author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Harry Scott and Leon Walker, Defendants-Appellants.
    Gen. Nos. 51,096, 51,097.
    First District, Third Division.
    October 10, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos and James J. Doherty, Assistant Public Defenders, of counsel), for appellants.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Joel M. Flaum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

Harry Scott and Leon Walker were found guilty of burglary and sentenced to the penitentiary. Trial errors compel a reversal of their conviction.

Police officers, who were investigating a number of burglaries which had taken place on the north side of Chicago, arrested Dale McKinney and James Thompson on March 20, 1965, at 3:30 in the morning in the 5400 block of North Kenmore Avenue. McKinney and Thompson, who lived on the south side of Chicago, were questioned. McKinney gave the officers information which led to the arrest of Scott and Walker later the same morning in their south side homes. The officers went to Scott’s home and then to Walker’s. Walker lived in a small, two-room apartment and was in bed when the police arrived. On the dresser near his bed was a motor vehicle operator’s license bearing the name of Barbara Jean Campbell, 5417 North Kenmore Avenue. Next to the license was a lady’s purse. Walker said he knew nothing about the license or the purse, and a woman who was in the apartment said they were not hers.

Fifteen minutes after Walker’s arrest the officers learned through police sources that the home of Mrs. Campbell had been burglarized on the early morning of March 19th. They brought Mrs. Campbell to their headquarters where she identified the purse as hers and picked Scott out of a lineup as the burglar who awakened her in her home at 3:40 a. m. Walker had been placed in the lineup but McKinney and Thompson had not. In fact, McKinney and Thompson were released before the lineup was held.

Scott and Walker were tried for the Campbell burglary. The case against Scott rested on his identification by Mrs. Campbell, and the case against Walker rested on her property being found in his home and on an oral statement made by him admitting his participation in the burglary. Walker denied making the statement.

McKinney was Walker’s friend and frequently slept at his apartment. It was the defendants’ contention that McKinney was the one who burglarized the Campbell home and that he shifted the blame on them in order to exculpate himself. They presented witnesses who said they saw Mrs. Campbell’s purse in McKinney’s possession on the morning of March 19th. One of these witnesses, a man who shared the same apartment with Walker, testified that before he left for work at 7 a. m. on March 19th McKinney came there with the purse, put it on the dresser and then lay down on the couch.

In his opening statement to the jury a defense attorney said that he intended to prove that McKinney and his companion were burglars, that they had burglar tools on them when arrested and that whatever McKinney told the police was for the purpose of avoiding punishment. Despite this theory of the defense, the court early in the trial improperly limited the cross-examination of the State’s witnesses as to McKinney and twice admonished the jury to disregard any testimony referring to him. As the trial progressed the court relaxed its restriction and permitted the defendants more latitude in developing their theory of the case. At no time, however, did the court revise its prior instruction and even late in the trial, when McKinney testified for the State in rebuttal and denied involvement in the Campbell burglary, his cross-examination was restricted.

Another serious error was the injection into the case of testimony concerning other burglaries supposedly committed by the defendants. Both the prosecution and the defense were guilty of this and each blames the other for starting it. A review of the record shows that the subject was first opened by a witness for the State — a police officer who volunteered on cross-examination that he did not know about the Campbell burglary at the time he arrested Scott and Walker. The inference from this was that they had been arrested for a crime or crimes other than the one for which they were being tried. The prosecution saw to it that this implication was not overlooked. On redirect examination the assistant State’s attorney asked the following questions and the officer made the following answers:

“Q. This information that you testified to on cross-examination, Detective, that was given to you by McKinney. Was this regarding a burglary?
“A. Burglaries.
“Q. Is this why you went to the south side and arrested these gentlemen?
“A. Yes.
“Q. Because of information regarding a burglary?
“A. Burglaries.”

Implication gave way to declaration when a second police officer testified for the State. On direct examination he stated that he questioned Walker relative to numerous burglaries that had taken place in a particular area on the north side and that Walker replied:

“. . . that he had gone up there several times, on various occasions, for the purpose of committing burglaries. ... He related that one of them had transpired within the last two days. However, . . . he refused to continue any further until after he had been viewed by the complainants in these cases.”

On redirect examination the officer said that McKinney gave him specific information about locations involving both Walker and Scott and that Walker corroborated McKinney’s information. On recross examination Scott’s attorney asked him if McKinney had said that Walker and Scott were responsible for the Campbell burglary. The officer answered: “No, he told us they were responsible for numerous burglaries up there.” Walker’s attorney brought out that the only charge placed against him was the Campbell burglary. The prosecutor then asked if other charges might be brought against the two defendants and the officer answered that this was possible.

These are but a few instances of the many references made to other crimes by both the State and the defense. The issue at the trial became distorted and the court finally tried to rectify the situation. As the State’s case neared its end, the court told the jury that the attorneys had brought other burglaries into the case, that these burglaries were not being tried and that the jury was to be concerned only with the burglary on trial. But the court’s warning came much too late. By this time the damage had been done and was beyond repair.

The Assistant State’s attorney also realized the prejudicial nature of the evidence. During his closing argument he blamed the defense for introducing evidence of other crimes by its “continued questioning regarding McKinney” and said if the State had brought it out it would have been reversible error. Four times in his argument he cautioned the jury not to consider the testimony about other burglaries. He did not refrain, however, from detailing certain phases of the damaging testimony before asking the jurors to disregard all such evidence. He reminded them that a police officer testified that “. . . Walker sat down and listed the dates of the burglaries he had committed . . .” and also that Walker’s conduct was “. . . an admission on his part of various burglaries on the north side. . . .”

The general rule is that evidence of the commission of other crimes by an accused is inadmissible unless it is relevant to establish identity, intent, knowledge, motive, a common scheme or design or a fact material to the issue on trial. People v. Cage, 34 Ill2d 530, 216 NE2d 805 (1966); People v. Tranowski, 20 Ill2d 11, 169 NE2d 347 (1960); People v. Scott, 82 Ill App2d 109, 227 NE2d 72 (1967). None of these exceptions to the general rule was pertinent in the present case. The testimony of the defendants’ involvement in other burglaries was reversible error; the State cannot escape responsibility for the major share of the error just because the defense was also to blame.

The defendants’ arrest for crimes disassociated with the one on trial, the information from McKinney which brought about their arrest and their theory concerning him made this a difficult case to try without error creeping in. But error on the doorstep need not be invited inside and entertained. A conference prior to the next trial where ground rules can be laid out might be helpful, as would careful preparation and skillful trial technique by the attorneys.

We also suggest that the defendants be tried separately if the State again intends to use Walker’s oral statement. As related by the police, Walker’s statement detailed the principal role played by Scott in the Campbell burglary. It was neither made in Scott’s presence nor assented to by him and, despite warnings by the court that it should be considered only as to Walker (as was done in the instant case), its use would be prejudicial error. Bruton v. United States, 391 US 123 (1968); Roberts v. Russell, 392 US 293 (1968). See too, People v. Barbaro, 395 Ill 264, 69 NE2d 692 (1946). The error in the present case from the use of Walker’s statement inculpating Scott is not raised on appeal but this was a plain error of which we take notice (Ill Rev Stats 1967, c 110A, § 615 (a)) and is an additional reason why Scott’s conviction must be reversed. The fact that Walker took the stand and that Scott had an opportunity to cross-examine him did not mitigate the error. Walker denied making the incriminating statement; confrontation was therefore meaningless and cross-examination would have been futile.

Because a new trial is in order, we need not comment on other alleged errors save one. Before the trial Walker filed a motion to suppress the evidence found in his apartment. A hearing was held and the motion was denied. Walker contends the motion should have been granted.

The arrest of Walker and the search of his apartment were made without a warrant. A police officer may make an arrest without a warrant if he has reasonable ground to believe that the person arrested has committed a criminal offense. People v. Asey, 85 Ill App2d 210, 229 NE2d 368 (1967). He may make a reasonable search without a warrant if it is incident to a lawful arrest. People v. Brinn, 32 Ill2d 232, 204 NE2d 724 (1965). An informer’s tip may provide the ground for an arrest without a warrant if the officer has reason for placing reliance on the information received. People v. Truelock, 35 Ill2d 189, 220 NE2d 187 (1966).

The reliability of McKinney depended upon the circumstances under which he came into the hands of the police and the content of his information. He was unknown to the police previous to his arrest and his information was not independently corroborated except that Scott was found at the address given by him before Walker was arrested. At the hearing on the motion the officers did not relate fully what McKinney told them and did not describe all the underlying circumstances from which they concluded that his information was reliable. Despite this deficiency, enough evidence was introduced so that the court could determine that the officers had reasonable ground to believe that he was telling the truth. He knew Scott and Walker, told where they could be found and said they had been out on a burglary within the last two days in the area under investigation. There was a credible motive for his revelation — obtaining leniency in his own predicament; a credible reason for his knowledge — his association with those he accused, and credible support for his accusation — the commission of a particular burglary in the neighborhood where a series of burglaries had occurred. Cf.: People v. McKee, 39 Ill2d 265, 235 NE2d 625 (1968). There was probable cause for believing that Walker had committed a criminal offense; his arrest was not unlawful and the seizure of the articles in open view upon his dresser was not illegal. People v. Barbee, 35 Ill2d 407, 220 NE2d 401 (1966); People v. Peak, 29 Ill2d 343, 194 NE2d 322 (1963) ; People v. Durr, 28 Ill2d 308, 192 NE2d 379 (1963); Polk v. United States, 314 F2d 837 (1963); Ellison v. United States, 206 F2d 476 (1953).

