to properly supervise the activities carried on in its gymnasium” and “negligently failed to instruct its members, servants and agents in the proper use of its facilities and equipment.” In the second count of the complaint the plaintiff alleged negligence against Larry Embury, codefendant. The jury found the issues in favor of defendant on this count with the judgment entered thereon.

On this appeal, defendant YMCA principally argues that its motion for a directed verdict at the close of all the evidence should have been granted and that likewise the trial court erred in denying its post-trial motion for judgment notwithstanding the verdict.

Defendant argues one, that it had no general duty of supervision or any particular duty of supervision under the circumstances. Two, that the injury was not the foreseeable result of any act or omission of defendant and three, that the injury was not proximately caused by any omission or act of defendant.

Defendant insists that it was under no duty to supervise the activities in its gymnasium. There being no duty, it follows, according to defendant, that no liability can arise as a consequence of an alleged breach of a nonexistent duty.

Defendant relies primarily on Kos v. Catholic Bishop of Chicago, 317 Ill App 248, 45 NE2d 1006, in which the court affirmed the dismissal of the complaint for failure to state a cause of action. According to the complaint, the plaintiff was injured when a fellow student threw a brush at him in the lunchroom of a school operated by the defendant. The complaint alleged that the plaintiff’s injury resulted from the failure of the defendant to supervise the lunchroom and that the defendant either knew or should have known that the conduct of the students in the lunchroom was such that injury might result in the absence of proper supervision. To the extent that the Kos case indicates that a school may not be under any duty of supervision or that no such duty exists despite knowledge of conditions likely to result in injury, we believe the decision is not harmonious with the current trend of decisions in this area. The defendant in Kos was a charitable organization and as such was immune from tort liability. Although defendant elected to waive its charitable immunity, it may well have been that the court nevertheless tacitly applied the traditional reasons supporting the doctrine of charitable immunity. See Wendt v. Servite Fathers, 332 Ill App 618, 76 NE2d 342.

In opposition to the Kos case, plaintiff cites Miller v. Veterans of Foreign Wars of United States, 56 Ill App2d 343, 206 NE2d 316 (where a child rehearsing for holiday activities, was injured by stepping off stage on partly opened storage door) and Kita v. YMCA, 47 Ill App2d 409, 198 NE2d 174 (child injured in fall from tree at YMCA Day Camp). The foregoing cases also involve the issue of whether the complaints stated a cause of action, and the court, in holding that they did, was not so much concerned with the substantive duties of the defendant as with the specificity of the allegations of the complaint, concluding that they sufficiently informed the defendant of the nature of plaintiff’s cause of action.

In the Miller case the court quotes from 65 CJS, Negligence, § 12, as follows, “The known characteristics of children should, however, be taken into consideration in determining whether or not sufficient care for the safety of a child has been exercised in a particular case. Accordingly, the fact that children cannot and do not ordinarily exercise the same degree of prudence and care for their own safety as adults, imposes on those by whose acts or omissions a child may be injured, the obligation of exercising more vigilance and caution than might be sufficient with respect to an adult, and conduct which might reach the standard of ordinary care with respect to an adult might, in the case of a child, amount to negligence or even gross negligence.” Although the court in Miller does not attempt to specify the nature or extent of the duties which may be imposed upon an organization respecting minors participating in its activities, it would appear to us that a duty of supervision may arise or exist with respect to particular circumstances or relationships. The duties and responsibilities of an organization to which the care or control of children is entrusted are sometimes said to be akin to the duties and responsibilities of parents. See Lawes v. Board of Education of City of New York, 16 NY2d 302, 266 NYS2d 364, 213 NE2d 667. Such an organization is not an insurer of the safety of the children involved. On the other hand, such an organization may not avoid liability for injuries resulting from its failure to exercise reasonable care.

The force of defendant’s argument is, however, entirely dissipated when it is considered in relation to its own evidence. The President of the YMCA testified he believed that supervision of the gymnasium activities was required and that in fact the YMCA employed a paid instructor for that purpose. Under such circumstances, it can hardly be contended that a duty did not exist which in fact the defendant had accepted, assumed and implemented.

