text:
    People of the State of Illinois, Plaintiff-Appellee, v. Vincente M. Casa, Defendant-Appellant.
    Gen. No. 52,857.
    First District, First Division.
    June 30, 1969.

      Barnes & Grant, of Chicago (Arthur H. Grant, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant’s State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

The defendant, Vincente M. Casa, was convicted of violating section 47 of the Uniform Act Regulating Traffic (Ill Rev Stats 1965, c 95½, § 144), in that he was driving a motor vehicle while under the influence of intoxicating liquor and was fined $200 and costs. The defendant contends on appeal that the traffic ticket issued him was not sufficient to apprise him of the charge against him, and that he was not proven guilty beyond a reasonable doubt.

Officer Richard Attreau testified that on July 22, 1967, at approximately 6:30 p. m., he observed the defendant go through a red light at the corner of 93rd and South Chicago Avenue in the City of Chicago. Officer Attreau, who was in uniform and driving a plainly marked police car, stopped the defendant and explained the violation to him. As the officer returned to his squad car to park it, the defendant drove away. Officer Attreau curbed the defendant again at 92nd and Exchange Avenue, but as Officer Attreau approached defendant’s automobile, the defendant once again drove away. The defendant was finally curbed a third time at 92nd and Commercial Avenue, yet the defendant refused to get out of his automobile or produce his driver’s license. Officer Attreau called for the assistance of a two-man squad car, and with this assistance, transported the defendant to the Fourth District Police Station. A friend of the defendant was with him at the time of his arrest.

Officer Attreau continued to testify that during the course of the above events, he detected the odor of alcohol on the defendant’s breath and observed that his face was flushed, his clothes soiled and that defendant was in “sort of a fighting mood.” The defendant had some difficulty getting into the squad car. His balance was unsure and he swayed when he walked or turned. Officer Attreau stated that he had been a member of the Chicago Police Force for eleven years and during that time had observed “30 or 40” individuals who were under the influence of intoxicating liquor. Based on his observations of the defendant and his experience as a police officer, Officer Attreau was of the opinion that the defendant was under the influence of intoxicating liquor, and was unfit to drive an automobile. At the police station defendant was issued three traffic tickets; no blood, performance, or breathalyzer tests were administered to defendant to determine whether he was intoxicated, as defendant refused to submit to any tests.

The defendant denied that he had anything to drink or was driving under the influence of alcohol and contended that he and a friend had spent the day painting and he had washed his hands in turpentine shortly before he was arrested. Defendant left his home accompanied by his friend in his automobile and proceeded to 115th and the Dan Ryan Expressway, then South to 95th Street. After several turns he was proceeding North on Commercial Avenue, then he turned on to South Chicago Avenue, driving in a northeast direction. Traffic was heavy and when he saw a flashing blue light atop a police car he paid no attention to it as there was no place available to park. The police officer stopped the defendant at 93rd and South Chicago Avenue and explained that defendant went through a red light, and as the officer walked away, defendant drove off, searching for a place to park. Defendant stated the reason he allegedly left the police officer was because he did not notice the officer and was still attempting to find a place to park. The police officer did not immediately inform defendant that he was under arrest for going through a red light, but did so the third time he stopped the defendant at 92nd and Commercial Avenue. Two more policemen arrived and defendant was taken to the Fourth District Police Station. The defendant did not know he was receiving a traffic ticket for driving under the influence of intoxicating liquor until he was in the police station.

The original complaint (the traffic ticket) issued to the defendant alleged a violation of section 47 UART and described the offense as “driving under the influence.” A rubber stamp was later put on the complaint describing the offense as “driving under the influence of intoxicating liquor and narcotic drugs.” Before the trial began, however, the State made a motion, which was granted, to amend the complaint by striking the words “narcotic drugs,” and to have it read “driving a motor vehicle while under the influence of intoxicating beverages.” The trial judge offered to give the defendant additional time to prepare his defense if the amendment impaired his ability to defend himself but the defendant stated that he was ready for trial.

The court stated that it had made up its mind concerning the charges against the defendant and did not think the State had proved going through a red light, nor the eluding and resisting arrest. But the court did find the defendant guilty of driving under the influence of intoxicating liquor, and entered a $200 fine against the defendant and costs.

The complaint (the traffic ticket) involved in this case clearly and correctly charged the defendant with a violation of Section 47 of the Uniform Act Regulating Traffic (Ill Rev Stats 1965, c 95½, § 144). The defendant attacks the complaint on the ground that the offense was described on the original ticket as “driving under the influence” which the defendant claims is insufficient to charge a crime. The defendant relies on People v. Stringfield, 37 Ill App2d 344, 185 NE2d 381 (1962), where this court held that a complaint charging a violation of section 47 UART by “driving under the influence” is insufficient to charge a crime. In the instant case, the complaint was amended in open court, prior to trial, to read “driving under the influence of intoxicating beverages.” In the Stringfield case, supra, the complaint was amended to read “driving under the influence of alcohol,” and such amendment was made after the trial which this court held was void. The obvious difference in the Stringfield case and the case at bar is that the amendment in Stringfield was made after the trial and could not cure the defective complaint, while in the instant case the amendment was made before the trial and was adequate to inform the defendant of the charge against him, thus curing any defect in the original complaint. Also, the term “intoxicating beverages” when used in the phrase “driving a motor vehicle while under the influence of intoxicating beverages,” is sufficient to charge an offense under our Statute. People v. Handibode, 53 Ill App2d 296, 202 NE2d 845 (1964).

The evidence in this case consisted of the testimony of Officer Attreau, as witness for the State, and of the defendant Vincente M. Casa, testifying in his own behalf. The trial court chose to believe the testimony of Officer Attreau over the conflicting version as offered by the defendant. We think the trial court was much more qualified to judge the creditability and demeanor of the witness, than the reviewing court, and that the testimony was not contrary or unreasonable, improbable or unsatisfactory, as to justify the trial court in entertaining a reasonable doubt of the defendant’s guilt. The defendant also contends that his conviction rests entirely upon Officer Attreau’s testimony and not upon any scientific evidence of intoxication. (Blood tests, breathalyzer tests and the like.) The record reveals that the defendant refused to consent to any tests being administered to him, however, Officer Attreau had ample time to observe the defendant’s physical condition, and based upon his observations testified that it was his opinion that defendant was driving a motor vehicle under the influence of intoxicating beverages. We concur with People v. Lenihan, 14 Ill App2d 490, 144 NE2d 803 (1957); People v. Armstrong, 16 Ill App2d 365, 148 NE2d 187 (1958); People v. Raddle, 39 Ill App2d 265, 188 NE2d 101 (1963) and People v. Buzinski, 64 Ill App2d 194, 212 NE2d 270 (1966), that scientific evidence is not always needed or necessary to sustain a conviction for driving a motor vehicle while under the influence of intoxicating beverages.

The judgment of the Circuit Court of Cook County is therefore affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE LYONS

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond Freeman, Defendant-Appellant.
    Gen. No. 52,852.
    First District, Second Division.
    July 1, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Nunzio Tisci, Shelvin Singer, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

The defendant, Raymond Freeman, was indicted for aggravated battery and attempt robbery, violations of Ill Rev Stats (1965), c 38, § 12-4 (a) and § 8-4, respectively. In a trial by the court without a jury, he was found guilty of aggravated battery and judgment was entered. Following a hearing in aggravation and mitigation, the defendant was sentenced to not less than four nor more than four years and one day in the State Penitentiary. He appeals.

Readell Mitchell stated that on March 31, 1967, at approximately 1:05 a. m., he was walking home after finishing work as a Chicago Transit Authority bus driver ; that he met the defendant at 71st and Parnell in Chicago; that Mitchell, dressed in his C.T.A. uniform, saw the defendant put his hand in his pocket and heard a click; and that the accused then confronted him with a gun and said: “Give me what you’ve got.” At the time, Mitchell had a changer, a punch, and approximately $135. Mitchell hit the drawn gun with his left hand and struck the defendant with his right. The weapon discharged and the accused, still holding the gun, attempted to flee but was pursued by Mitchell, who was unarmed.

A struggle ensued in an adjacent alley and two or three more shots were fired there before the defendant dropped the weapon. Mitchell went on to say that he was struck in the right thigh by one of the bullets; that he did not know if this occurred on the street or later in the alley; that among the first two police officers to arrive in the alley was Patrolman Burns; and at that time, Mitchell was on top of the struggling defendant, had disarmed and was striking him. The accused did not lose consciousness. The victim was thereafter taken to a hospital and was released the next day. In conclusion, Mitchell stated that he did not know the defendant prior to this altercation, had never seen him before, and did not attempt to rob the accused on March 31,1967.