The judgments are reversed and the cause remanded.

Reversed and remanded.

SCHWARTZ and SULLIVAN, JJ., concur.


source: Caselaw Access Project

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Lester R. Koczur, Defendant-Appellant.
    Gen. No. 52,531. (Abstract of Decision.)
    First District, Third Division.
    October 17, 1968.
   Opinion by JUSTICE SULLIVAN. Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    In the Matter of the Application of the County Collector for Judgment and Sale Against Lands and Lots Returned Delinquent for Nonpayment of General Taxes for the Year 1960 and Prior Years. On Appeal of Ella Louise Conway, as Mother and Next Friend of Dennis Conway, Vernice Marie Conway, Richard Edward Conway, and Helen Conway, Minors; and Samuel Macklin, Individually and as Executor of the Estate of Helen D. Thompson, Deceased, Petitioners-Appellants, v. Hawthorn, Lane and Company, Respondent-Appellee, and Petronela Srebalus, Wesley Young, Louise Young, and Exchange National Bank of Chicago, as Trustee Under Trust Agreement Dated November 15, 1965, and Known as Trust No. 18408, Illinois Federal Savings and Loan Association of Chicago, Respondents-Appellees.
    Gen. No. 51,968.
    First District, Third Division.
    October 10, 1968.
    Rehearing denied November 15, 1968.

      Benjamin A. Rasky, of Chicago, for appellants.
    Allan L. Blair, A. Edmund Peterson, and Leonard Higley, of Chicago (Allan L. Blair, Leonard Higley, and Bruce M. Buyer, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is an appeal by petitioners from an order entered on October 31, 1966, dismissing their petition under section 72 of the Civil Practice Act to vacate an order entered on December 7, 1964, directing the issuance of a tax deed. Petitioners contend that because Helen Conway, the minor daughter of Ella Louise Conway, and Samuel Macklin were not given notice of the tax deed proceedings and because no guardian ad litem was appointed for the minor parties to the proceedings, the tax deed order should have been vacated. The facts follow.

The property involved is located at 7217 South Perry Avenue in Chicago and is improved with a two-story brick building. It was owned by Helen Thompson and Eugene Tate as tenants in common until Mrs. Thompson died in 1959. By her will she devised a life estate in her one-half interest to Ella Conway and the remainder to Ella’s children, Dennis, Ver nice Marie and Richard Edward, but not the before-mentioned Helen Conway. She also bequeathed Five Dollars to Samuel Macklin and named him executor of her estate. Tate was a party to the tax proceedings, but has not appealed.

On February 5, 1962, the County Collector filed an application for a judgment and order of sale for delinquent real estate taxes on the property. The order was entered on February 16,1962, and on March 22,1962, the property was sold at public auction to one M. Andrew. Pursuant to section 263 of the Revenue Act the period of redemption was extended to November 30, 1964. (Ill Rev Stats, c 120, § 744 (1967).) On August 6, 1964, M. Andrew filed a petition for the issuance of a tax deed and thereafter served notice pursuant to sections 263 and 266 of the Revenue Act on all the petitioners except Helen Conway (who was not named as a child of Ella Conway in the estate of Helen Thompson) and Samuel Macklin, whom it is alleged the process server was unable to locate after diligent inquiry. On November 30, 1964, M. Andrew sold her certificate to Hawthorn, Lane and Company.

On October 18, 1966, the petitioners filed their petition under section 72 seeking to vacate the tax deed proceedings. They alleged that no notice of such proceedings had been given to Helen Conway or Samuel Macklin, that no guardian ad litem had been appointed for the four minor owners of the property, and that Hawthorn, Lane and Company, the respondent-appellee, had given a fictitious address for Macklin in order to deliberately conceal notice of the proceedings from him. On October 31, 1966, on respondent’s motion the court dismissed the petition.

In a long line of cases the Illinois Supreme Court has repeatedly held that in a tax deed proceeding section 72 may not be used to put in issue for the second time questions previously passed upon in the original proceedings, except where the record establishes a prima facie case of fraud. Cherin v. The R & C. Co., 11 Ill2d 447, 143 NE2d 235; Southmoor Bank & Trust Co. v. Willis, 15 Ill2d 388, 155 NE2d 308; Young v. Madden, 20 Ill2d 506, 170 NE2d 551; Dahlke v. Hawthorne, Lane & Co., 36 Ill2d 241, 222 NE2d 465; Zeve v. Levy, 37 Ill2d 404, 226 NE2d 620. In the instant case the trial court expressly found that all notices required by law had been given and that Hawthorn, Lane and Company had complied with the required provisions. The sole issue for our determination therefore is whether the tax deed was procured by fraud.

The only allegation of fraud made in the petition is the failure to procure personal service on Samuel Macklin. In their brief the petitioners contend that the affidavits of the process servers show that they did not make due and diligent inquiry to ascertain the correct address of Macklin and that such action amounts to fraud. One of the process servers testified at the tax deed proceedings that he had made inquiries as to Macklin’s address in the neighborhood in which Macklin had once lived, that he searched the Chicago and suburban telephone directories for his address and that after that proved unsuccessful, he had mailed a notice to Macklin by registered mail. That testimony remains unchallenged. The mere fact that respondent’s agent could have made a more diligent search does not establish fraud. To prove the fraud required to sustain a petition under section 72 to vacate a tax deed order, the petitioner must establish a wrongful intent or pattern of deception. Dahlke v. Hawthorne, Lane & Co., supra; Zeve v. Levy, supra.

It is admitted that Macklin had no interest in the subject property other than as executor of the estate of Helen Thompson. As such he was not interested in the real estate within the meaning of the provisions requiring notice in tax deed proceedings. In re Estate of English, 24 Ill2d 357, 181 NE2d 111. The Probate Act was amended giving executors a new interest in the real property of an estate, but that change only affects estates of persons dying after July 1, 1965. Ill Rev Stats c 3, §§ 209-210, 219a, 225 (1967). It is also admitted that personal service was had on Eugene Tate, owner of a one-half interest in the property, Ella Conway and her husband, the three minors who were listed in the estate of Helen Thompson as the children of Ella Conway, Serenia Booth, a tenant in the building, and the Cook County Department of Welfare. It is not credible that those, the most interested parties, would be notified and the proceedings be fraudulently concealed from Macklin.

Petitioners also contend that it was error to proceed to trial until it appeared of record that a guardian ad litem had been appointed for the minors. None of the cases cited by petitioners in support of their contention were actions brought under the Revenue Act. By its enactment of section 266 of the Revenue Act of 1939 the legislature intended to render tax titles incontestable except by direct attack, unless the circumstances were such as to warrant the application of section 72 of the Civil Practice Act or unless the order directing the issuance of the deed was utterly void. Shapiro v. Hruby, 21 Ill2d 353, 172 NE2d 775; Stanley v. Bank of Marion, 23 Ill2d 414, 178 NE2d 367; Freisinger v. Interstate Bond Co., 24 Ill2d 37, 179 NE2d 608.

To warrant the application of section 72 in a tax proceeding, the petitioner must allege and prove fraud. Dahlke v. Hawthorne, Lane & Co., 36 Ill2d 241, 222 NE2d 465; Zeve v. Levy, 37 Ill2d 404, 226 NE2d 620. No fraud was shown in the instant case. If the petition is to be sustained it must be on the ground that failure to appoint a guardian ad litem rendered the order void.

An order is rendered void not by reason of mere error or impropriety, but by lack of jurisdiction by the issuing court of either the subject matter or the necessary parties. People v. O’Keefe, 18 Ill2d 386, 164 NE2d 5; Farlow v. Oliver, 29 Ill2d 493, 194 NE2d 262. A tax deed proceeding is against the land, and from that the respondent argues that the minors are technically not necessary parties to the proceeding and hence their competency is immaterial to jurisdiction. In Urban v. Lois, Inc., 29 Ill2d 542, 194 NE2d 294, the court said (p 546):

“We turn first to the basic question of jurisdiction and the office of section 72. We think it clear that the entire tax-sale proceeding is one in rem rather than in personam. (People ex rel. Astle v. Chicago and Eastern Illinois Railway Co., 315 Ill 536, 539; People ex rel. Thaxton v. Coal Belt Electric Railway Co., 311 Ill 29, 33.) It is the jurisdiction over the land itself, acquired in the original application for judgment and order of sale that gives to the county court the power to act. (Shapiro v. Hruby, 21 Ill2d 353, 358; Cherin v. The R. & C. Company, 11 Ill2d 447, 454.)”