Questions of “foreseeability” or “proximate cause” are, we believe, so interrelated that defendant’s assignments of error with respect thereto will be considered together. Such questions are frequently raised in personal injury actions and both parties would appear to agree that the Illinois Pattern Jury Instruction respecting proximate cause, represents an appropriate distillation of the many observations of courts on the subject. Pattern Jury Instruction Number 15.01 provides, “When I use the expression ‘proximate cause,’ I mean a cause which, in natural and probable sequence, produced the injury complained of. It need not be the only cause nor the last nearest cause. It is sufficient if it concurs with some other cause acting at the same time, which in combination with it, causes the injury.” Both parties argue that the application of the principle embodied in the foregoing instruction support their respective positions. Defendant argues that the proper application of the rule requires that its nonliability is established as a matter of law, arguing that the immediate and only proximate cause of the injury was the nonnegligent conduct of an intervening third party. Plaintiff argues that the conduct of the third party was but a link in a chain of causation and that the issue is one of fact properly resolved by the jury in his favor.

In our opinion these issues were appropriately submitted to the jury and there is ample evidence supporting its verdict in favor of plaintiff. It is admitted that at the time of this incident the instructor was not supervising, and that such inattention occurred at a time when he had directed one of his young assistants to bring the punching bag down from the upper level. Conflicting inferences may be drawn from these circumstances, including the inference that plaintiff’s injury was the foreseeable and proximate result of inadequate supervision.

Defendant also argues that the trial court erred in denying its motion for a new trial because of circumstances occurring during the trial. According to defendant’s written motion for a mistrial made at the close of the evidence, it appears that codefendant Embury and his counsel left the courtroom after the former had concluded his testimony and did not return. This, according to defendant, confused the jury thereby affecting its ability to properly determine the issues. We find no merit in this contention. We are unaware of any rule that requires a codefendant to be present at the time of trial or during the trial. In any event we fail to see how defendant could have been prejudiced by codefendant’s absence.

For the foregoing reasons the judgment of the Circuit Court of Peoria County is affirmed.

Judgment affirmed.

ALLOY and SCHEINEMAN, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Linwood Sluder, Defendant-Appellant.
    Gen. No. 69-6.
    Third District.
    March 13, 1969.
    Rehearing denied April 16, 1969.
    Craig Armstrong, of Ottawa, for appellant.
    Robert E. Richardson, State’s Attorney of LaSalle County, of Ottawa, for appellee.
   STOUDER, P. J.

This is an appeal by defendant, Linwood Sluder, from a judgment of the Circuit Court of LaSalle County revoking his probation and sentencing him to a term in the penitentiary of from twenty to forty years. This cause was previously before us and on that occasion we transferred the cause to the Supreme Court believing that the appeal involved only an appeal from a post-conviction proceeding. See People v. Sluder, 91 Ill App2d 301, 234 NE2d 74. The Supreme Court in People v. Sluder, 40 Ill2d 559, 240 NE2d 666, retransferred the cause to this court concluding that we had erred in considering the appeal as one from a post-conviction proceeding explaining that the defendant was seeking a writ of error to review his conviction and sentence and not a review of the post-conviction proceeding.

Defendant has raised two principal issues in his appeal, the first regarding error in the proceeding resulting in the revocation of his probation, and the second relating to violation of due process based on facts preceding his original plea of guilty to the offense of burglary. With respect to the second issue, the Supreme Court in People v. Sluder, supra, concluded that the record failed to demonstrate any respect in which the defendant’s right to due process of law had been violated and accordingly, we believe no further discussion of this issue is required.

Defendant was indicted for the offense of burglary and entered his plea of guilty on September 12, 1963. After hearing, defendant was granted probation for a period of three years. Thereafter on December 12, 1963, a petition was filed by the State’s Attorney of LaSalle County to revoke the defendant’s probation. The petition alleged that the defendant had violated the penal laws of this State by committing the offenses of aggravated kidnapping, rape, aggravated assault and attempted murder, which offenses had occurred after defendant was granted probation. A hearing was had on such petition and evidence of such offenses, including the confession of the defendant was introduced. As a result of the hearing defendant’s probation was revoked and he was sentenced to a term of from twenty to forty years in the penitentiary. Defendant was not indicted or prosecuted or otherwise convicted of the offenses which were the basis of the revocation of his probation. His alleged accomplice, Orville L. Masterson, was however indicted, found guilty by a jury and sentenced to a term of from forty to sixty years in the penitentiary. His conviction and sentence were affirmed in People v. Masterson, 79 Ill App2d 117, 223 NE2d 252.