Thomas Gray, a lieutenant in the Chicago Fire Department, stated that he was working in a fire station located at 71st and Parnell in Chicago when he heard a shot fired at approximately 1:00 a. m. on March 31, 1967. Upon investigation, he observed Mitchell and the defendant and saw that Mitchell had subdued the accused and was holding him down, although the defendant continued to struggle. A gun was lying in the alley. Apparently, the defendant was conscious. The police then arrived, told the defendant he was under arrest, and he should stop struggling. It appeared to this witness that the accused was not bleeding but that Mitchell was. Mitchell was limping and it looked as if the accused had fractured his leg.

Officer Burns, the arresting officer, stated that he went to the scene of the crime in response to a call over his police radio. Upon arriving in the alley, he saw Mitchell holding his right thigh with his right hand and the defendant with his left hand. Mitchell was hopping around on one leg and was holding the accused by the coat collar. The defendant was on his knees at the time and was trying to rise. The gun was lying in the alley. Upon seeing Officer Burns, Mitchell said, in the presence of the defendant: “I have been shot; he (defendant) tried to rob me.”

The sole witness for the defense was the defendant. He stated that on March 31, 1967, he attended a party at his friend’s house located at 71st and Wentworth and left between 12:10 and 12:20 a. m.; that before leaving he had allegedly loaned five dollars to his friend, and received a Baratta automatic revolver as security, and it was this weapon which the State’s witnesses had identified as being used in the alleged crime. On March 31, 1967, after leaving the party, he was walking to his grandmother’s home and passed Readell Mitchell, who was walking in the opposite direction. Mitchell allegedly called the defendant back and asked him if they had ever met on the West Side of Chicago. The defendant said no, but Mitchell allegedly stated that he looked like a man who had taken $10 from him. Mitchell then allegedly struck the defendant in the eye and began beating him. In time, the defendant tried to pull out the gun hoping to scare Mitchell with it, but the accused was struck again. The gun then discharged, shooting the defendant in the toe. The weapon discharged again as Mitchell knocked it out of the defendant’s hand. The accused then tried to run down the alley but was subdued by Mitchell. In conclusion, the defendant denied committing the crimes with which he was charged and stated that he was almost seventeen when the crimes occurred.

On cross-examination, the accused testified that he did not check to see if the gun was loaded when his friend pledged it with him. He just stuck it in his belt with the gun’s handle exposed and later tried to scare Mitchell with it. The accused allegedly did not know it was loaded.

At the later hearing in aggravation and mitigation, a presentence investigation report was considered by the court before imposing sentence. The report stated, inter alia, that “the defendant was born in May, 1940 [sic], was seventeen years of age in 1967, and lived with his mother who had four other children.” His mother was sworn as a witness at this hearing and testified that the accused was seventeen years of age; that she was the mother of eleven children; and that she worked as a nurse’s aid to support them.

In aggravation, the State introduced prior convictions of battery and contributing to the sexual delinquency of a minor, both misdemeanors, and recommended a sentence of five to fourteen years. In mitigation, defense counsel stated that the defendant was only sixteen when the instant crime was committed; that the victim was accidentally, not intentionally, wounded; and that a sentence of two to five years was recommended. The court imposed a sentence of four years to four years and one day.

On appeal, the defendant contends that he was denied a fair trial because: (1) the trial court improperly admitted hearsay evidence over the objections of defense counsel; (2) the court’s remarks indicated that it had already adjudged the defendant to be guilty before all the evidence was presented; (3) the court improperly admitted hearsay evidence at the hearing in aggravation and mitigation and was prejudiced toward the defendant at that hearing. The defendant also urges that the minimum sentence given him was excessive and should be reduced.

The defendant’s initial contention urges that prejudicial error occurred when the court allowed Officer Burns to testify as to what the victim, Readell Mitchell, told him in the alley when Burns appeared. Since the prosecution offered the victim’s declaration (“I have been shot; the defendant tried to rob me”) to prove the truth of the matters asserted therein and since the declarant, the victim Readell Mitchell, did not testify as to what he told Officer Burns, this court is faced with a hearsay situation. However, we agree with the State that the trial court did not err in allowing Officer Burns to testify as to what Mitchell told him because the victim’s declaration, under the facts of this case, qualify as an exception to the hearsay rule, namely, as a spontaneous declaration or an excited utterance. As such, his declarations are competent and are admissible into evidence through the testimony of the person to whom he spoke.

In People v. Poland, 22 Ill2d 175, 181, 174 NE2d 804, 807 (1961), the court stated that three factors are necessary to bring a declarant’s statement within the spontaneous declaration exception to the hearsay rule: (1) an occurrence sufficiently startling to produce a spontaneous and unreflecting statement by the declarant; (2) the absence of time available to the declarant in which to fabricate his declaration; (3) a declaration relating to the circumstances of the exciting occurrence.

In the case at bar, all three factors are amply sustained by the evidence. The declarant, Readell Mitchell, was the victim of an attempted robbery and was shot in the thigh as the culprit was seeking to escape. Mitchell, while hopping on one leg and immediately upon seeing a police officer, told him that he (the declarant-victim) had been shot and that the defendant tried to rob him. There was hardly time for the declarant to fabricate this declaration. The excitement of the affray continued to suspend the declarant’s powers of reflection and fabrication. Moreover, the victim’s declaration did relate to the circumstances of the exciting occurrence which was the attempted armed robbery and ensuing aggravated battery.

It is to be noted that the victim-declarant, Headed Mitchell, did testify in this case but no inquiry was made of him as to what he told Officer Bums at the scene of the crime. However, this omission is not fatal to the admission of his declaration through the testimony, at trial, of another witness. Dean Wigmore in discussing the spontaneous declaration exception to the hearsay rule has stated that the death, absence or other unavailability of the declarant need never be shown as a foundation before the declarant’s spontaneous exclamation is allowed into evidence. The reason for this is that the declarant’s out-of-court assertion, due to its spontaneity, caused by the exciting occurrence, is more truthful than is likely to be obtained from the declarant later on the witness stand. A necessity or expediency thereby arises for resorting to the declarant’s excited utterance. See 6 Wigmore on Evidence, § 1748 (3d ed 1940); McCormick on Evidence, § 272 (1954 ed). Since, under the spontaneous declaration exception to the hearsay rule, the availability of the declarant as a witness does not preclude a third person from testifying to what the declarant told him, the declaration should not be excluded when the declarant testifies as a witness but is not asked any questions concerning his excited utterance.

In People v. Damen, 28 Ill2d 464, 193 NE2d 25 (1963), the reviewing court held that no error occurred when a police officer testified to what the victim of a rape told him. The testimony was held to be competent and admissible under the spontaneous declaration exception to the hearsay rule although the victim had testified at the trial and apparently no inquiry was made of her as to what she had told the police officer at the scene of the crime. We therefore hold that no error occurred when Officer Burns testified as to what the victim spontaneously told him at the scene of the offense. Furthermore, this testimony was admissible although the victim-declarant had testified earlier in the trial and no inquiry was made of him as to his out-of-court statement to the police officer.

The defendant also contends that the trial court, by its remarks, indicated that it had prejudged the defendant to be guilty. We have reviewed the record in this regard and are of the opinion that no error occurred. On one occasion, the trial court indicated his surprise that the defendant only thought he knew his friend’s name. On another occasion, the court was surprised when the defendant testified that the arresting officer allegedly struck him in the face. The defendant was hardly prejudiced by these spontaneous remarks of the trial court.

Thirdly, the defendant urges that the court improperly admitted hearsay testimony at the hearing in aggravation and mitigation and was also prejudiced toward the defendant at this stage of the proceedings. The alleged prejudicial hearsay is said to be the presentence investigation report since the court relied upon it, to some extent, in sentencing the defendant, and it was apparently erroneous in stating the age of the defendant and the number of children his mother had borne. The defendant was not prejudiced by the apparent typographical error as to his age since his mother testified at this hearing and stated that her son was seventeen and not twenty-seven. The trial court specifically mentioned, before passing sentence, that he too thought the defendant was seventeen. Any error as to the number of children which defendant’s mother might have borne was not relevant, within the facts of this case, to the issue of sentencing. We find no merit in this contention.

Finally, the defendant contends that the minimum sentence is excessive and should be reduced. It is to be noted that the defendant received a fixed sentence in that he was to be imprisoned for four years to four years and one day. Our legislature has indicated that it favors all sentences to the penitentiary to be for an indeterminate term. Ill Rev Stats (1965), c 38, § 1-7 (e). In People v. Jones, 92 Ill App2d 124, 128, 235 NE2d 379, 381 (1968), the court recognized as a sound guideline, in implementing this principle of indeterminacy, that the trial court should not be authorized to impose a minimum sentence which exceeds one-third of the maximum sentence actually imposed. Furthermore, in People v. Lillie, 79 Ill App2d 174, 179, 223 NE2d 716, 719 (1967), the court noted that excessive minimum sentences could defeat the effectiveness of the parole system by making mandatory the incarceration of a prisoner long after effective rehabilitation has been accomplished and by destroying any incentive a prisoner might have to participate in the educational and rehabilitation programs provided in modern penal institutions.