In Hanberg v. Morgan, 263 Ill 616, 105 NE 720, the Supreme Court held that the failure to appoint a guardian ad litem for a minor in an inheritance tax case “was a mere irregularity and would not subject the order of the county judge to collateral attack.” That was done notwithstanding the fact that the appointment of a guardian ad litem is required under the inheritance tax statute. Ill Rev Stats, c 120, § 400 (1967). Such is not the case with respect to a tax deed proceeding brought under the Revenue Act of 1939. That act contains no requirement that a guardian ad litem be appointed for a minor and therefore a fortiori the failure to appoint a guardian in the instant case would not subject the tax deed order to collateral attack.

The trial court properly dismissed the petition to vacate the tax deed order and the judgment is accordingly affirmed.

Judgment affirmed.

DEMPSEY, P. J. and SULLIVAN, J., concur.


text:
    The People of the State of Illinois on the Relation of Isak Gustafson, Western National Bank of Cicero, as Trustee Under Trust 2034, and Midlothian Terrace Apartments, Inc., an Illinois Corporation, Plaintiffs-Appellees, v. City of Calumet City and John Daisy, Defendants-Appellants.
    Gen. No. 52,642.
    First District, Third Division.
    October 17, 1968.

      Posanski, Johannsen, Krohn & Jacobs, of Chicago, for appellants.
    Arthur B. Sachs, of Chicago (M. Prial Curran, of counsel), for appellees.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiffs, owners of unimproved real estate in the City of Calumet City, filed suit for a writ of mandamus (Ill Rev Stats 1965, c 87, § 1 et seq.) to compel the defendant city and its building commissioner to issue building permits to them. They alleged that under a 1947 zoning ordinance, their parcels of real estate were located in a class “D” residence zone. This type of district permitted “Dwellings arranged and designed for use of more than one family.” The plaintiffs claimed that in reliance upon the zoning regulation, they had purchased real estate within the class “D” district and, after applying for and obtaining building permits, commenced to develop the property with multifamily dwellings.

Later, in the Spring of 1967, one of the plaintiffs applied for additional permits, but the applications were denied by the building commissioner on the ground that a petition had been filed with the board of zoning appeals to amend the zoning regulation of the plaintiffs’ property and the property in its immediate vicinity. The particular plaintiff then filed a mandamus petition asking the Circuit Court to direct the city and the commissioner to issue the permits. In July 1967 an order for such a writ was entered by the court. The order was not appealed and the permits were issued.

Thereafter, on August 3, 1967, the plaintiffs applied for more permits in order to construct one eight-flat and some three and four-flat buildings. Although the construction of such buildings was permitted under the existing class “D” zoning regulation, the commissioner refused to issue the permits. As a result, the plaintiffs filed another petition for a writ of mandamus. This petition — which is the present suit — was filed on August 10th.

On August 22nd the defendants answered the petition. They asserted that on August 21st the City Council of Calumet City adopted an ordinance which changed the zoning classification of the area in which the plaintiffs’ property was located from class “D” to class “B,” and that construction of multifamily dwellings was not permitted in a class “B” area.

The court ruled for the plaintiffs because:

“. . . at the time of . . . [their] application for building permits and at the time of filing the Petition herein for Mandamus, [they] had a clear legal right under the existing zoning regulations for the issuance of building permits . . . and the ordinance passed on August 21, 1967 . . . cannot abrogate the rights of the Petitioners.”

The writ of mandamus was ordered on September 1,1967.

In late September new counsel entered an appearance for the defendants. A post-trial motion was filed which sought to create defenses to the action which had neither been pleaded in the answer nor advanced at the trial. One of these was that a nonplaintiff had signed the applications for the building permits. Another was that the applications did not comply with the code requirements of the city in that verified specifications or plans in duplicate were not attached to the applications. The post-trial motion also elaborated on the basis of the zoning ordinance amendment, explaining that the municipal facilities such as water, sewer and recreation — in an area allegedly developed primarily for single-family dwellings — were not adequate to support a large number of multiple family dwellings. The post-trial motion was denied.

On appeal the defendants contend that the mandamus petition was insufficient to sustain the relief granted and that the plaintiffs had no vested right in the continuation of the existing ordinance.

The first contention was not properly raised in the trial court and need not be considered. The arguments that the plaintiffs did not apply for the permits and that the applications were not accompanied by verified specifications or plans in duplicate were raised for the first time in the post-trial motion wherein the defendants sought leave to amend their answer. One purpose of a post-trial motion is to give a trial court an opportunity to correct its errors. The court could not err on matters never called to its attention. Moreover, the pleadings could not be amended after judgment to raise the new issues. A complaint or answer can be amended after judgment only to conform them to the proof. Ill Rev Stats 1965, c 110, § 46(3); People ex rel. Tinkoff v. Northwestern University, 333 Ill App 224, 77 NE2d 345 (1947). In addition to these factors, the defendants’ answer admitted the allegation in the petition that the plaintiffs applied for the permits.

As to the second contention, the defendants argue that the amended ordinance was in effect ten days prior to the hearing in court; that there is no vested right in the continuance of a law; that where a law has been changed pending an appeal a case must be disposed of by the court upon the law as it then exists, and that since the amended ordinance was not shown to be void, the court should have followed the ordinance as amended. The defendants concede that they do not have a right to arbitrarily refuse or unreasonably delay the issuance of a permit but contend that the issuance may be delayed when an ordinance is under consideration which would prohibit the issuance of the permit.

Such a delay was approved in Chicago Title & Trust Co. v. Village of Palatine, 22 Ill App2d 264, 160 NE 2d 697 (1959). In Palatine, the plaintiffs applied for a permit to construct a gasoline station — a use permissible under the existing zoning ordinance. About three weeks later the village passed an ordinance which prohibited such use of the property. On the basis of the amended ordinance the building commissioner refused to grant the application. The plaintiffs filed a petition for a writ of mandamus contending that the rights of the parties became fixed on the date they applied for the permit and that the subsequent ordinance had no bearing upon their right to its issuance. The writ was allowed. On Appeal by the village, this court reversed. We noted that the amended ordinance had been under consideration by the village zoning board prior to the plaintiffs’ application, and held that a permit may be delayed when an amendment to an ordinance is under consideration which would prohibit the permit, and that if the amendment is passed the permit may be refused.

The principles mentioned above are applicable to the present case. In this case a petition had been filed to amend the zoning ordinance prior to the plaintiffs’ application for the permits in question. The petition, filed in the Spring of 1967 or before, sought to rezone the area in which the plaintiffs’ property was located. The petition was under consideration by the zoning board and had not been disposed of when the plaintiffs filed their application on August 3, 1967. Less than three weeks later a special meeting of the city council was called to resolve the matter and the zoning ordinance was amended despite the contrary recommendation of the zoning board. The amendment was not shown to be void; the time between the request for the permits and the amendment to the ordinance was not unreasonable and the reason for the delay was not arbitrary.

However, the right of a municipality to reject a previously-applied-for permit on the ground of a subsequent change in zoning is subject to a well-recognized exception:

“. . . any substantial change of position, expenditures, or incurrence of obligations occurring under a building permit or in reliance upon the probability of its issuance is sufficient to create a right in the permittee and entitles him to complete the construction and use the premises for the purposes originally authorized irrespective of a subsequent zoning or change in zoning classification.” Fifteen Fifty North State Building Corp. v. City of Chicago, 15 Ill2d 408, 155 NE2d 97 (1959); People ex rel. National Bank of Austin v. Cook County, 56 Ill App2d 436, 206 NE 2d 441 (1965).

The remaining issue and the crux of the case as we see it, is whether the plaintiffs come within this exception. In their mandamus petition they alleged that in reliance upon the zoning regulations, they purchased the property and embarked upon a program of developing it with multifamily buildings. They further alleged that in the process they expended a substantial amount of money for preliminary costs, promotion and advertising. No proof of their expenditures or incurrence of obligations in reliance on the continuation of the existing ordinance was presented at the hearing. It is their position that there was no need for such proof because of a judicial admission made by the defendants.

At the hearing the plaintiffs’ attorney told the court that his witnesses were ready to testify but he summarized the facts and the history of the controversy in order, as he said, “to save a lot of your time.” His statement focused on the events of the zoning change: the application for the permits, their denial, a special council meeting and the adoption of the amendment contrary to the recommendations of the zoning board. He ended his statement with these words:

“I truly question, with this summary . . . and upon the answer itself, admitting that at the time we filed our permits the law was a T)’ classification permitting this, that we really need to waste your Honor’s time with a presentation of evidence . . . because I think based on the law alone and the admitted facts we are entitled to it [the mandamus writ].”

It is apparent from this conclusion that the attorney thought that the plaintiffs had a vested right in the original ordinance irrespective of the later amendment. When he referred to “the admitted facts,” he meant the circumstances preceding the amendment — facts which had been admitted in the defendants’ answer. He could not have meant the plaintiffs’ expenditures and obligations for the allegation pertaining to them had not been admitted in the answer. The answer stated that the defendants had insufficient knowledge or information to form a belief as to this allegation, that they could neither admit nor deny it but demanded strict proof.