Chapter 38, Ill Rev Stats 1963, provides in section 117-2(a), “A person admitted to probation shall be subject to the following conditions: (1) not violate any penal statute or ordinance of any jurisdiction. (2) . . . .”

Section 117-3 of chapter 38, 111 Rev Stats 1963, provides for the revocation or modification of probation and in subsection (d) provides, “if the court determines that a condition of probation has been violated, the court may alter the condition of probation or imprison the probationer for a term not to exceed the maximum penalty for the offense of which the probationer was convicted.” The offense for which the defendant was originally convicted, burglary, is punishable by confinement in the penitentiary for a term of one year to life. Hence, there is no question that the sentence imposed by the court is within the terms of subsection (d) heretofore quoted.

Defendant argues that his violation of a penal statute may only be shown by introduction of the record of conviction therefor. To permit proof of such a violation by any other means would, according to defendant, in effect deprive him of the benefit of the presumption of innocence which surrounds persons accused of the commission of a criminal offense. In this respect, it should be noted that the defendant does not argue that the evidence presented at the revocation hearing would have been incompetent in an independent criminal action or that such evidence was or would have been insufficient to prove the offense charged, whatever standard of proof might be required. Rather, it is defendant's argument that any evidence of the commission of a criminal offense other than a record of conviction therefor is immaterial and hence, prejudicial.

This question was decided in People v. Price, 24 Ill App2d 363, 164 NE2d 528, and after an extensive review of the Illinois cases, the court held contrary to defendant’s assertion in the instant case. The defendant in Price was granted probation after pleading guilty to the offense of larceny. About a year later the State’s attorney filed a petition to revoke the probation alleging that the defendant had violated the terms of his probation by committing the offense of rape. Hearing was held on such petition and the defendant’s commission of the offense was contested. As a result, defendant’s probation was revoked and he was sentenced to a term in the penitentiary. The only difference between the instant case and the Price case is that in Price the defendant was also indicted for the offense of rape, but no prosecution on such indictment ensued. We believe such difference is of no significance. It was the defendant’s theory in Price that the State was required to proceed on the indictment and could not proceed with the revocation of probation without first determining defendant’s guilt according to the usual criminal procedure. The court held that neither the Probation Act nor any principle of law required that a probationer’s violation of a penal statute be first determined in an independent criminal action. That a probation revocation proceeding and a criminal proceeding are independent of one another and, accordingly, the result of one has no bearing on the other is illustrated by the cases of People v. Morgan, 55 Ill App2d 157, 204 NE2d 314, and People v. Kuduk, 320 Ill App 610, 51 NE2d 997.

As observed in Price, a probationer may not be deprived of his right to liberty without being accorded substantial justice. A probationer is entitled to know the nature of the charges against him, to be represented by counsel, and to be accorded a fair hearing.

We believe that People v. Eiley, 376 Ill 364, 33 NE2d 872, and People v. Grigsby, 75 Ill App2d 184, 220 NE2d 498, the cases principally relied upon by defendant, are consistent with our view that evidence of a criminal offense is properly considered by a trial court in a probation revocation proceeding. Each case involves alleged improper evidence presented by the State during presentencing hearings after pleas of guilty were entered by the defendants. The cases might be distinguished for the reason that a different type of hearing was involved, but we believe no distinction is required since the rule announced in the cases is equally applicable to probation revocation proceedings. Both cases disapprove of the State’s introduction of hearsay evidence of other offenses and in our opinion hearsay evidence either with respect to the offense charged or other offenses would be improper in a probation revocation proceeding.