We are of the opinion that the case at bar is an appropriate one for the exercise of our power found in Supreme Court Rule 615(b)(4) (Ill Rev Stats (1967), c 110A, § 615 (b) (4)) to reduce the minimum sentence imposed by the trial court from four years to one year. The maximum sentence imposed remains at four years. It is to be noted that the defendant was sixteen at the time this offense was committed and had no prior felony convictions. Although the defendant was found guilty of aggravated battery in the instant case, the shooting occurred accidentally during a struggle for a gun and was not intentionally inflicted. A sentence of one to four years follows the enlightened legislative intent that all sentences to the penitentiary should be for an indeterminate term and contains a “spread period” that will enable the defendant to gain his conditional freedom at a time in his life much earlier than under the original sentence.

The judgment is modified by reducing the sentence to a term of not less than one year nor more than four years in the State Penitentiary and as modified is affirmed.

Judgment modified, and as modified, affirmed.

BURKE and McCORMICK, JJ., concur.


author: MR. JUSTICE McCORMICK

text:
    Benjamin Holmes, Plaintiff-Appellant, v. West Suburban Consolidated Seventh-Day Adventist School and Christa Straub, Defendants-Appellees.
    Gen. Nos. 53,022, 53,203. (Consolidated.)
    First District, Second Division.
    July 1, 1969.

      Bernard Davis, of Chicago (Sheldon Hodes and Alan J. Scheffres, of counsel), for appellant.
    Howard, French & Healy, of Chicago (John J. Treacy, of counsel), for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal was taken from an order entered on January 15, 1968, denying plaintiff’s motion for either a new trial or a judgment notwithstanding the verdict. The action was brought to recover damages occasioned by the negligence of defendants in the operation of their bus. The jury rendered a verdict for the defendants, and the court entered judgment on December 15,1967.

On September 14, 1966, the plaintiff was a passenger on a C.T.A. bus, proceeding south on Austin Avenue, when it was struck from the rear by a bus owned by West Suburban Consolidated Seventh-Day Adventist School (defendant), and operated by defendant Christa Straub. The C.T.A. bus was struck at the left rear corner where the plaintiff was seated, and, according to his testimony, the impact caused him to be thrown upward and backward. Both the plaintiff and Robert Kloosterhuis (a pastor of the Seventh-Day Adventist Church), who was a passenger in the school bus, testified that at the time of impact the C.T.A. bus was visibly damaged on the left rear side. Mr. Kloosterhuis also testified that the defendant’s bus was damaged on the right front fender.

The plaintiff notified the driver of the C.T.A. bus that he was injured and left his name with him. When he went home he experienced serious headaches which became worse, and the next day the plaintiff went to Dr. Leslie Kaplan. He complained of soreness and stiffness in his neck and shoulders. After the third visit to the doctor, with no improvement in his condition, the plaintiff was admitted to Sheridan General Hospital where he was confined to bed for four days, receiving various forms of physical therapy and medication. For two weeks after his release from the hospital he remained under the doctor’s supervision and treatment.

In their answer to the plaintiff’s complaint, defendants admitted negligence in the operation of their bus at the time and place of the accident, but they denied that plaintiff was injured in any degree as a result of any negligent act or omission of the defendants.

At the trial the plaintiff testified regarding his injuries and stated that the doctor’s bill was $145; that he thought the hospital bill had been paid by Blue Cross and Blue Shield; and that after he left the hospital he saw Dr. Kaplan for two weeks and was given medication which furnished some relief. He stated he had headaches for about three weeks following the accident, and that the soreness in his neck and shoulders lasted about two weeks.

The plaintiff also testified that he had been employed by Zenith Corporation, where he had earned $2.25 or $2.26 an hour, approximately $100 a week; that when he attempted to return to his job after the accident, he learned he was discharged. He did not get another job until four weeks after the accident, and there he earned only $1.90 an hour; after about two months he secured a job at Admiral Corporation, where his earnings had increased from $1.90 to $2.33 per hour, his salary at the time of trial.

The plaintiff testified that when he worked very hard he still got headaches. Counsel stipulated that if Dr. Kaplan were called upon to testify it would be with respect to his medical examination according to the following report which was admitted into evidence:

Name of patient, Benjamin Holmes; address, 352 South Kostner; objective symptoms including X-ray findings, contusions of the occipital region of the skull, sprained muscles in region of C-2, C-4; sprained shoulder muscles; subjective symptoms, headaches, tenderness in upper neurological region of the spine, pains upon flexion or extension of both shoulder regions; diagnosis, see objective symptoms, see above objective symptoms: Where X-rays taken, 3527 West Roosevelt Road; treatment, patient was hospitalized at the Sheridan General Hospital from 9-19-66 until 9-23-66. Following this hospitalization the patient was treated on an ambulatory basis in our clinic with analgesics and sedatives and follow up care was also instituted for possible latent injuries. Present condition; Fair. Permanent deformities and scars, none noted. Prognosis: Satisfactory.

Mr. Kloosterhuis testified on behalf of the defendants that at the time of the accident he was assisting the driver of the school bus, showing her the route and helping her to learn her new job. Although he had testified there was physical damage to the two buses, he said: “As far as I was concerned, the impact was not very great between the buses. . . On cross-examination he testified that the driver of the C.T.A. bus had informed him that several people on that bus had claimed injuries, which fact was verified by the C.T.A. driver, who testified that the plaintiff and one other person had told him they were injured.

The jury returned a verdict for the defendants and the court denied plaintiff’s motion for a new trial or judgment notwithstanding the verdict. From that order of the trial court this appeal is taken.

It is true that a jury verdict is given great weight; however, it is also held that when the verdict of the jury is against the manifest weight of the evidence it should be set aside. In Donelson v. East St. Louis & S. R. Co., 235 Ill 625, 85 NE 914, it is said at 628:

“The constitution, which provides that the right of trial by jury as previously enjoyed shall remain inviolate, does not make the jury the final judges of the weight of evidence, and if a verdict is manifestly against the weight of the evidence it is the duty of the trial judge to set it aside and grant a new trial, and a failure to do so is error, for which a judgment must be reversed. (Chicago, Burlington and Quincy Railroad Co. v. Gregory, 58 Ill 272; Henry v. Eddy, 34 id. 508; Lincoln v. Stowell, 62 id. 84.) In Belden v. Innis, 84 Ill 78, the court said that in all cases where a verdict is manifestly and palpably against the weight of the evidence the judge in the trial court should promptly take the responsibility of setting aside the verdict, and a failure to do so is error. If a verdict is manifestly against the weight of the evidence, it is not necessary that it should further appear that it was not the result of the impartial and honest judgment of the jury, nor that it resulted from prejudice, passion or some improper motive or condition. To permit a verdict which is clearly and manifestly against the weight of the evidence to stand, upon the supposition that the jury were impartial and honest, would be as unjust and injurious to the defeated party as though it proceeded from passion, prejudice or some improper motive.”

In Roth v. Lissner Iron & Metal Co., 88 Ill App2d 352, 232 NE2d 534, the court said at page 355:

“A verdict is against the ‘manifest weight’ when an opposite conclusion is ‘clearly apparent,’ Tabor v. Tazewell Serv. Co., 18 Ill App2d 593, 153 NE2d 98 (3d Dist, 1958), or the finding of the jury appears to be ‘unreasonable, arbitrary, and not based on the evidence,’ Stobbs v. Cumby, 9 Ill App2d 138, 132 NE2d 448 (3rd Dist, 1956).”

The cases so holding are so numerous that there is no necessity for citing them.

The question presented in the instant case is whether the verdict of the jury is against the manifest weight of the evidence. The only question litigated in the trial court was the damage to the plaintiff. The uncontroverted evidence showed that the C.T.A. bus and the defendant’s bus collided and that both were damaged; that the bus in which the plaintiff was riding was struck by defendant’s bus through the admitted negligence of defendant; that the impact occurred in the place where plaintiff was seated; and that immediately after the incident the plaintiff claimed injuries. There was evidence regarding the extent of his injuries and damages; a direct report of objective symptoms resulting from the injuries was introduced. Against this evidence the defendants offered only the statement of Mr. Kloosterhuis that the impact between the buses was slight. However, that statement is not sufficient to warrant a holding that no injury had occurred to the plaintiff, in the face of the evidence introduced by plaintiff.

The verdict was contrary to the manifest weight of the evidence; accordingly, we reverse the judgment and remand the cause with instructions to allow a new trial on the issue of damages.

Reversed and remanded with directions.

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


author: MR. JUSTICE BURKE

text:
    Roman Domas, Plaintiff-Appellee, v. The Fidelity & Casualty Company of New York, a Corporation, Defendant-Appellant.
    Gen. No. 53,221.
    First District, Second Division.
    July 1, 1969.