The judge responded that he was familiar with the case because he had handled one portion of it (the mandamus order issued in the Spring of 1967). He commented on the events surrounding the zoning amendment and also on the purchase of the property and its development. He observed that irreparable damage would be done to the builder who bought the property in reliance on a particular classification if the city were allowed to pass a retroactive ordinance after an application was made for building permits and a lawsuit filed. After stating, “I will have the writ of mandamus issued,” the judge asked a question which led to what is claimed to be the binding admission which justified the failure to hear evidence:

The Court:
“[T]here is no dispute as to facts are [sic] there?”
Defendants’ Attorney:
“Well, Judge, Mr. Sachs [plaintiffs’ attorney] made his opening statement. I assume he was discussing his argument rather than his testimony.”
The Court:
“I read your answer, and in your answer, you don’t deny these things.”
Defendants’ Attorney:
“We don’t deny any of the facts as alleged, because these are the circumstances.”

The defense attorney’s admission can be interpreted two ways: it can be taken as a retrospective reference to those allegations admitted in the defendants’ answer or it can be taken as a contemporaneous admission of every factual allegation in the plaintiffs’ petition, notwithstanding what was said in the answer. The first interpretation is supported by the attorney’s reference to the plaintiffs’ opening statement and by his reply to the judge’s observation that the answer had been read and “these things” were undenied. The attorney’s admission could well have been limited to the circumstances asserted in the opening statement apropros to the zoning change and to the “things” he knew were undenied in the answer. On the other hand, the second interpretation is supported by the fact that the judge had spoken of the hardship suffered by the builder before asking if there was a dispute as to the facts, and by the attorney’s generalization: “We don’t deny any of the facts as alleged.”

Although it appears that the court was under the impression that all allegations were undenied including the plaintiffs’ expenditure of substantial funds, and had announced his decision for the plaintiffs before the admission was made — the admission, if considered as applying to every allegation, would substitute for proof and would cure the error resulting from the absence of proof. The admission, however, was ambiguous and it would not be fair to the defendants to bind them by it.

The extraordinary writ of mandamus must be predicated on the clear right of the petitioner to the relief requested. Houswerth v. Seidel, 47 Ill App2d 112, 197 NE2d 271 (1964). Since the admission permits conflicting inferences which are equally reasonable, the cause will be remanded for trial on the issue of the plaintiffs’ expenditures and obligations in relying upon the original ordinance. If they can prove that the obligations they incurred and the expenditures they made come within the standards set by our courts (see e. g., People ex rel. Nat. Bank v. Cook County, 56 Ill App2d 436, 206 NE2d 441 (1965)) the writ should issue. If they cannot, they are not entitled to the writ because their other allegations, although admitted, are not sufficient to justify its issuance.

Reversed and remanded with directions.

SCHWARTZ and SULLIVAN, JJ., concur.


text:
    City of Chicago, a Municipal Corporation, Plaintiff-Appellant, v. Edward Bah and Helen Bah, a/k/a Edward Bak and Helen Bak, Defendants-Appellees.
    Gen. No. 53,108. (Abstract of Decision.)
    First District, Third Division.
    October 18, 1968.
    Rehearing denied November 15, 1968.
    Raymond F. Simon, Corporation Counsel, of Chicago, by Edmund Hatfield (Marvin E. Aspen, Edmund Hatfield, Assistant Corporation Counsel, of counsel), for appellant; Arvey, Hodes & Mantynband, Jerome T. Burke, and Richard J. Troy, of Chicago, for appellee.
   Opinion by JUSTICE SCHWARTZ. Not to be published in full.


author: EBERSPACHER, P. J.

text:
    Alton Banking & Trust Company, an Illinois Corporation, Trustee for the Estate of Herman F. Luer, Deceased, and Alton Banking & Trust Company, of Alton, Illinois, Administrator with Will Annexed, of the Estate of Carl A. Luer, Deceased, PlaintiffsAppellants, v. Minnie Luer, Dorothy L. Harms, as Trustees Under the Will of William J. Luer, Deceased, Minnie Luer, Dorothy L. Harms, G. G. Mihill and David L. Saylor, II, Defendants-Appellees.
    Gen. No. 67-114.
    Fifth District.
    October 25, 1968.
    O’Neill & O’Neill, of Alton, for appellants.
    Jack McDonald, McDonald & Strickland, of Carrollton, and John T. Roach, of Alton, for appellees.
   EBERSPACHER, P. J.

This is a chancery case brought in the Circuit Court of Madison County seeking to have certain notes and mortgages executed by a corporation in favor of the defendants set aside, and plaintiffs be awarded a first and prior lien against all assets which secured such notes and mortgages. The court entered judgment denying the relief sought by the plaintiffs and this appeal was taken.

The relevant facts as may be gleaned from the testimony, exhibits and stipulations are as follows:

On January 3, 1944, Luer Bros. Packing & Ice Co., an Illinois Corporation, had authorized capital of Five Hundred Twenty Five Thousand Dollars ($525,000) consisting of 2,100 shares of seven percent (7%) cumulative preferred stock and 3,150 shares of common stock, each having a par value of One Hundred Dollars ($100). The stock was owned in practically three (3) equal parts by three brothers: William J. Luer, Carl Luer, and Herman F. Luer. On January 3, 1944, Herman F. Luer and Carl A. Luer sold all of the shares of preferred and common stock of the corporation, which they owned, to the corporation, and in consideration the corporation agreed to pay the sum of Three Hundred Forty Thousand Two Hundred and No/100 Dollars ($340,200), as follows: Forty-nine Thousand Five Hundred and No/100 ($49,500) was paid in cash on that date, and, further, the corporation delivered to Carl and Herman F. Luer a series of seventeen (17) notes, executed by the corporation, numbered 1 through 17, aggregating Two Hundred Ninety Thousand Seven Hundred and No/100 Dollars ($290,700), one of such series being payable to the order of Herman F. Luer and the other to the order of Carl A. Luer, each note in each series being dated January 3, 1944, being for the sum of Eight Thousand Five Hundred Fifty and No/100 Dollars ($8,550), and bearing interest at the rate of three percent (3%) per annum, payable semiannually, first note in each series being numbered one (1), maturing January 3, 1948, and the balance of the notes in each series maturing in numerical order, one on January 3 of each year thereafter until 1964, when the last of the notes matured.

Following the transaction full ownership and control of the corporation was then in the third brother, William J. Luer.

Note numbered 1 in each series was paid in 1945. Two more notes in each series, being notes numbered 2 and 3, were paid in 1946. After the death of William J. Luer which occurred in 1946, the corporation paid three more notes in each series, being notes numbered 4, 5, and 6, during the year of 1947, two notes in each series, being notes numbered 7 and 8, during the year 1948, and two more notes in each series, being notes numbered 9 and 10, maturing January 3, 1956 and January 3, 1957, during the year 1953. Subsequent to the transaction complained of, the corporation paid note numbered 11 in each series, maturing January 3, 1958, and paid the interest accruing upon the balance of said notes up to January 3, 1960.

Herman F. Luer died on August 20, 1952, naming the plaintiff, Alton Banking & Trust Co. as Trustee of his estate.

Carl A. Luer died on November 19, 1965, a resident of the State of Florida. The plaintiff, Alton Banking & Trust Co. was appointed Administrator with Will annexed for the Estate of Carl A. Luer.

During the later part of 1957 and for some time prior thereto the corporation was authorized to issue 2,500 shares of stock consisting of 750 shares of seven percent (7%) cumulative preferred stock of par value of $100 per share and 1,750 shares of common stock of par value of $100 per share, of which 750 shares of the 7% cumulative preferred stock and 1,098 shares of the common stock were actually issued and outstanding. The defendants were the owners of all the outstanding shares as follows:

Owner Preferred Common Stock Stock
Minnie Luer and Dorothy L. Harms, as Trustees Under the Will of William J. Luer 64 896
Minnie Luer, Individually 410 26
Dorothy L. Harms, Individually 263 16
David L. Saylor, II 13 145
G. G. Mihill 15

The evidence further revealed that on December 27, 1956, a conference was held at the Alton plant between George H. Suelthaus, an attorney and the Secretary of the corporation at the time, Dorothy Luer Saylor, the President, G. G. Mihill, the Vice-president, and Norman Brammell, a business consultant specializing in the packing house industry, who had been employed to manage and supervise the business; that as a result of the conference Mr. Suelthaus proceeded to familiarize himself with all of the facets of the operation; that he found that the corporation had a loss pattern for the past year and one-half; that its cash position had been weakened by the expenditure of some $100,000 during the past year for modernization of its sausage unit; that economies would have to be effected, including the termination of Mr. Brammell’s services due to the expense involved; and that the labor situation at the plant was the major reason for the corporation’s inability to operate on a profitable basis.

Mr. Suelthaus testified that on February 11, 1957, the corporation terminated the services of Mr. Brammell; that at about the same time, the Office Manager, who had been employed through Mr. Brammell, tendered his resignation; that a replacement for the Office Manager was found through Peat, Marwick, Mitchell & Co., the corporation’s auditors, in the person of Mr. Paul Branding, a certified public accountant; that after interviewing a number of applicants for the office of Plant Manager, Mr. Grover Foster, who had been employed in the packing house industry for many years, was selected as the best qualified man available for the office; that despite the changes in management and numerous economies effected, the corporation continued to lose money; that at a special meeting of the Board of Directors held on September 26, 1957, it was decided to employ the law firm of Moller & Talent, of St. Louis, Missouri, to negotiate with the labor union representing the employees which had previously given notice that its contract would expire October 30, 1957, and that it would expect higher wages and greater fringe benefits; that these attorneys reported that the union was not willing to make any concessions and about October 15, 1957, it was decided to stop killing, to liquidate the perishable inventory and to make efforts to obtain a purchaser of the business by means of the purchase of all the outstanding stock; and that on November 1, 1957, the plant was put strictly on a standby basis, with Mr. Branding being put in charge of the plant and nothing but the sales force and such employees as were required to maintain the cooling system and the other essential equipment being retained on the payroll.