Defendant’s contention that the sentence is excessive follows from his assertion that the trial court had no right to consider evidence of the commission of the criminal offenses. No contention is made that the sentence imposed was disproportionate to the offenses which the court found were committed by the defendant. Since we have held that the evidence of the offenses was properly considered by the trial court we believe it unnecessary to consider the contention that the sentence was excessive.

For the foregoing reasons we find no error in the judgment of the Circuit Court of LaSalle County and, therefore, such judgment is affirmed.

Judgment affirmed.

ALLOY and SCHEINEMAN, JJ., concur.


author: EBERSPACHER, J.

text:
    Emil Johnson, Plaintiff-Appellee, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 51,179.
    First District.
    March 14, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago, of Chicago (Sydney R. Drebin and Marsile J. Hughes, Assistant Corporation Counsel, of counsel), for appellant.
    Maurice J. Nathanson, of Chicago (Paul Peter Black, of counsel), for appellee.
   EBERSPACHER, J.

This is an action for declaratory judgment wherein the plaintiff, Emil Johnson, sought to have declared invalid certain portions of the Chicago Zoning Ordinance as comprehensively amended May 29, 1957, to the effect that the ordinance prevents the use of lots providing 3,306 square feet of lot area for the erection of a single family dwelling under the R2 zoning and to have declared the plaintiff’s right to build a family dwelling pursuant to a permit previously issued to him by the City of Chicago.

In 1954 the plaintiff and his wife acquired the following described property in joint tenancy:

Lot 5 in Block 1 in Murdock James and Company’s Milwaukee Avenue Addition; a Subdivision of Lot 4 and part of the Northeast Quarter and part of the Northwest Quarter of Fractional Section 5, Township 40 North, Range 13, East of the Third Principal Meridian in Cook County, Illinois.

Lot 5 is a lot of record in said Block 1 in said subdivision. The block in which it is located is a triangular block bounded on the northeast by Indian Road, on the southeast by Miami Avenue and on the west side by Mason Avenue. Attached hereto is an appendix showing the blocks and lots therein. All lots numbered 1 through 14, being all the lots in Block 1 are lots of record. Lot 5 is a through lot, the southern portion fronting on Miami Avenue and the north portion on Indian Road. Its west side abuts the alley east of Mason Avenue and its east side abuts Lot 4. Lot 5 of record contains a total area of about 6,700 square feet. It is improved with a single-family residence and garage facing Miami Avenue. At the time of acquisition plaintiff was delivered a plat of survey of Lot 5 purporting to show that it had been divided into two parcels, by the drawing of a line at right angles to the west line of the lot at a point 120 feet (erroneously shown as 210 feet) North of the Southwest corner of the lot. The line extends 30 feet across the lot from an iron pipe on the west line to an iron pipe on the east line. The North parcel, 119.23 feet north and south adjoining the alley was designated as Parcel B, and the South parcel was designated as Parcel A. Neither are lots of record. Parcel B contains approximately 3,306 square feet while Parcel A contains approximately 3,442 square feet. The residence of plaintiff is located on Parcel A and Parcel B previous to 1962 contained trees and shrubbery and was used as a garden for the residence on Parcel A.

The parties stipulated that all lots in the same block abutting Mason Avenue are improved and all are lots of record providing 3,750 square feet and that the corner lots are larger than 5,000 square feet (at Miami and Indian Road intersections with Mason Avenue). The parties further stipulated that Lot 1 of Block 1, at the corner of Indian Road and Miami Avenue, now contains two single-family residences on portions of Lot 1 which are not lots of record. Both of the portions of Lot 1 on which these buildings are built are less than 5,000 square feet, but over 3,750 square feet in area. Lots 3 and 4 have been divided by metes and bounds into portions or parcels which are not lots of record. On the south portion of Lots 3 and 4, fronting on Miami Avenue, there is a single-family residence and garage. The lot area is 4,486 square feet. In 1958, John J. Jung bought the northern portions of Lots 3 and 4 fronting on Indian Road. Mr. Jung erected his single-family residence on this parcel which provides a lot area of 6,450 square feet.