      Howard & French, of Chicago (Russell V. Guilford, of counsel), for appellant.
    Paul M. Smith, Jr., and Frederick C. Jonas, of Chicago (Frederick C. Jonas, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

This was an action for indemnification for expenses incurred by plaintiff Roman Domas (hereinafter referred to as “Domas”) in the defense of a personal injury action after defendant Fidelity & Casualty Company of New York (hereinafter referred to as “Fidelity”) withdrew from and refused to defend the action as it was allegedly required to do pursuant to the terms of a policy of insurance issued by it to Domas. The trial court entered judgment for Domas in the amount of $4,024.10, representing $3,524.10 expended by Domas in the defense of the personal injury action ($2,000 judgment, $1,500 attorney fees, and $24.10 costs) and the additional sum of $500 for attorney fees in the instant action “for vexatious refusal of defendant to represent plaintiff in aforesaid case.” Fidelity appeals.

In March 1959 three members of the Norman family were injured when the automobile in which they were riding was forced to make a sudden and unexpected stop due to a defect in the public street allegedly caused by Domas, a plumber, at the site where he was repairing underground sewer connections. The Normans instituted a personal injury action against the City of Chicago in 1960, and the City in turn filed a third-party action against Domas alleging negligence on his part and demanding indemnification for any damages recovered against it by the Normans. Defense of the third-party action was tendered by Domas to Fidelity, pursuant to the terms of a Comprehensive General Liability insurance policy issued by it to Domas, and Fidelity thereafter filed its appearance and undertook defense of the third-party action. The third-party complaint was subsequently dismissed on motion of Domas (represented by attorneys selected by Fidelity) and an amended third-party complaint was later filed by the City.

The amended third-party complaint alleged Domas’ liability to the City by reason of a “hold harmless” clause in a performance bond executed by Domas with the City prior to his commencement of the sewer repair work. The amended third-party complaint demanded indemnification from Domas for any damages recovered by the Normans against the City. Upon receipt of the amended third-party complaint, Fidelity sent a letter to Dornas informing him of the amended third-party complaint, advising him to put the defense of the matter into the hands of the insurance carrier on the performance bond, and also advising him that Fidelity was withdrawing from the case.

Several weeks prior to the trial date set for the Norman action, Domas’ privately retained counsel notified Fidelity by letter of the court date and reminded Fidelity of its responsibility to defend the action. The letter recited that if Domas suffered judgment in the Norman action, Fidelity would be called upon for indemnification. The Norman action, including the amended third-party complaint, came on for trial and after several days of testimony, the amended third-party complaint was dismissed. A week later Domas was joined as a defendant in the Norman action without notice to Fidelity, and judgment was thereafter entered against Domas in that action.

Domas filed the instant complaint in January 1963 seeking indemnification from Fidelity, costs and expenses incurred by Domas in the defense of the Norman action and attorney fees incurred in the prosecution of this action. Fidelity answered and later filed a motion for summary judgment alleging certain provisions in the policy of insurance which allegedly excluded Domas from coverage thereunder in the Norman action. Domas thereafter filed a motion for summary judgment. The trial court sustained Domas’ motion for summary judgment, denied Fidelity’s motion for summary judgment, and entered the judgment for Domas from which this appeal is prosecuted.

Fidelity first contends that it was not required to defend Domas in the Norman action for the reason that the policy of insurance issued to Domas specifically excluded coverage for liability resulting from contracts or agreements entered by the insured, and that Domas had executed the performance bond to the City of Chicago agreeing to hold the City harmless for damages resulting from Domas’ negligence in connection with the opening to be made in the public street, from which his liability in this regard stems.

The policy of insurance in question provides that Fidelity shall defend any action against the insured which alleges injuries, or the like, even if such action is groundless, false or fraudulent. The “Exclusions” section of the policy provides that the policy does not apply to “liability assumed by the insured under any contract or agreement except (1) a contract defined herein. . . .” The “Definitions” section of the policy defines a “contract” as a “lease of premises, easement agreement, agreement required by Municipal ordinance, side track agreement or elevator or escalator maintenance agreement.” (Emphasis by Court.)

The Municipal Code of the City of Chicago requires a permit from the City before any person is able to make an opening in a public street, and further requires that the person execute a performance bond to the City holding the City harmless for any damages incurred by the City as a result of that person’s activities in this regard before such permit may be issued. The performance bond which Domas executed, and from which his liability in the Norman action resulted, was within the terms of coverage of the policy issued by Fidelity. The amended third-party complaint specifically alleged the existence of the performance bond in question and also alleged Domas’ liability to the City thereunder for any damages incurred by the City in the Norman action. If the pleadings in an action disclose potential coverage under the terms of an insurance policy, the insurance company must defend that action. Sims v. Illinois Nat. Cas. Co. of Springfield, 43 Ill App2d 184, 189-193, 193 NE2d 123. Fidelity was obligated to defend Domas in the Norman action as required by the terms of its policy of insurance and consequently was not justified in withdrawing therefrom upon receipt of the amended third party complaint.

The case of Maryland Cas. Co. v. Zanca, 76 NJ Super 475, 184 A2d 886, cited by Fidelity in support of its position is not in point. In the Zanca case, the contract entered between the insured and the municipality was clearly excluded from the terms of the policy of insurance. Here, the bond executed by Domas to the City was clearly within Fidelity’s own definition of those contracts entered by the insured which were covered by the policy.

Fidelity next contends that Domas cannot recover in this action because he became, without notice to Fidelity, a primary defendant in the Norman action after the amended third party complaint against him was dismissed. The terms of the policy of insurance provided coverage for Domas in the third-party action and Fidelity received notice of that action. Once Fidelity received notice of that action and once it became its duty to defend Domas in that action, it was obligated from that time on to continue the defense of the action. McFadyen v. North River Ins. Co., 62 Ill App2d 164, 170-171, 209 NE2d 833. The fact that Fidelity did not receive notice of the change in Domas’ posture, from third-party defendant to that of primary defendant, does not aid Fidelity, inasmuch as its withdrawal from the Norman action in the first instance was not justified and Fidelity therefore cannot take advantage of the condition precedent provisions of the policy.

The final point raised by Fidelity is that the imposition of attorney fees pursuant to section 155 of the Insurance Code was an abuse of the trial court’s discretion. (See Ill Rev Stats 1967, c 73, par 767.) Section 155 provides that the trial court may allow reasonable attorney fees, within prescribed limits, to a party who is entitled to recover against an insurance company in an action to enforce the terms of the policy of insurance where, inter alia, the insurer’s refusal “upon demand prior to the commencement of the action to pay the amount of the loss ... is vexatious and without reasonable cause. . . .” By the terms of the statute it must appear to the court that the insurance company’s refusal must be both vexatious and without reasonable cause before the court may order attorney fees thereunder. Stock v. Reliance Ins. Co., 96 Ill App2d 8, 238 NE2d 420; Ill Rev Stats 1967, c 73, par 767.

In the instant case there was no showing that the action of Fidelity in withdrawing from the Norman action was vexatious. After receipt of the amended third-party complaint, Fidelity determined that the defense of the action against Domas should be handled by the insurance carrier on the performance bond executed by Domas to the City. See Ostrowsky v. United States Fidelity & Guaranty Co., 4 Ill App2d 202, 204, 124 NE2d 18. The attorney fees of $500 “for vexatious refusal of defendant to represent plaintiff” in the Norman action should not have been allowed.

For these reasons the judgment is modified by striking that portion thereof relating to the allowance of $500 attorney fees for vexatious refusal to defend and, as modified, the judgment is affirmed.

Judgment modified and affirmed.

LYONS, P. J. and McCORMICK, J., concur.


author: MR. JUSTICE McNAMARA

text:
    People of the State of Illinois, Appellee, v. Horace Ruth, Appellant.
    Gen. No. 52,016.
    First District, Fourth Division.
    July 2, 1969.

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

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Joel M. Flaum, and James B. Haddad, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McNAMARA

delivered the opinion of the court.

Defendant, Horace Ruth, was charged with the crime of armed robbery. After a jury trial, he was found guilty and sentenced to a term of 3 to 7 years in the penitentiary. Defendant appeals, contending that he was not proved guilty beyond a reasonable doubt, and that the trial court erred in refusing instructions tendered by defense.

Charles Cathey testified that on January 8, 1966, at about 11:15 p. m., accompanied by his passenger, James Wooten, he drove his 1965 Chevrolet into a parking lot at 5266 South Federal, Chicago. The parking lot had lights; and his headlights and interior lights were on. As he pulled to a stop, a man whom he identified as defendant pulled the door open and held a gun to his face. He identified the gun, and it was introduced into evidence. He was ordered out of the car, and defendant took $15 cash from him. At the same time defendant was robbing the witness, another man holding a gun pulled open the front door on the passenger’s side and robbed Wooten. Defendant then ordered the two complainants to run. The witness backed away, facing the robbers. The two robbers drove away in complainant’s automobile. The witness also testified that defendant was wearing a black leather trench coat and a leather cap; that he was dark-complexioned with big lips; was approximately 5' 10", weighed 145 pounds, and was about 19 years old. Two days after the robbery he went to the police station and viewed about 10 photographs. One picture was of the defendant. He next saw the defendant on January 23, 1966, at the police station. Defendant was in a lineup of 5 men, and the witness identified him. Wooten was with him at the time.