Mr. Suelthaus also testified that on or about November 9, 1957, Mr. Harry Munson, former Officer Manager, contacted him advising that he and his associates, Gerald Moss and William Drake, were interested in purchasing the plant and requested that he get in touch with their attorney, Mr. Ralph Curry, of St. Louis, Missouri; that he and Mr. Curry then negotiated the sale of the stock; that he first offered to sell the stock at book value but his offer was rejected; that Mr. Curry advised him that his clients would not be interested unless a plan could be worked out which would enable the corporation to acquire all the outstanding preferred and common stock and provide a minimum of $100,000 in new cash for operating capital; and that their subsequent negotiations led up to the agreement of November 24, 1957, which was drafted by them jointly in his office.

This agreement, with certain minor modifications agreed to prior to December 6, 1957, in addition to the provisions contained therein for the warranties and conditions which would normally be expected under like circumstances, provided that in consideration of the Second Parties, Harry Munson, Gerald Moss, and William Drake, subscribing or presenting subscriptions of 1500 shares of stock of the corporation at $100 per share, of which $100,000 was to be paid in cash and the balance in 30 days, First Parties, the defendants herein, agreed to sell the corporation (1) the 750 shares of preferred stock which they owned at $100 per share, of which $50,000 was to be paid in cash and the balance of $25,000 was to be evidenced by note secured by first deed of trust on the warehouse building, and (2) the 1098 shares of common stock which they owned for $209,484.01, or approximately $190.79 per share, all to be evidenced by five promissory notes of the corporation, secured by first deed of trust on the principal plant building and chattel mortgage on the machinery and equipment. Second Parties were to have until December 6, 1957, in which to elect to consummate the agreement. The agreement, as so modified, was consummated at a special meeting of stockholders and directors held on December 6, 1957. At the special meeting of December 6, 1957, Munson, Moss, and Drake presented subscriptions for the 1500 shares of the corporation’s stock at a price of $150,000, of which they paid $100,000 in cash and the balance within the specified 30 days, and that in due time, the defendants sold the corporation the 750 shares of preferred stock which they owned for $75,000, of which $50,000 was paid in cash and the balance of $25,000 was evidenced by the corporation’s promissory note, secured by first deed of trust on the warehouse building, and the 1098 shares of common stock which they owned for $209,484.01, all evidenced by five promissory notes of the corporation, secured by first deed of trust on the principal plant building and chattel mortgage on the machinery and equipment.

Attached to the said agreement was a financial statement containing a balance sheet of the corporation as of November 2, 1957, a copy of which was offered in evidence by plaintiffs as Plaintiffs’ Exhibit 1-A. The witness, Paul Branding, testified that he was a certified public accountant; that he had been employed by the corporation as office manager and comptroller, that his duties as comptroller were to maintain all books of original entry, keep the general ledger, and be responsible for payrolls, payables, purchases, etc.; that in carrying out such duties he had become familiar with the books and records of the corporation; that he had personally prepared this exhibit; that it truly reflected the financial condition of the corporation as of the date mentioned therein as shown by its books and records; and that said exhibit had been prepared upon the same accounting principles as used previously by the firm of Peat, Marwick, Mitchell & Co. In addition, Mr. Ralph Curry testified that he was both an attorney and an active certified public accountant; that he had made an audit of the books and records of the corporation; that from such audit he had found that the balance sheet of November 2, 1957, truly and correctly reflected the financial condition of the corporation as of that date. This exhibit shows that as of November 2, 1957, the corporation had $333,943.57 in current assets, including $206,-120.42 in cash on hand and in banks, as against total liabilities of $258,766.64, including the long-term notes of plaintiffs, and had net assets of $472,041.78, including an earned surplus of $287,241.28.

The witness Ralph Curry also testified that he had personally prepared the balance sheet of December 6, 1957, offered in evidence by plaintiffs as Plaintiffs’ Exhibit 13; that such balance sheet was prepared in the ordinary course of business and truly and correctly reflected the financial condition of the corporation on that date as shown by its books and records after giving effect to the stock purchased by the new stockholder group on December 6, 1957; and that on that date the corporation had current assets, including investments and prepaid expenses, of $329,619.88, of which $225,335.-54 was cash on hand and on deposit, as against current liabilities of $65,166.85, including $17,100 to cover plaintiffs’ two notes due January 3, 1958, and $16,180.65 to cover local taxes, and had net assets of $311,268.87 including an earned surplus of $161,268.87.

On the 28th day of April, 1960, Luer Bros. Packing & Ice Company, an Illinois corporation, was duly adjudged a voluntary bankrupt. Thereafter, plaintiffs filed their respective claims as general creditors in the bankruptcy proceedings, premised on the aforesaid promissory notes, and on final distribution made December 4, 1961, received individual payments of $25,375.31, representing 49.46% of their respective claims. This left a balance due on each series of notes of $25,924.69, or a total of $51,849.28, with interest from January 3, 1960.

After hearing the evidence and considering the briefs filed by the respective parties the trial court entered an Order which stated in part:

“That as shown in the exhibits introduced by plaintiffs, being Plaintiffs’ Exhibits 1-A and 3 (sic), the corporation was solvent to the extent that it could acquire its own shares under the conditions as set forth in Chapter 32, Section 157.6, Illinois Revised Statutes, 1957. The aforesaid exhibits disclosed an earned surplus of $287,241.78, and net assets of the company of $472,041.78. These amounts exceed the sum paid by the corporation for the purchase of defendants’ shares of stock;
“That although each party urges equity and the concept of the clean hands doctrine, the one against the other, the plaintiffs in regard to the manner of the operation of the business by the defendants, the payment of dividends and salaries, and so forth, and the defendants in the manner in which the corporation purchased the stock held by Herman F. Luer and Carl A. Luer in 1944, this need not be considered by the Court inasmuch as the Court finds that the defendants have in all respects complied with the statute and have committed no fraud, actual or constructive, upon the plaintiffs.
“The end result of the sale of the defendants’ interest in the Luer Bros. Packing & Ice Company was their having security for the payment of the stock formerly owned by them and the plaintiffs remained in an unsecured creditor status, that is, the same status which existed on January 3, 1944, when Herman F. Luer and Carl A. Luer sold their shares of preferred and common stock to Luer Bros. Packing & Ice Company. . . .
“Accordingly, It is Ordered, Adjudged and Decreed that the relief prayed by the plaintiffs’ Complaint be and the same is hereby denied.”

In their effort to set aside the notes and mortgages the plaintiff urges here as in the trial court that it is the duty of the majority stockholders to protect the minority stockholders and also the creditors of a corporation, and that a corporation has the responsibility in the disposition of its assets to protect parties with valid claims. The plaintiff further argues that the directors of a corporation are liable to the creditors of the corporation for the distribution of corporate assets while the corporation is insolvent or for the acts that reduce the net assets of a corporation below its stated capital. In this regard the plaintiff has cited for our consideration the cases of Robb v. Eastgate Hotel, 347 Ill App 261, 106 NE2d 848 (1952); Pepper v. Letton, 308 US 295, 84 L Ed 281 (1939).

As general principles of law we have no quarrel with the cases cited by the plaintiff. However, in our opinion their applicability is misplaced. In the present case it was not the majority of the stockholders but all of the stockholders acting in concert. Likewise, contrary to the assertion that the corporation was insolvent at the time of the transaction the evidence is uncontradicted that the net assets of the corporation immediately prior and after the transaction were $472,041.78 and $311,268.87, respectively. The net assets were not reduced below the stated capital by the transaction.

The power and restriction of a corporation to acquire its own shares is provided for in section 157.6 of The Business Corporation Act, c 32, § 157.6, Ill Rev Stats 1957. The pertinent parts of this section provide:

“Power of corporation to acquire its own shares. A corporation shall have power to purchase, take, receive or otherwise acquire., hold, own, pledge, transfer, or otherwise dispose of its own shares, provided that it shall not purchase, either directly or indirectly, its own shares when its net assets are less than the sum of its stated capital, its paid-in surplus, any surplus arising from unrealized appreciation in value or revaluation of its assets and any surplus arising from surrender to the corporation of any of its shares or when by so doing its net assets would be reduced below such sum. 66
“No purchase of its own shares shall be made at a time when the corporation is insolvent or when such purchase would render the corporation insolvent.” As amended by act approved July 9,1957.

This section in general has been interpreted to provide that the purchase of a corporation’s own shares may be made out of earned surplus and prohibits a corporation from purchasing its own shares under any circumstances when it is insolvent. Precision Extrusions, Inc. v. Stewart, 36 Ill App2d 30, 183 NE2d 547 (1962).