The section of the Chicago Zoning Ordinance applicable to the present case provides as follows:

“7.5-2 Minimum Lot Area — R2 Single-Family Residence District
“In an R2 District, there shall be provided not less than 5,000 square feet of lot area per dwelling unit, except that in cases where the predominant number of lots of record on the effective date of this comprehensive amendment, fronting on the same side of the street between the two nearest intersecting streets, have a lot area less than that prescribed by the regulation of this district, then, and in that event, the lot area requirement shall be that of existing lot areas in the area previously described, but in no event shall the lot area requirement be less than 3,750 square feet.” (Municipal Code of Chicago, c 194A, § 7.5-2, as amended.)

All uses in Block 1 in which Lot 5 is located, are single-family residence uses in compliance with the zoning designated as R2.

In 1961 plaintiff had a survey made of Tract B which showed the same dimensions as the survey delivered to him on acquisition, but corrected the earlier survey to show that the pipe in the west line of Lot 5 was 120 instead of 210 feet north of the Southwest corner of the Lot. Plaintiff then decided to erect a residence on Tract B and requested various building contractors to submit bids for varied work on the contemplated single-family residence over one story in height, and in 1962 applied to a city for a building permit.

On June 6,1962, the plaintiff obtained the building permit and immediately began preparations for construction. The plaintiff removed the trees and shrubbery which had been growing on Parcel B and began the excavation of the Parcel and the installation of the footings. On June 14, 1962, the City notified the plaintiff to stop work in that the permit, issued on June 6, 1962, had been revoked because the land described in the application and permit did not conform to the requirements for minimum lot area as prescribed in the zoning ordinance. On March 4, 1963, the plaintiff filed this suit for declaratory judgment.

A City Planner employed by the City of Chicago testified that from his familiarity with the subject and surrounding property, his expert opinion was that from a City Planning and Zoning point of view, the highest and best use of the subject property is to remain a portion of Lot 5 of record upon which the existing single-family residence now exists. In arriving at his opinion, the City Planner concluded that if Lot 5 of record were divided, it would establish the subject property (Parcel B) as nonconforming to the ordinance, and would also make nonconforming the portion of Lot 5 upon which the plaintiff’s residence is erected. (Parcel A.) The City Planner further testified that plaintiff’s success in dividing Lot 5 into substandard lots would establish a legal precedent to permit other owners to erect houses in violation of the zoning ordinance on substandard lots. In his opinion the proposed use of subject property would adversely affect the surrounding communities of Norwood and Edison Parks.

A real estate appraiser for the City testified that he examined the subject and surrounding properties. He offered his expert opinion that all of the homes in the triangle block would be adversely affected by the plaintiff’s proposed use.

John Jung testified that he is the owner of the property abutting the plaintiff’s property to the east. In 1958, he built a single-family residence at 6144 N. Indian Road and has lived there since. When he bought his property, the subject property to the west (Parcel B) was a vacant piece of ground containing shrubbery and trees. He testified that he bought his land right after the 1957 Comprehensive Zoning Ordinance went into effect and that he checked the zoning ordinance to make certain that no legal building could be built on the lot to his west and was informed that nothing, under the zoning law could be built on the land west of his.

Upon the filing of the complaint the Court referred the cause to a Master In Chancery to take evidence and to report his findings of facts, conclusions of law and recommendations to the Court. Upon the filing of the Master’s report from which the foregoing facts were determined and the objections thereto by the City of Chicago, which stood as exceptions, and having heard oral arguments of the parties, the Court overruled the exceptions and entered judgment affirming the Master’s report in all respects and in particular, that the R2 single-family residence district classification of the Chicago Zoning Ordinance was void in that it purported to deny the plaintiff the right to build a family residence on a lot providing only 3,306 square feet in area; that the plaintiff had a clear legal right to proceed with the construction of such family residence for which the City of Chicago building permit had theretofore been issued; and that the City employees were enjoined from preventing the completion of the said residence provided that the plaintiff complied with all applicable provisions of the Chicago Building Code in force when the permit was issued.