He saw the man who held up Wooten about 2:30 a. m. on the morning following the robbery. That person, Milliard Allen (not involved in this appeal), was in a police car, and the witness’s automobile was also there. He selected the person who held the gun to Wooten out of a lineup at the police station on the same morning after the occurrence. He identified the man on the other side of the car as being light brownskinned, about five feet tall, weighing about 135 pounds, and about 15 years old. He did not have a mustache or glasses. He described the two robbers to the police about 15 minutes after the incident.

James Wooten, the passenger, testified substantially to the same facts as Cathey. He identified defendant in court as one of the two men who robbed them. Both robbers had guns, and took $25 cash and his identification papers from him. When the robbers came to the car, they ordered Cathey and him out of the car, searched the car and drove off with it. The person on his side of the car was about five feet tall with a light complexion, while the man on Cathey’s side was of medium height and dark complexion. Both were wearing black leather coats and black hats. Two days after the occurrence, he looked at 2 or 3 photographs. One was of defendant. On January 23, 1966, at a police lineup, he identified defendant as one of the robbers. There were five men including defendant, in the lineup.

Officer Patrick Moriarty of the Chicago Police Department testified that at about 11:45 p. m. on January 8, 1966, he was in a patrol car with Officer Ray Davis. They were notified that a 1965 Chevrolet had been stolen in a robbery. At about 1:15 a. m., he saw a car pull out of an alley with no license plates, and without headlights or taillights. He and Officer Davis pursued the car into a gas station on the southwest corner of 59th and State, Chicago. The driver jumped out of the car and escaped, and the witness apprehended the other man, Milliard Allen. He found a gun next to Allen, who was trying to hide in the car. Subsequently Cathey identified the automobile as his.

Officer Ray Davis of the Chicago Police Department testified that as he and Moriarty pursued the car into the gas station, he told Moriarty to catch the person on the passenger side. He tried unsuccessfully to apprehend the driver, who fled from the scene on foot. As he ran, the witness had an opportunity to observe the driver and described him as being about six feet tall with dark skin. The man who fled the scene resembled the defendant.

It was stipulated that Officer Patrick Henry of the Chicago Police Department would testify that he removed the rearview mirror of a white Chevrolet, dusted the same with fingerprint powder and marked a latent print for identification. It was also stipulated that Neil Joslyn, a fingerprint examiner, was an expert on fingerprint identification; that he developed a negative of the picture taken by Officer Henry; that he compared the picture with the fingerprint of defendant; and that the latent print proved to be that of defendant.

Officer Roy Carney, a detective of the Chicago Police Department, testified that after he learned the results of the fingerprint test, he arrested defendant. Defendant at first denied he was Horace Ruth.

Donald Carter was called as a court’s witness. He testified that he presently was in the Illinois Industrial School for boys at Sheridan, Illinois. On March 5, 1966, he went to defense counsel’s office in the company of defendant’s parents and gave a written statement to the attorney. That statement indicated and he testified at trial that he and Allen committed the robbery in question. They saw two men sitting in the car, one in front and another in the back seat. Allen had the only gun, and opened the driver’s door, while he searched the man who got out of the back seat. They drove off in the car, and about an hour later they saw defendant. He told defendant that it was his uncle’s car and that he could have a ride. He stopped to get some barbecue and the defendant left to go home. He and Allen drove around, and he parked the car in an alley while he again went to get some barbecue. When he returned, he saw the car in a filling station. The policeman beckoned, and he fled. As he ran, the policeman was shooting at him. He hopped a wall and escaped. Although he knew defendant for 4 years, he would not lie to help him. On March 12, 1966, the police took him to the police station. There in the presence of his mother, he gave a statement to the police that the story he had given defendant’s attorney was phony. At trial in the instant case he testified that it was not a phony story, and that he had told the police that it was phony because the police promised that he would be cleared and not returned to the Illinois Youth Commission. Prior to trial, he also had told police that he and defendant had committed the crime. He testified that this statement also was untrue, and that only his trial testimony was true.

Prior to Carter’s testimony as a court’s witness, the State recalled Cathey and Wooten. Both men were asked to observe Carter who was then in the courtroom. Both witnesses stated that they had never seen Carter before.

Defendant first contends that he was not proved guilty beyond a reasonable doubt because the identification was uncertain and doubtful, and since another person admitted his guilt to the crime.

The testimony of one witness alone, if it is positive and the witness credible, is sufficient to convict, even though the testimony is contradicted. People v. Cox, 22 Ill2d 534, 177 NE2d 211 (1961). And the adequacy of the identification raises a question of the credibility of the witnesses which is a matter for the determination of the jury, sitting as triers of fact with the superior opportunity not only to hear the testimony of the witnesses but to observe their demeanor while on the witness stand. People v. Jackson, 28 Ill2d 566, 192 NE2d 873 (1963); People v. Evans, 25 Ill2d 194, 184 NE 2d 836 (1962).

In this case, there was a positive identification of the defendant by two eyewitnesses. Both witnesses had an ample opportunity to observe the apparently undisguised robbers for some time in a lighted parking area, and both witnesses gave an accurate description of defendant. Cathey was just inches away from the man whom he identified as defendant while the latter pulled open the car door, directed the victim to get out of the car at gunpoint, and took his cash. Additionally, Cathey testified that he continued to face defendant as he was directed to the rear of the car, and when ordered to run, he backed away, continuing to observe his assailant. Moreover, the victim’s identification of defendant is strengthened by the competent and admissible testimony of the police officer that the man whom he pursued resembled the defendant. There was also corroboration of the eyewitness testimony by virtue of the discovery of defendant’s fingerprint on the rear view mirror of the stolen car.

We are unable to reach defendant’s conclusion that the victims were unable to identify defendant as their robber from looking at the photographs. The only testimony in the record is that each victim viewed photographs, and that one was of the defendant. While both victims viewed the photographs together and went to the police station lineup together, there is no showing that the identifications were products of suggestion and not independently made.

Defendant cites People v. Cullotta, 32 Ill2d 502, 207 NE2d 444 (1965) in support of his proposition that the identification in the case at bar was doubtful and uncertain. In that case, defendant was identified by two policemen who had a fleeting glance at him in a store as they drove by in their squad car. Such an identification is distinguishable from that in the instant case where two witnesses had adequate opportunity to observe defendant during the robbery.

The credibility of a witness is for the jury to decide. People v. Woodruff, 9 Ill2d 429, 137 NE2d 809 (1956). In the instant case, the triers of fact obviously did not believe Carter’s confession of guilt, and rejected his testimony. We find that such a decision by the jury was supported by the evidence. Carter’s testimony at trial that it was he, and not defendant, who participated in the robbery, was impeached by his previous inconsistent statement which he had given to the police. While he testified that he gave such a statement to the police in return for a promise that he would not be sent back to the Illinois Youth Commission, the record reveals that he did give the statement, and was accompanied by his mother at the time. Moreover, his version of the robbery was contradicted by the victims in several important respects; he testified that the passenger was in the back seat, while both victims testified that the passenger was in the front seat; he testified that Allen had the only gun, whereas the victims testified that each robber had a gun; and he testified that Allen held up the driver, while the victims testified that Allen held up the passenger.

We find that the identification was certain; that the jury properly discredited Carter’s testimony; and that defendant was proved guilty beyond a reasonable doubt.

Defendant next argues that the court committed prejudicial error in refusing certain instructions tendered by defendant. Defendant first tendered Instruction No. 1 which reads as follows:

“The court instructs the jury, so far as the identity of the defendant is concerned, that if they believe, from the evidence and the circumstances proved, that there is reasonable doubt whether the witness might not be mistaken as to his identity, then the jury would not be authorized to convict the prisoner.”

When the court refused the above instruction, defendant tendered Instruction No. 2, which reads as follows:

“The possibility of human error or mistake, and the probable likeness or similarity of objects and persons are elements that you must act upon in considering testimony as to identity. You must consider these factors passing upon the credibility that you attach to the witness’s testimony, and you must be satisfied beyond a reasonable doubt as to the accuracy of the witness’s identification of the defendant.”

The court also refused the above instruction. The court, over the objection of defendant, gave State’s Instruction No. 6. It reads as follows:

“The Court instructs the jury that in determining whether or not the defendant has been identified as the person who committed the offense charged in the indictment, if any such offense was committed, you must consider all the testimony in the case, both that for the prosecution and that for the defendant; considering the means of identification; the circumstances under which he was identified; the opportunity for identifying the said defendant; the description of his apparel as stated by the witnesses ; and the probabilities or improbabilities that it was the defendant — and if after so judging and weighing the testimony you are satisfied beyond all reasonable doubt that the defendant has been correctly identified as the person who committed the offense as charged in the indictment, it is your duty to find the defendant guilty.”