The plaintiff offered the only evidence in the record as to the earned surplus of the corporation on the date of the transaction. That evidence was that the earned surplus was $287,241.78. The total purchase price for the stock was $284,484.01 and was clearly within the authority of the corporation.

The fact that the defendants obtained security in the sale of their shares through the mortgages and deeds of trust does not detract from their position. There is no evidence in the record that the defendants anticipated the eventual bankruptcy of the corporation. In fact, the evidence was that the corporation was operative and solvent prior to and after the transaction. We concur with the finding of the trial court to the effect that the defendants have in all respects complied with the statute and have committed no fraud, actual or constructive, upon the plaintiffs.

Accordingly, the judgment of the Circuit Court of Madison County is affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.


author: GOLDENHERSH, J.

text:
    People of the State of Illinois, Plaintiffs-Appellees, v. Omer Berndt, Defendant-Appellant.
    Gen. No. 68-55.
    Fifth District.
    October 31, 1968.
    Conn & Clendenin, of Sparta, and William A. Schuwerk, of Chester (David N. Conn and William A. Schuwerk, of counsel), for appellant.
    William B. Starnes, State’s Attorney of Randolph County, of Chester (Charles H. Stegmeyer, Assistant State’s Attorney, of counsel), for appellees.
   GOLDENHERSH, J.

In an indictment returned in the Circuit Court of Randolph County, defendant, Omer Berndt, together with two other defendants, was charged, in Count I, with the crime of Burglary (c 38, § 19-1), in Count II, with the crime of Theft (c 38, § 16-1 (a)), and in Count III, with the crime of Theft (c 38, § 16-1 (d) (3)), (Ill Rev Stats 1965). In a jury trial he was acquitted on Counts I and II, and convicted on Count HI. The trial court denied a post-trial motion and sentenced him to not less than one (1) nor more than five (5) years in the Illinois State Penitentiary.

As his first ground for reversal defendant contends that Count HI of the indictment is fatally defective in that it fails to allege the ownership of the stolen property.

Each count of the indictment charges a separate offense, and must allege, or incorporate by reference to some other count, the averments necessary to charge an offense under the pertinent statute. People v. Nelson, 399 Ill 132, 77 NE2d 171.

The ownership of the property allegedly stolen is a necessary averment of an indictment for theft. People v. Smith, 341 Ill 649, 173 NE 814; People v. Cohen, 352 Ill 380, 185 NE 608; People v. Hill, 68 Ill App2d 369, 216 NE2d 212. In People v. Smith (supra), at page 651, the Supreme Court said: “The necessity for stating the name of the person injured is to enable the defendant to plead either a former acquittal or conviction, in case of a second prosecution for the same offense.”

We have carefully examined Count III and do not find therein an averment as to ownership, or a reference to either of the other counts which would serve to incorporate, by reference, any averment of ownership therein contained.

Count III of the indictment is, therefore, fatally defective and the judgment of conviction must be reversed.

Judgment reversed.

EBERSPACHER and MORAN, JJ., concur.


author: CRAVEN, J.,

text:
    The City of Danville, a Municipal Corporation, Plaintiff-Appellee, v. Ruth Hartley, Gerome DeGuissippi, Emett Heindle, and the Palmer American National Bank of Danville, Conservator of the Estate of Ruth Hartley, Defendants, Ruth Hartley, Defendant-Appellant.
    Gen. No. 10,951.
    Fourth District.
    October 31, 1968.

      John R. Dean, of Danville, for appellant.
    Wright and Young, of Danville (Wendell W. Wright, of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

In November of 1967, the Circuit Court of Vermilion County entered an order for the demolition of a house at 721 Wayne Street, Danville, Illinois, finding it to be in an unsafe and hazardous condition and that it constituted a fire and health hazard. The defendant in that proceeding, and appellant here, Ruth Hartley, was ordered to remove all personal property from the premises and the City was authorized and directed to raze and demolish the house any time after thirty days from the date of the decree. A lien upon the premises for the costs involved was also provided by the decree. This appeal is from the order of the circuit court.

It is the contention of the appellant in this court that certain statutory conditions precedent to the order are missing, that the trial court abused its discretion in refusing a requested continuance and that the record is lacking the required evidentiary support for the decree. A determination in this matter requires a recitation of the chronology of this proceeding and of the procedural aspects of this case.

In March of 1957, the City filed a complaint against Ruth Hartley alleging her ownership of certain premises in Danville, described as 721 and 723 Wayne Street, alleging the existence of a nuisance and praying for an injunction. As to the premises at 721 Wayne Street, the complaint and the notice to the defendant alleged the existence of a fire hazard and demanded that the condition be remedied by removing old lumber and other trash and litter from the premises. The present proceeding does not relate to 723 Wayne Street which, it appears, has been destroyed. An answer was filed in 1957.

Ultimately, in 1960, a decree was entered by the terms of which the City was granted the right and authority to go upon the premises and remove debris, and as to the premises at 721, the defendant was restrained and enjoined from keeping or maintaining any livestock or poultry on the premises.

Thereafter, in June of 1966, an amended complaint was filed by the plaintiff, pursuant to leave of court, for an order to demolish the building at 721, pursuant to the provisions of section 11-31-1, chapter 24, Ill Rev Stats 1965. In July of 1966, based upon a stipulation, the court entered an order that the defendant vacate the premises and that her then conservator should petition the court for authority to sell or otherwise dispose of the real estate and the improvements thereon. Thereafter proceedings to enforce the July, 1966, order were filed and the court was requested to find the defendant in contempt. In October of 1967, a petition was filed by the plaintiff seeking a modification of the July order and requesting that demolition be authorized. It was this request for modification that resulted in the decree being appealed in the instant case.

It is apparent from this recitation that this matter has been in litigation for more than ten years and that the City has persistently sought to abate that which it alleges to be a nuisance on the premises. Paragraph 11-31-1 of chapter 24, Ill Rev Stats 1967, is the statutory provision applicable to the motion of the City filed on October 9, 1967, for the demolition of the building at 721 Wayne Street. This statute provides:

“The corporate authorities of each municipality may demolish, repair or cause the demolition or repair of dangerous and unsafe buildings or uncompleted and abandoned buildings. No building may be boarded up or otherwise enclosed. The corporate authorities shall apply to the circuit court of the county in which such building is located for an order authorizing such action to be taken with respect to any such building if the owner or owners thereof, after at least 15 days’ written notice so to do, shall have failed to put such building in a safe condition or to demolish it. . . .”

Insofar as the 721 Wayne Street premises are concerned, the October, 1967, petition is essentially a new proceeding. The 15-day written notice contemplated in the quoted statutory provision does not appear of record nor is the stipulation of the parties that is the basis of the July, 1966, order sufficient to supply this deficiency.

We cannot say, however, that the absence of the notice here is such as to divest the court of jurisdiction of the subject matter. It is obvious that the statutory function to be served by the notice is to give the owner a choice of either demolishing the structure or putting it in safe condition. Considering that this matter has been in litigation for ten years, it is obvious that the continuing litigation has served the function of the notice and that, under the facts and circumstances here, the notice is not a condition precedent to further proceedings. As the court stated in City of Chicago v. James E. Mulligan Enterprises, Inc., 27 Ill App2d 481, 170 NE2d 13, 17 (1st Dist 1960):

“The statute does not say that notice is a condition precedent to suit nor does it prescribe the form of notice. The time prescribed is related not to the bringing of suit, but to the application for an order directing demolition. Two things are intended to be accomplished by the notice: first, to give the owner the choice of demolishing the structure or putting it in safe condition; and second, having made his decision, to have not less than thirty days within which to comply before the city asked for and got its order from the court. A legal proceeding was contemplated, and it must be assumed that in such a proceeding the legislature knew that time was given for the forming of issue and then trial, and not until then was the city in position to say to the court: ‘We now want the order.’ To construe the statute as defendants urge would give them not less than sixty days. In fact, it took fifteen months in this case.”

To hold that there is a want of jurisdiction for failure to have a statutory notice after this matter has been in litigation for ten years and an abundance of pleadings have been filed, would do violence to reason and logic.

This record is barren of evidence as to the condition of the premises at any time approximating the time of the decree. There is early evidence in the proceeding as to the condition of the premises, and the pleadings allege subsequent repairs. The necessity for demolition, under the current circumstances, is not demonstrated in this record.

In City of Aurora v. Meyer, 38 Ill2d 131, 136-137, 230 NE2d 200, 203-204 (1967), the court stated:

“The law is well settled that in cases of this nature courts do not go further than is necessary to protect the public interest. Property may be ordered destroyed under certain conditions but only if the danger cannot be abated in any other way. It is only in cases where an absolute necessity exists that courts adopt the drastic method of correction by ordering destruction of the property. (Childs v. Anderson, 344 Mich 90, 73 NW2d 280; Echave v. City of Grand Junction, 118 Colo 165, 193 P2d 277.) In other words the remedy is limited to the necessities of the case. Where hazardous conditions may be remedied by repair without major reconstruction the building may not be destroyed. Albert v. City of Mountain Home, 81 Idaho 74, 337 P2d 377.”