In its effort to reverse the judgment the defendant, City of Chicago, contends that the plaintiff acquired no rights under the building permit issued in violation of the City’s ordinances, and that the City properly revoked the permit; that the presumption of the validity in favor of the Chicago Zoning Ordinance has not been overcome by clear and convincing evidence on the part of the plaintiff that the ordinance is arbitrary and invalid; and that the plaintiff’s proposed use of the subject property fails to comply with the ordinance.

As to the first argument of the defendant, City of Chicago, i. e., that the plaintiff acquired no rights under the building permit issued in violation of the City’s ordinances and that the City properly revoked the permit, the defendant argues that the building permit upon which the plaintiff relies was issued by a City employee acting beyond the scope of his authority and that accordingly the permit was void and conveyed no rights to the plaintiff.

In City of Chicago v. Zellers, 64 Ill App2d 24, 212 NE2d 737, the Court, in sustaining the City’s right to revoke a building permit issued in violation of a zoning ordinance, said:

“The first of these defenses is that the City is precluded from interfering with the completion of the proposed building by virtue of the permit it issued. Ordinarily, the issuance of a permit purports compliance with the City’s zoning ordinances and gives the permittee full authority to proceed with the execution of the approved plans. The right of the property owner to complete construction started on the basis of a building permit has been before the Illinois courts on a number of occasions. Any substantial change of position, expenditure of funds or incurrence of obligation in reliance on a validly issued building permit gives the property owner a vested right to complete his construction and to use the property for the authorized purpose and estops the City from revoking the permit. People ex rel. Nat. Bank of Austin v. Cook County, 56 Ill App2d 436, 206 NE2d 441; Deer Park Civic Ass’n v. City of Chicago, 347 Ill App 346, 106 NE2d 823. Application of this principle presupposes a legal building permit and a substantial change of position incurred in good faith reliance thereon by the property owner. Fifteen Fifty North State Bldg. Corp. v. Chicago, 15 Ill2d 408, 155 NE2d 97; 1 Yokely, Zoning Law and Practice, 2d Ed, §§ 9-5 and 9-6.
“The permit in the present case was found, upon closer scrutiny, to have been wrongfully issued, and the defendant was informed of its revocation before he had incurred any substantial expenditure, obligation or change of position. The defendant suffered little harm and he was not misled.”

The plaintiff here argues that he made substantial expenditures and incurred obligations in reliance upon the permit issued by the City. However, although the plaintiff immediately commenced building preparations upon receipt of the permit, the City of Chicago acted diligently in its effort to revoke the permit and served notice on the plaintiff of its revocation 8 days after its issuance. During this interim period the plaintiff expended approximately $1,600, which included the permit fee, excavation, removal of trees and shrubs, and concrete work for a portion of the footings.

The plaintiff’s evidence that he had incurred contract liability in the amount of $19,354 is not persuasive. He proved payment and work in progress in an amount of less than $1,700 and that in the seven days following the erroneous issue of the building permit. The remainder of his alleged contractual liability he claims was incurred by bids submitted before the permit was erroneously issued. Some of these show his signature of acceptance but there is a lack of evidence that the bidders had been advised of acceptance. There is evidence that plaintiff had premeditated the erection of the house on the 3,306 square feet parcel in violation of the ordinance before the issuance of the permit, when he should have known that no other residence in the block was on a parcel of less than 3,750 square feet. He was not deprived of any opportunity to determine what zoning ordinance might be applicable; nor was he induced by the City to incur any liabilities. He relied upon an invalid permit, issued in contravention of the ordinance. He was not induced to assume obligations by deceit, fraud or misrepresentation of the City or it officers. He must be charged with notice of the want of authority to issue the permit. See J. Burton Co. v. City of Chicago, 236 Ill 383, 86 NE 93, where at page 391 the Court said with respect to contracts :

“This action of appellee was, however, taken on its own responsibility, relying on an invalid permit issued at its own instance without any authority, and was not induced by any action of the City or any of its officers, or even, so far as appears, with their knowledge.”

In such a situation no estoppel in pais permits the plaintiff to continue his illegal construction.