In refusing defendant’s two tendered instructions concerning identification, the trial judge stated that the above State’s instruction, along with the instructions on credibility and presumption of innocence, adequately covered the subject of identification. We agree with the trial judge that the giving of either of defendant’s instructions would be unnecessarily repetitive, and that the State’s instruction adequately sets forth the law on identification. We do not agree with defendant that the failure of the given instruction to mention the possibility of human error or mistake constituted reversible error. Nor do we find that the differences in phrasing and nuances between the given instruction and defendant’s tendered instructions were so significant as to have been prejudicial to defendant. We hold that the instruction given sets forth the law as to identification with sufficient accuracy. We also assume that in the future, as per committee recommendations, no instruction will be given on the circumstances of identification (See IPI— Criminal, § 3.15), but that the subject will be covered by IPI — Criminal Instruction No. 1.02 concerning credibility of witnesses, thus obviating the objection in this case.

The judgment of the Circuit Court is affirmed.

Judgment affirmed.

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


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Frank Evans, Defendant-Appellant.
    Gen. No. 52,342.
    First District, First Division.
    July 2, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard Trais, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a bench trial, defendant Frank Evans was found guilty of “attempt rape” (Ill Rev Stats, c 38, § 8-4). He was sentenced to the penitentiary for a term of five to twelve years. On appeal defendant contends that he was not proved guilty beyond a reasonable doubt because the testimony of the complaining witness was neither clear and convincing nor substantially corroborated, and that the evidence shows she made no effort to resist.

On October 19, 1966, the prosecutrix, Josephine Johnson, lived in an apartment at 4308 Congress Parkway with four of her thirteen children — Lavador, 14; Billy, Jr., 11; Margie Ann, 9; and David, 8. They had been watching television, and about twelve midnight she left home to purchase cigarettes. She initially went to a gas station, but not finding her particular brand available, she then went to a tavern, Mickey’s 400 Club, where she purchased cigarettes and left. Defendant followed her home and entered her apartment four times in the early morning hours of October 20, 1966. Mrs. Johnson testified that on the third of these occasions the defendant attempted to rape her. Defendant maintains that he had been drinking at the tavern with Mrs. Johnson most of the previous evening and into the early hours of the morning and had escorted her home primarily for the purpose of hanging a mirror, but also because of Mrs. Johnson’s offer of prostitution.

Mrs. Johnson testified that after she purchased the cigarettes at the tavern, defendant followed her out of the tavern and asked her to return with him to have a couple of drinks. She refused, and he followed her home. She had difficulty unlocking the door of her first-floor apartment and when she finally did so, the defendant “pushed right in on me” into her living room, threw her on the floor, and announced he was going to have intercourse with her. As she was fighting with him, he bumped her head on the floor, and she started screaming for her daughter Lavador. She stated, “All my kids got up out of bed and ran in there. Lavador picked up a statue and hit him on the top of the head with it. Billy hit him first with his fist and picked up an iron pipe. I picked up my end table and hit him on the side of the head. He was kicking; he threw one of my cocktails [table] back at me and then he ran out the door. He started kicking on the door, screaming, ‘Throw me my sweater and hat out.’ I called the police officer. Later I threw his sweater and hat out of the window. The police arrived ; I had a conversation with them. After they left he threw a two by four through my window. I looked out the window and he was going down the street. The man who threw the two by four through my window is in the courtroom — the second man with the mask on his face [for health purposes defendant wore a mask in court]. He is the man I saw running down the street. After that happened, I called the police officer again. The police came; I had a conversation with them, and they left my premises. Then I sat on my couch. I dozed off and went to sleep. Billy Jr. was in the room with me, on the floor by me on the rug. The next thing I remember, I felt something on my neck and I jumped and threw my hand up. I observed this man with the mask on had a knife on my throat. When I threw my hand up the knife cut my ear and he put the knife back on my throat and told me I’d better not scream or else he would kill me. He said, ‘Get up off the couch and walk into the bedroom.’ I told him I couldn’t get up with the knife on my throat. He said, ‘You better get up.’ So then I got up. He walked me to my bedroom with the knife at my throat.”

At defendant’s command, and with a knife at her throat, she removed most of her clothing and lay on the bed. “As I lay down he fell right on top of me, with the knife still on me. I did not scream at this time. He didn’t rip my clothes. He didn’t make any bruises on my face or arms. ... He still had the knife on me, but it didn’t cut me. I don’t know how long I was in the bedroom with him. It wasn’t too long before my children came in screaming. He was still on top of me. He attempted to place his penis in my vagina. I wasn’t fighting him at that time. I didn’t scream.” Defendant was about to commence intercourse “when my kids began to scream and holler and my daughter Lavador said she was coming in the room and leave my momma alone. He said, ‘If that girl comes in this bedroom I am going to kill you and your kids too.’ I pleaded with him and asked him not to bother my children, that I would do anything he said if he would just let me get up and talk my kids back to bed. He said if I tried anything he would kill the children and myself. I told him I wasn’t going to try anything if he’d just please not bother my children; that I’d do anything he said when I had gotten the kids back to bed. He took the knife off my throat. I leaped off the foot of my bed and ran and pushed my kids out through the back door.”

Together with the four children, the prosecutrix ran through the yard and a neighbor called the police. “After that Lavador and I returned to the house. The other children I left with the man by his station wagon. When I returned to the house I searched it as I went through and I locked my doors. I looked up in my front door and there that gentleman with the mask was right back there again. I walked to my front window, which was broken, looked out, saw the police officer coming and hollered out to him, ‘There is the man.’ The defendant was right in my front door.” Defendant was arrested and searched, and two knives were taken from his person, one of which the prosecutrix identified as “my butcher knife.”

Lavador, Mrs. Johnson’s 14-year-old daughter, testified that Mrs. Johnson had been home all evening and later left to buy cigarettes. Subsequently she heard her mother call her name and, on entering the living room, saw Mrs. Johnson and the defendant struggling on the floor. Lavador and the other three children began striking defendant. Lavador left the room and returned with a knife (People’s Exhibit 2) and gave it to her mother. Mrs. Johnson was in the living room, and defendant had already run out of the door. The police came and then left. The defendant left a hat and a pink sweater in the house, and her mother threw them out of the window. Then a two by four was thrown through the window, and she saw defendant run. The police were called again and left. Lavador and her sister went to bed, and she told her brothers to stay in the front room because her mother went to sleep on the couch. David went back to bed, but Billy, Jr., stayed with her mother.

Later, Billy came into her room and awakened her. The four children went into the kitchen, and Lavador stated, “I gave Margie and David a milk jug and Billie that pipe of the divider. And I had a chain and a hammer. Then we went back into the front room. I observed some blood on the arm of the sectional couch.” They opened the door to her mother’s bedroom, and the light was off. “We couldn’t see anything in the room. I heard somebody say, get away from that door. . . . My mother came out of the room. She had on a blouse and her slip. She didn’t have her shoes on. She told us to run out the back door.” The four children and Mrs. Johnson ran to a neighbor. Later Lavador and her mother returned to their home. Defendant returned and was arrested.

Billy, Mrs. Johnson’s 11-year-old son, testified that she went out for cigarettes about midnight. He corroborated the .testimony of his sister and mother and identified People’s Exhibit 2 as the family kitchen knife.

Another witness for the State, Police Officer John Grimes, described the arrest of defendant in the early morning hours of October 20, 1966, on the steps of 4308 West Congress. Defendant was taken back into the house, where the victim and her children were all screaming. Two knives were found on the defendant.

Defendant testified that he was at Mickey’s 400 Club on October 19, 1966, from 6:00 p. m., and he met Mrs. Johnson in the tavern early in the evening. They drank heavily together for a number of hours. “I would say we were both intoxicated. We left the tavern at five minutes to two o’clock. They put us out.” During the course of the evening Mrs. Johnson had suggested prostitution to the defendant and also asked him about hanging a mirror in her apartment. After leaving the tavern, they went to Mrs. Johnson’s apartment, and her daughter let them in. After drinking for awhile, Mrs. Johnson mentioned money to the defendant. When defendant started to leave because Mrs. Johnson did not show him the mirror, Mrs. Johnson grabbed him, they struggled and fell to the floor, and “her kids came running and one of them hit me on the head with something. The other kid hit me on my back. I did not force my way into her door. I did walk in with her. She invited me into her house. I never followed her from the tavern. I walked with her.” He returned four times. The first time he returned to get his sweater, which was given to him. The second time he returned to toss a two by four through the window, because of his anger over being rudely treated after being invited into the apartment. The defendant then went to a restaurant on Madison Street and ate bacon and eggs or rib tips at about 3:30 or 4:00 a. m. The third time he returned to the apartment the door was open, and he entered. Mrs. Johnson was lying on the couch, and her son was lying on the floor next to her. Defendant shook her and said, “‘Why did you and the kids jump on me?’ I said, T come to see if I could put the mirror up for you that you wanted to put up, and about the other thing, I didn’t go that way, I said, if I want something, I have a girl I can go to.’ I was just explaining this was a business deal. She didn’t say anything. She got up off the couch and went to her bedroom and said, ‘Come behind me.’ She started pulling off her clothes voluntarily. ... I did not take a knife out of my pocket while I was in there the second time.” The door to her bedroom was open, and the lights were off. Mrs. Johnson removed part of her clothing and lay on the bed, and “by that time, the kids started, ‘Leave my mother alone.’ She said, T will go and talk to the kids.’ Next thing I knew she had run out through the back. I got up and left. ... I waited by the next building because I wanted to talk to her. Because I wanted to see if she wanted the mirror put up.” After waiting about ten minutes, he saw them coming back to the house and went over to talk to them, and while trying to talk to her, “she hollered, ‘There he is, he is the one.’ ” Defendant was then arrested and taken to the police station.