The judgment order for demolition must, therefore, be reversed and this cause remanded to the circuit court of Vermilion County with directions to proceed in accordance with the views herein expressed.

Reversed and remanded with directions.

SMITH, P. J. and TRAPP, J., concur.


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Charles Watts, Defendant-Appellant.
    Gen. No. 10,936.
    Fourth District.
    October 31, 1968.

      Phillip F. Fishman, of University City, Missouri, for appellant.

      Charles J. Ryan, State’s Attorney, of Jacksonville, for appellee.
   TRAPP, J.

At a jury trial defendant was convicted of voluntary manslaughter upon an indictment charging such offense under chapter 38, § 9-2(a), Ill Rev Stats 1965, i. e., killing under passion resulting from serious provocation without lawful justification. No other offense was charged. A post-trial motion, having been denied, defendant appeals through diligent counsel appointed subsequent to the trial.

Issues raised upon this appeal include: (1) That a statement made to the police was admitted into evidence in violation of defendant’s constitutional rights in that there were insufficient warnings under the rule of Miranda v. Arizona, 384 US 436, 16 L Ed2d 694, 86 S Ct 1602; (2) that a minor, aged 20 years and some months, is without capacity to waive either his right to counsel prior to police interrogation, or his right to remain silent during such interrogation; (3) that there was a failure to prove the corpus delicti other than through the defendant’s statement alleged to be erroneously admitted into evidence ; and (4) that defendant was not proven guilty beyond a reasonable doubt in that under the evidence defendant was either guilty of murder, or that the killing was in self-defense.

The events and details of the homicide appear only through the lips of the defendant in his statement made to police and admitted into evidence, and through his testimony at the trial. Defendant was aged 20 years and some months, and resided at the home of his mother. The victim, Wyatt, had formerly lived with the mother of the defendant and continued to return from time to time to stay at the home with her for various periods. It appears that he had arrived on the preceding evening and stayed overnight. So far as is shown in the record, no other person was present in the home at the time of this event.

The homicide was first reported at about noon on Sunday, November 6, 1966, by a call for an ambulance to the home in question. The ambulance people found defendant present and he pointed out the whereabouts of Wyatt. It appears that Wyatt died at about that time, and that when defendant was told that the victim was dead he left the home, although he was not observed to do so. Within a short time the defendant called the police stating his name, where he was and saying that he was in trouble. Upon inquiry as to the nature of the trouble he stated that a man had threatened him with a knife and that defendant had shot him. Defendant waited at the public telephone until police came for him.

Within some three hours defendant made a statement to police officers, taken in question and answer form by a court reporter. His testimony at the trial is in substantial accord with the statement. The issue of proof of guilt requires statement of the facts.

At an unspecified time, after 9:30 a. m., defendant went into the kitchen for a sandwich. Wyatt was then at the kitchen table preparing chicken for dinner and he asked defendant to put away some groceries and dispose of some trash. Defendant said that he would, but first returned to the living room to read the paper and listen to records. At a time again unstated, defendant returned to the kitchen whereupon Wyatt seized him by the collar, choked him and thrust him against the wall and threatened defendant with a butcher knife, saying that he would cut defendant’s throat. Defendant states that he worked free from Wyatt, went to the adjoining bedroom, took a key from his wallet, unlocked a chest, removed a box containing a handgun and removed the gun from the box; that Wyatt approached defendant in the bedroom holding a knife and saying that he would kill or cut the defendant; that defendant fired twice and that Wyatt went into the next bedroom and collapsed on the floor.

Defendant said that after being told of it, he recalled throwing the gun and knife onto the top shelf of a closet in the bedroom first described. Defendant disclaimed any intent to kill Wyatt, but that he just shot at him. Later, it appearing that Wyatt was “sick,” defendant called an ambulance.

The autopsy disclosed that one bullet made a hole in the heart and lodged in the spine, and that a second passed through Wyatt’s cheek, lodging in his denture. Competent ballistics testimony showed that one bullet was fired from defendant’s gun, that the second bullet was of the same caliber but too mutilated for comparison purposes. The investigating officer testified that the gun was found under some blankets and other items on the top of the closet shelf. At the trial there is no testimony concerning the finding of a knife near the gun. The record shows that at the preliminary hearing the same officer testified to finding a knife on the kitchen table, but that there was no knife where the gun was discovered. At the trial defendant identified a kitchen knife as the one held by Wyatt, but the record does not show from whence it was obtained, or where it was held pending the trial.

Upon consideration of the contention that there was not a sufficient warning of his right to counsel, and to remain silent prior to and at the time of making the statement to the police, we find that the motion to suppress such statement in the trial court was expressly limited to the issue of defendant’s mental capacity to make a statement. The record shows that defendant’s counsel stated that he believed that a sufficient warning had been given, and such record further contains testimony by the officer first taking the defendant into custody that defendant was advised of his right to an attorney, including the right to have one appointed if he was indigent. It appears that such warning was repeated in various forms upon several occasions, including the time when the statement was taken before a court reporter. At a preliminary hearing defendant did request appointment of counsel and the public defender was appointed.

It is strongly urged that the mere fact of minority alone creates a want of capacity to waive the right to counsel, or to waive the right to remain silent when questioned by police. Such proposition is not the rule. The United States Supreme Court in In re Gault, 887 US 1, 18 L Ed2d 527, 87 S Ct 1428, discussed the right of counsel in juvenile delinquency proceedings concerning a 15-year-old, and the necessity that the parent and the juvenile be advised of the right to counsel. The Court holds that either the parent or the juvenile may waive the right to counsel, saying (18 L Ed2d 527 at 554):

“If they were unable to afford to employ counsel, they were entitled in view of the seriousness of the charge and the potential commitment, to appointed counsel, unless they chose waiver.” (Emphasis supplied.)

The Supreme Court of Illinois in People v. Harden, 38 Ill2d 559, 232 NE2d 725, determined that a minor who has been adequately advised of the right to counsel may waive such right, and that there is no constitutional duty to force a lawyer upon him. Upon the issue of defendant’s capacity to make an understanding waiver of his right to counsel, and his right to remain silent when questioned, it is noted that neither the testimony upon the motion to suppress the statement, nor defendant’s testimony during the trial, contains a statement or claim of want of understanding of the rights waived in the proceedings.

The same doctor gave psychiatric testimony, both at a hearing upon defendant’s competency to stand trial and in behalf of defendant during the trial. It disclosed a history of prior stays at State mental hospitals for various periods, essentially for emotional problems. The record does not disclose any legal commitment of the defendant. He was last discharged some three years prior to the shooting. A psychiatric examination made shortly after the shooting disclosed that defendant could read adequately, that on tests administered he made an average score which was a substantial improvement from the score upon such test when last under treatment. He was described as being well-oriented, cooperative and with no present symptoms of psychosis. The statement in evidence shows that the defendant, when asked, stated that he wished to make a statement, and an officer present testified that the defendant said there was no reason why he should not make the statement. We have examined the record and it supports a conclusion that in the several proceedings defendant was alert and understood that which transpired. During a recess of the trial he sketched a floor plan of the house and illustrated his testimony from such plan. Scrutiny of the record suggests nothing to infer that defendant was without understanding.

Having contended that it was error to admit defendant’s statement into evidence, it is further argued that there was a failure to prove the corpus delicti without the benefit of evidence taken from such statement. In homicide the proof of corpus delicti includes the two elements, proof of the fact of death, and proof of the fact that death was produced by the criminal agency of some person. The People v. Manske, 399 Ill 176, 77 NE2d 164; People v. Bailey, 56 Ill App2d 261, 205 NE2d 756. This record, however, shows adequate evidence of the corpus delicti without consideration of any matter from the statement: Wyatt was shot in the heart; the bullet came from defendant’s gun which was later found under divers items at the back of a closet shelf in a room apart from where Wyatt lay; that Wyatt said to the ambulance driver, “I been shot,” and finally, defendant’s telephone call to the police, including his statement that he had shot a man. This was a spontaneous, volunteered statement not within the rule concerning Miranda warnings. 384 US 436, 16 L Ed2d 694 at 726, 86 S Ct 1602.

It is urged that there was a failure to prove guilt beyond a reasonable doubt founded upon the proposition that the only testimony upon the occurrence is that of the defendant, and that since the prosecution relies upon defendant’s testimony concerning the quarrel, the choking and threats with a knife by Wyatt to show the passion resulting from provocation necessary to prove voluntary manslaughter under § 9-2 (a), Ill Rev Stats 1965, such testimony must be taken to establish self-defense. It is contended that the evidence in the record shows murder, which was not charged, or exoneration. It is argued that such evidence discloses self-defense as a matter of law under the authority of People v. Williams, 56 Ill App2d 159, 205 NE2d 749. That case, however, differs in that there were witnesses, other than and in addition to the defendant, who testified as to the assault made upon the defendant cab driver when the latter went to the aid of a man being beaten in the street.