We pass next to the defendant’s allegation that the presumption of the validity in favor of the Chicago Zoning Ordinance has not been overcome by clear and convincing evidence on the part of the plaintiff that the ordinance is arbitrary and invalid. It is clear that a zoning ordinance is presumed to be valid and that the burden is upon the party who attacks the validity to establish by clear and affirmative evidence that it is arbitrary. Martin v. City of Rockford, 27 Ill2d 373, 189 NE2d 280. It is likewise clear that minimum lot area requirements of single-family residence zoning is a valid zoning classification. Reitman v. Village of River Forest, 9 Ill2d 448, 453, 137 NE2d 801; Honeck v. County of Cook, 12 Ill2d 257, 260, 146 NE2d 35; and Galpin v. Village of River Forest, 26 Ill2d 515, 520, 187 NE2d 233.

In the present case the plaintiff owned a lot of record containing 6,700 square feet located in an R2 single-family residence zoning district. The plaintiff, upon obtaining the illegal building permit, sought to erect a second principal building upon the northern 3,306 square feet (Parcel B) of his lot. The erection of a second principal building on the Parcel B of the lot would render the southern portion, Parcel A of the lot, an illegal use by depriving it of the minimum lot area. Accordingly, if the plaintiff were allowed to proceed in the erection of the second principal building, not one but two nonconforming uses would be established in the block.

There are presently 15 homes erected within the triangular block. Fourteen of the homes existed prior to the amendatory ordinance and one home, the Jung home, has been erected since that time. Of the 15 homes erected within the block, 3 are on lot areas exceeding 5,000 square feet and the remaining 12 are on lot areas of at least 3,750 square feet.

From the evidence it appears that Record Lots 1, 3, 4, 5, 6 and 14 exceed 5,000 square feet in area and that record lots 2, 7, 8, 9, 10, 11, 12, 13 contain less than 5,000 square feet, but at least 3,750 square feet. In other words, all the record lots contain the minimum requirement of 3,750 square feet and six of the fourteen contain in excess of 5,000 square feet. It is further clear from the evidence that there is no existing residence within the triangular block on less than 3,750 square feet. On the effective date of the amendatory ordinance the predominant number of lots of record fronting on Indian Road on the South side of the street, between Mason and the intersection of Indian Road and Miami, contained 5,000 square feet, Lot 2 being the only record lot that fronted on Indian Road, between Miami and Mason that did not. Even with these fractionated no residence was on a fractionated lot of less than 3,750 square feet.

Regardless of how the minimum area section of the Zoning Ordinance is interpreted, it is clear that the legislative intent was to establish a minimum lot area requirement of 3,750. square feet per dwelling unit. This legislative intent is not altered merely because of the fact that the particular block in question of which the subject property is a part is an irregular shaped block with lots facing on two streets. Likewise it is clear that to allow the plaintiff to erect a structure he proposes would allow the plaintiff to erect a dwelling unit on a lot far smaller than the minimum lot requirement as prescribed by the ordinance. To hold otherwise would jeopardize the Zoning Ordinance as it applies to all irregular shaped blocks. Likewise to hold otherwise would be to the detriment of those who complied with the original ordinance and those who relied upon its validity and erected structure after the 1957 amendment.

We find no evidence as argued by the plaintiff to indicate that the Zoning Ordinance as applied to the plaintiff is arbitrary and unreasonable. The plaintiff’s reliance on Pringle v. City of Chicago, 404 Ill 473, 89 NE2d 365, which held that a zoning restriction was invalid because the major portion of homes on the same block did not meet the ordinance is not applicable to the present case. In the Pringle case the Court found that the subject property was surrounded and characterized by property used for purposes other than the zoning restrictions sought to be applied.

It is our opinion that the ordinance as applied to the particular property and under the special facts of this case is not arbitrary and unreasonable, but in fact, is a valid enactment to control the density of dwelling units and in this regard is directly related to the public health, safety, morals and welfare. It is further our opinion that the plaintiff’s proposed use of the subject property fails to comply with the ordinance and its legislative intent.

The decree of the Circuit Court of Cook County is therefore reversed and the cause remanded for the entry of a decree in accordance with the views herein expressed.

Reversed and remanded with directions.

GOLDENHERSH and MORAN, JJ., concur.