A witness for the defense, Edward Pickens, testified he was an old friend of the defendant. He saw defendant in Mickey’s at about 6:45 p. m. He saw Mrs. Johnson come into the tavern between 8:00 and 8:30. She was drinking at the bar, and defendant was talking to her when Pickens left “about a quarter to nine.”

Another witness for the defense, Gail Randall, testified that she was a barmaid at Mickey’s. On the night of October 19, 1966, defendant entered the tavern between 6:00 and 7:00 p. m. Shortly thereafter, Mrs. Johnson entered, and she and defendant were in the tavern together for the entire evening. They were both intoxicated by the end of the evening, and at about 2:00 a. m. they were ejected because Mrs. Johnson was cursing and bothering the bartender.

In finding defendant guilty, the trial judge remarked: “The defendant is guilty beyond a reasonable doubt. That is it. There is absolutely no doubt at all. What to do about a case like this is to fight back temptation of the person. He did that by getting on the stand, telling a ridiculous story. I am going to overcome that temptation. You got on the stand and told a story that is absolutely preposterous. And he knew it was preposterous when he told it.”

Defendant asserts that “the crucial question in this case is whether Mrs. Johnson was assaulted in her bedroom by a stranger who followed her home, or whether she entered the bedroom after spending a considerable amount of time with that individual during the course of the evening in a tavern and later for a period of about a half hour in her own living room. The testimony by the prosecutrix is contradicted not only by the barmaid and a patron of the tavern, but by prosecutrix’s own statement to the police on the evening in question. The preponderance of the evidence indicates that on the evening in question, Mrs. Johnson and defendant met and drank together in a tavern; that Mrs. Johnson became intoxicated and was ejected from the tavern because of such intoxication; that the couple proceeded together to Mrs. Johnson’s apartment where they sat together drinking and quarreling about money; that Mrs. Johnson and her children insisted defendant leave the premises at that time; that defendant, confused and angry, returned to the apartment later that same morning on three different occasions; that on the second of those occasions defendant was in the living room with prosecutrix and her son for about half an hour before accompanying Mrs. Johnson to her bed; that the other four occupants of the apartment knew of this situation and made no attempt whatsoever to obtain assistance on their mother’s behalf. The only conclusion one can reach is that defendant is not guilty of attempting to compel the prosecutrix to submit to an act of sexual intercourse by force and against her will.”

Defendant further argues that it is the obligation of the State to show that the act of attempt to rape was committed by force and against the will of the female, but in the instant ease the prosecutrix testified on cross-examination that she herself removed her clothing in the bedroom and lay down on the bed, and that she made no attempt to fight the defendant or to scream for help, and “as explanation for her lack of resistance, prosecutrix testified that she was afraid to fight back because defendant had a knife on her neck. . . . There is absolutely no substantial evidence or corroboration to indicate that the act complained of was committed by force and against the will of the prosecutrix.”

The State maintains that the testimony of the prosecutrix was clear and convincing and sufficiently corroborated. The State asserts that the prosecutrix testified consistently on both direct and cross-examination that (1) she was awakened during the early morning hours of October 20, 1966, by the defendant, who was holding a knife on her neck; (2) the defendant told her not to scream and ordered her into the bedroom; (3) the prosecutrix continuously pleaded with the defendant to take away the knife; (4) she was forced to remove her clothes at knife point; (5) he (the defendant) attempted to place his penis in her vagina when the children came into the bedroom screaming; and (6) the prosecutrix and her children then ran out of the house and immediately summoned help.

The State contends that the defense witnesses, Pickens and Randall, were confused as to dates, and their testimony was conflicting and unreliable. The State asserts that the testimony of defendant was simply unbelievable, and “there was no duty upon the court to believe the defendant’s explanation (or the testimony of his witnesses) for when a ‘defendant elects to justify or explain his presence at or near the scene of a crime, while denying participation, he must tell a reasonable story, or be judged by its improbabilities.’ ” People v. Spagnolia, 21 Ill2d 455, 458, 173 NE2d 431 (1961).

The State argues that the totality of the circumstances surrounding the attempted rape indicates the complete failure of the defendant, despite many attempts, to establish any relationship with the prosecutrix save that of an intruder and an attempted rapist.

We believe the following authorities supply the guidelines to be applied here:

People v. Stagg, 29 Ill2d 415, 421, 194 NE2d 342 (1963):

“In a prosecution for the crime of assault with intent to rape the testimony of the prosecutrix alone, if clear and convincing or if substantially corroborated by some other fact, evidence or circumstance, is sufficient to convict. . . . And the credibility of witnesses is ordinarily a matter exclusively for the jury to determine. . . . However, this rule does not preclude a reviewing court from in all instances considering the question of credibility of witnesses, particularly where a sex crime is involved where it is relatively easy to accuse even reputable persons and sometimes difficult to become disentangled from so heinous an imputation. Therefore, where, as here, the testimony of the prosecutrix alone is relied upon for a conviction, that testimony must be clear and convincing, and if it has been impeached, is inherently improbable, or is such that reasonable minds could not believe it, the conviction must be reversed.”

People v. DeFrates, 33 Ill2d 190, 194, 210 NE2d 467 (1965):

“Where, as here, the charge is forcible rape, it must be proved beyond a reasonable doubt that the act of intercourse was performed forcibly and against the will of the complaining witness. And while useless or foolhardy acts of resistance are not necessary, if the prosecutrix has use of her faculties and physical powers, the evidence must show such resistance as will demonstrate that the act was against her will. . . . Voluntary submission by the female, while she has the power to resist, no matter how reluctantly yielded, amounts to consent and removes from the act an essential element of the crime of forcible rape.”

At p 196:

“A defendant should not be deprived of his liberty without clear and convincing evidence of his guilt. From a careful review of all the evidence we are forced to conclude that a reasonable doubt of guilt exists which will not permit the conviction to stand.”

People v. Mack, 25 Ill2d 416, 420, 185 NE2d 154 (1962):

“Where we have reversed cases because of failure to corroborate the testimony of the complaining witness, we have done so not because of any fixed rule requiring corroboration but because, upon the state of the record in the particular case, the evidence left a reasonable doubt as to the guilt of the defendant.”

People v. Kepler, 76 Ill App2d 135, 141, 221 NE2d 801 (1966):

“[T]he charge of rape is an accusation easily made, hard to prove, and even harder to be defended against by the accused. ... A reviewing court will not hesitate to reverse a conviction where, after a review of all the evidence, there exists a grave and substantial doubt as to the guilt of the defendant due to a lack of credible evidence or the existence of improbable or unsatisfactory evidence.”

After a careful scrutiny of the evidence upon which defendant’s conviction rests, we conclude the testimony of the children is believable and corroborative of most of the events which occurred at their home, and which were substantially admitted by the defendant. Their testimony presented a pathetic situation of children frantically trying to protect their mother from harm. However, we think there exists a “grave and substantial doubt” that defendant’s attempt at sexual intercourse was performed with force and against the will of the prosecutrix. The testimony of the prosecutrix presents a fantastic and incredible sequence of events, commencing with her midnight quest for cigarettes of her special brand, which led her to a tavern which she had never been in before, and concluded with attempted rape by a “stranger” who had “followed her home.” We agree with the trial court that defendant told a ridiculous story, but we believe the same observation applies to the testimony of the prosecutrix. We think it is reasonable to infer that the conduct of defendant was not that of a complete stranger, and that his activities were the result of some invitation extended to him by the prosecutrix earlier in the evening. Although his testimony reflects untruths, the testimony of the prosecutrix, standing alone, is not clear and convincing and is so inherently improbable that reasonable minds could not believe it. There is no corroboration of the material elements of force and lack of consent. People v. Qualls, 21 Ill2d 252, 171 NE2d 612 (1961).

Although great weight is attached to the findings of the trier of the fact, including his appraisal of the credibility of the witnesses, they are not conclusive, and it is our duty to set a conviction aside where the evidence is so unsatisfactory as to raise a reasonable doubt of defendant’s guilt. In our opinion, the totality of the circumstances here leaves a reasonable doubt of the defendant’s guilt and fails to create an abiding conviction that he is guilty of the crime charged. People v. Eeese, 34 Ill2d 77, 80, 213 NE2d 526 (1966); People v. Hubbard, 38 Ill2d 104, 111, 230 NE2d 220 (1967).