It has been frequently held that the jury is not required to accept defendant’s account of the events as conclusive, but may consider surrounding circumstances, and the probability or improbability of the matters testified to by the defendant. People v. Uher, 375 Ill 499, 31 NE2d 936; People v. Wiggins, 12 Ill2d 418, 147 NE2d 80; People v. Shannon, 94 Ill App2d 110, 236 NE2d 369. The jury could choose to disbelieve portions of the testimony. People v. Gajda, 87 Ill App2d 316, 232 NE2d 49.

It appears that the jury could have concluded that there was a period of quarreling following Wyatt’s request made to the defendant to carry out the garbage, if one takes into account the testimony that he read the paper, but that when he returned to the kitchen, Wyatt, without saying more, started to choke him and made threats with the knife. People v. Stepheny, 76 Ill App2d 131, 221 NE2d 798; People v. Gajda, 87 Ill App2d 316, 232 NE2d 49. There is testimony concerning blood spots found in the kitchen, in some contradiction to defendant’s testimony that he shot Wyatt in the bedroom. Defendant’s counsel argued that defendant returned to the kitchen after getting the gun. Upon response to a question in his statement, defendant stated that he was angry enough to want to shoot Wyatt, but that he did not want to kill him. The issue of self-defense is always a question of fact for a jury under proper instruction, and such decision will not be disturbed unless the evidence is so unreasonable, improbable or unsatisfactory as to suggest a reasonable doubt. People v. Turner, 82 Ill App2d 10, 226 NE2d 667; People v. Owens, 73 Ill App2d 108, 219 NE2d 733. There are no issues raised concerning the instructions given by the court.

The judgment of conviction is affirmed.

Affirmed.

SMITH, P. J. and CRAVEN, J., concur.


author: SPIVEY, J.

text:
    The People of the State of Illinois, Plaintiffs-Appellees, v. Wayne Royer, Defendant-Appellant.
    Gen. No. 68-57M.
    Fifth District.
    November 1, 1968.

      Emerson Baetz, of Alton, for appellant.
    Leon G. Scroggins, State’s Attorney, of Edwardsville, and Lawrence T. Hartman, Assistant State’s Attorney, for appellee.
   SPIVEY, J.

Defendant appeals from a judgment of guilty following a bench trial in the Circuit Court of Madison County, Illinois. Defendant was charged with a violation of section 31-1 of the Criminal Code, chapter 38, section 31-1, Blinois Revised Statutes.

Defendant contends that his arrest was unauthorized in that the facts surrounding the occurrence did not comply with any of the requirements set out in section 107-2 of the Criminal Code, chapter 38, section 107-2, Illinois Revised Statutes.

The instant arrest was made without a warrant and without reasonable grounds to believe that a warrant for the defendant’s arrest had been issued in this State or in another jurisdiction.

We must now determine whether or not the People have proven that the arresting officer had reasonable grounds to believe that the defendant is committing or had committed an offense.

Everett Kelly, a police officer, testified that at about two-thirty a. m. on April 25, 1967, he saw the defendant driving his automobile in Granite City, Illinois, accompanied by two other persons, one of whom he recognized as a Fred Tanner; he started his red light and followed the defendant’s car stating, “I wanted to find out why Fred Tanner was out with the adult”; followed the defendant’s car to Black’s Bakery; it drove into a backyard, asked the defendant for his identification or driver’s license; the defendant said, “Why do you want my license, I’m on private property”; he told the defendant he was under arrest; he put his hands on the defendant and that he, the defendant, tried to pull away so he used necessary force; he knew Fred Tanner and wanted to ask him about his age; he had reference to the curfew law; and at the station house he again told defendant he was under arrest for contributing to the delinquency of a child.

Glen Wright, another Granite City police officer, testified that he was called for assistance and came to Officer Kelly’s assistance; three persons were at the scene and one person said something about he could not be arrested on private property; the defendant jerked himself free pulling violently; we put the handcuffs on the defendant; defendant was cursing about his wallet and I was kicked in the leg; he shoved defendant away and he fell down; upon arrival at the station he saw defendant’s chin bleeding; and the defendant was taken to the hospital.

The defendant Royer, testifying in his own behalf, stated he drove his car into the backyard of his mother-in-law’s home; a police car drove into the alley behind the yard; a policeman asked me to come down the alley; that I said I didn’t have to; I did not have to give him my license; the officer tried to pull the license away from me while I was holding a tree; the policeman then went to his car; I was knocked down, hit and stomped on, kicked in the face; I presume I was taken to the station house but do not remember as I was unconscious ; I was brought back to the station house from the hospital at which time I was told I was under arrest charged with something illegal; and I do not recall the officer having stated I was under arrest.

Helen Courtney, testifying on behalf of the defendant, stated that she was his mother-in-law; the controversy was in her backyard; she heard the policeman holler at the defendant; and the officer was wrestling with the defendant, dragged him to the police car and threw him in the back seat.

Marion Courtney, testifying on behalf of the defendant, said he saw Officer Kelly standing about thirty feet from the defendant shouting at the defendant to come to his car; the defendant approached the police officer but did not take the license out of his wallet; and another officer drove up and took him, Marion Courtney, into custody.

Officer Mank, who was present and one of the complainants, did not testify on behalf of the prosecution.

In discussing section 4 of division 6 of the prior Criminal Code, chapter 38, section 657, a similar statute to section 107-2 of the Criminal Code of 1961, the Supreme Court, in People v. Doody, 343 Ill 194, 175 NE 436, had this to say regarding the verbiage “reasonable ground for believing”: “An officer making an arrest without a warrant and without authority conferred by statute to arrest without a warrant is a trespasser, . . . (citing cases).” Emphasis supplied.

The court went on further to say, “Whether or not the officer had reasonable ground for believing that the person to be arrested had committed the offense is a mixed question of law and fact, circumstances to show it reasonable being the fact and their sufficiency when shown being a question of law. Kindred v. Stitt, 51 Ill 401.”

To sustain the charge of resisting arrest under section 31-1 of the Criminal Code, the prosecution must show, among other things, that the defendant knowingly resisted the performance by one known to him to be a peace officer of an authorized act within his official capacity. (People v. Gasparas, 98 Ill App2d 391, 240 NE2d 716.)

We conclude that the prosecution has failed to prove the power to make the arrest was conferred by statute, viz., that Officer Kelly had reasonable grounds to believe that the defendant, Royer, was committing or had committed an offense.

The continuity of the events that transpired on the evening in question as disclosed by the stipulated Report of Proceedings is most difficult to follow. We believe it is fair to say that Officer Kelly’s testimony clearly indicates that the events leading up to the altercation was motivated by his intention to check Fred Tanner for a possible violation of the curfew laws and not that of some reasonable belief the defendant was committing or had committed an offense.

The nature of the charge lodged against the defendant at the police station is not disclosed by the record. Neither was the nature of the offense that the defendant was suspect of having committed disclosed to the defendant until he had been returned from the hospital to the police station where he was informed that he was charged with contributing to the delinquency of a child.

The record likewise is absent any facts upon which Officer Kelly could reasonably conclude that the defendant was committing or had committed an offense and in particular that of contributing to the delinquency of a child.

Bare suspicion will not justify an officer in making an arrest. People v. Peak, 29 Ill2d 343, 194 NE2d 322.

The prosecution’s sole argument for affirmance is based on section 7-7 of the Criminal Code, chapter 38, section 7-7, Ill Rev Stats.

It has been held that the comments of the joint committee to revise the Illinois Criminal Code may be considered in determining legislative intent. People v. Touhy, 31 Ill2d 236, 201 NE2d 425; People v. Miller, 55 Ill App2d 146, 204 NE2d 305, and People v. Young, 80 Ill App2d 479, 224 NE2d 465.

Article 7 of the Criminal Code, chapter 38, section 7-1 et seq., is a codification of the laws of justification for criminal acts established by legislative acts and court decisions as applied to use of force, exoneration, entrapment and necessity.

Section 7-14 of this Article designates the use of force as a justification to be an affirmative defense.

Section 7-7 of the Criminal Code is meant to be a limitation on the right to invoke the affirmative defense of justification provided in other provisions of Article 7 authorizing the use of force by an individual in resisting arrest by one known to be a peace officer or by a private person summoned and directed by a peace officer to make the arrest even if one believes the arrest to be unlawful and the arrest, in fact, is unlawful.

Appellee admits that the record does not disclose whether the arrest was lawful or unlawful and that this court may assume for the purpose of its decision that the arrest was, in fact, unlawful.

Appellee further states that the defendant knew the individual making the arrest was a police officer, therefore by virtue of section 7-7 of the Criminal Code the defendant was forbade from resisting the arrest. Further they say sections 31-7 and 7-7 of the Criminal Code should be read together. With this we cannot agree.

We deem it unnecessary to decide whether a defense of justification would be available to the defendant under the facts in this case in that the prosecution has failed to prove the act Officer Kelly was performing to be an authorized act.

In view of the foregoing the judgment and conviction in the Circuit Court of Madison County is reversed.

Reversed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Atwood Baker and James B. McClure, Defendants-Appellants.
    Gen. No. 68-64. (Abstract of Decision.)
    Fifth District.
    November 4, 1968.
    Green & Cross, of Nashville, for appellants; Robert N. Gandy, State’s Attorney, of Pinekneyville, for appellee.
   Opinion by JUSTICE GOLDENHERSH. Not to be published in full.