Therefore, for the reasons given the judgment of the Circuit Court of Cook County is reversed.

Reversed.

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


author: MR. JUSTICE STAMOS

text:
    In re Application of the County Treasurer and Ex-Officio County Collector of Cook County for Judgment for Sale of Real Estate for Delinquent Taxes for the Year 1963 and Prior Years. Petition of Winnetka Investment Co. for Tax Deed, Petitioner-Appellee, on Answer of Joan Fried and Nathan Schwartz, Respondents-Appellants.
    Gen. No. 52,595.
    First District, Fourth Division.
    July 2, 1969.

      Bernard Allen Fried, of Chicago, for appellants.
    Victor S. Peters, Jr., of Northfield, for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

Respondents appeal from an order directing the County Clerk of Cook County to issue a tax deed to petitioner, the holder of tax certificates of purchase. This appeal is from a consolidated proceeding involving two parcels of unimproved real estate with identical parties and issues.

The issue presented for review is whether the respondents as beneficiaries under an Illinois land trust are such “parties interested in the real estate” as to require that they be served with notice pursuant to sections 263 and 266 of the Revenue Act of 1939, Ill Rev Stats, c 120, §744, §747 (1965).

On June 21, 1967, petitioner filed its applications for orders directing the issuance of tax deeds wherein it recited that it had filed its petitions and that “all notices required by law to be given have been given and that petitioner had complied with all the provisions of law entitling it to a tax deed.” The period of redemption as extended expired on June 19, 1967, and the petitioner indicated that it would appear in the Circuit Court for the issuance of the tax deeds on June 30,1967.

On June 27, 1967, respondents appeared by their attorney and filed their answer. Respondents alleged they were beneficiaries under a trust agreement wherein First National Bank of Waukegan is trustee; and their names were known to the applicant herein; and that as a consequence, they were entitled to statutory notice; that no notice was served upon either of the respondents and prayed that the applications for tax deeds be denied. Petitioner replied and denied knowledge of the relationship of said respondents to the land trust; denied respondents were entitled to notice; admitted that personal service was not had upon respondents; but that notice was given them if they were beneficiaries by service of notice upon the trustee. After a hearing the court ordered the issuance of tax deeds and respondents appealed.

In determining whether beneficiaries of a land trust are entitled to notice in a tax proceeding we must consider the character of an Illinois land trust. In Levine v. Pascal, 94 Ill App2d 43, 50, 236 NE2d 425 (1958), this court said:

“The Illinois land trust, by its very nature, is characteristically different from common-law land trusts. While the common law accomplishes a split between the legal title in the trustee and the equitable title in the beneficiary, in an Illinois land trust, the trustee has both legal and equitable title. (See Chicago Federal Savings & Loan Ass’n v. Cacciatore, 33 Ill App2d 131, 138, 178 NE2d 888.) By placing with the trustee the 'full, complete and exclusive title to the real estate, both legal and equitable,’ the beneficiary in an Illinois land trust is left with a personal property interest only. Chicago Federal Savings & Loan Ass’n v. Cacciatore, 25 Ill2d 535, 185 NE2d 670. Numerous other cases stand for the proposition that the interest of the beneficiary of an Illinois land trust is personal property.” (Cases cited.)

Only the land trustee and not the beneficiary can accept an offer to purchase the real estate, Schneider v. Pioneer Trust & Savings Bank, 26 Ill App2d 463, 168 NE2d 808 (1960); the trustee and not the beneficiary is the proper party to bring a forcible detainer action, Liberty Nat. Bank v. Kosterlitz, 329 Ill App 244, 67 NE2d 876 (1946); the beneficiary of a land trust is not a necessary party in a suit to condemn property, Chicago Land Clearance Commission v. Darrow, 12 Ill2d 365, 146 NE2d 1 (1957).

In Chicago Federal Savings & Loan Ass’n v. Cacciatore, 33 Ill App2d 131, 178 NE2d 888 (1961), affd 25 Ill2d 535, 185 NE2d 670 (1962), at page 140 this court said:

“Experience over many years has shown that a land trust performs many commercially useful purposes. It goes far to obviate the cumbersome nature of real estate transactions when there are multiple owners. In the same circumstance, it can simplify the management and financing of real properties and it is especially useful in the financing and marketing of subdivisions and large scale home or apartment building enterprises. Intolerable delays and sometimes insurmountable legal entanglements may result from the death, incompetency or disappearance of an owner of a fractional interest in land. These, too, can be eliminated by the judicious use of a land trust.
“As a result, the Illinois land trust has made for itself over the years an important place in the holding and marketing of titles to real estate, in parcels large and small. It is self-evident that this development could not have taken place had not purchasers and lenders considered themselves safe when investing many millions of dollars on the sole security of land trustees’ titles to real estate. In this they were repeatedly assured by courts of review that the trust beneficiaries had no interest in the real estate, and that even so strong a charge as a judgment lien against a trust beneficiary was, therefore, no encumbrance against the real estate title.”

The term “parties interested in the real estate” has been discussed in several Illinois cases. In re Estate of English, 24 Ill2d 357, 181 NE2d 111 (1962), it was argued that the administrator and the creditors of a decedent were “persons interested” in his real estate within the meaning of sections 263 and 266 of the Revenue Act of 1939 (Ill Rev Stats, c 120, §§ 744, 747) requiring notice, in tax deed proceedings, to be served upon occupants, owners and “parties interested in the real estate” and that since no notice was served upon the appellants and other creditors of the estate the court was without jurisdiction to order issuance of the tax deed. The court said at page 358:

“An administrator takes no interest in the land of decedent, except a naked power to sell in case the personal estate is insufficient to pay debts, and neither he nor a creditor whose claim has been allowed holds a lien upon the land. (Cases cited.) Such persons are not ‘interested in the real estate,’ within the meaning of the provisions requiring personal notice in tax-deed proceedings.”

In Remer v. Interstate Bond Co., 21 Ill2d 504, 173 NE2d 425 (1961) the court at page 513 said:

“We now direct our attention to the claim of petitioner that she was entitled to personal notice under the provisions of the Revenue Act by reason of her ownership of the two notes secured by the mortgage, and that in the absence thereof she was denied due process of law. We believe this claim to be untenable for the simple reason that there is no requirement in the statute that personal notice be given to a note-holder. Furthermore, we believe such a provision often would be wholly impracticable because of the multitude of persons holding notes and bonds secured by trust deeds.”

In Glos v. Evanston Bldg. Ass’n, 186 Ill 586, 58 NE 374 (1900), the petitioner sought to enjoin the county clerk from issuing a tax deed alleging that the mortgagee was a “party interested in such real estate” and had not been notified by the purchaser of the expiration of the period of redemption pursuant to law. The court said at page 590:

“The question whether, within the meaning of this statute, a mortgagee is an interested party and entitled to be notified by the purchaser of the expiration of the time of redemption, is not an open question in this court. In the case of Smyth v. Neff, 123 Ill 310, we held that a mortgagee, by virtue of this statute, is not entitled to such notice; that the statute must be regarded as meaning the same as though the words ‘or parties interested’ were omitted; that the legislature having failed to designate the ‘person interested’ in lands sold for taxes and special assessments, other than the owners or persons in possession or in whose name the land is taxed or assessed, the purchaser is not required to serve any notice of his purchase upon the person holding a mortgage or other lien upon the land in order to entitle himself to tax deed. We say on page 320: . But as the statute now is, the purchaser cannot know, from any direction given, to whom he is expected to give such notice as the statute requires, other than to the owner. In that respect the statute must be regarded as meaning precisely the same as it would mean if the words “or parties interested” had been omitted. In this case the owner was served with the statutory notice within apt time, and that is deemed a sufficient compliance with the law in this respect.’ ”

Subsequently, the legislature in 1911 amended Ill Rev Stats, c 120, § 744 to obviate the result of Smyth and Glos, supra, by adding “including trustees and mortgagees of record” thus expanding the description of those persons entitled to be served with notice. The statute today is practically identical to the notice requirements of the 1911 statute.

Respondents rely upon the terms of the trust agreement to argue that title to the property is taken by the trustee “for the ultimate use and benefit of the beneficiaries” who retain the power of direction to deal with the title to the property and receive the proceeds of sales, mortgages, rentals and the like. Respondents further argue that the beneficiaries here retain the “management and control of the renting, handling, encumbering, selling or making any other disposition of the property” and that the trustee has no duties in regard to the payment of taxes. It is thus contended that the beneficiaries are “interested in the real estate.”

However, the trust agreement also recites that it is the intention of all the parties thereto that full legal and equitable title vest in the trustee and in event of a beneficiary’s death, the interest shall pass to the executor or administrator and not to heirs-at-law. It further recites that no beneficiary now has, or shall thereafter at any time have, any right, title or interest in or to any portion of said real estate as such, either legal or equitable, but only an interest in the earnings, avails and proceeds.

There are a myriad of devices and methods available by which property or a thing of value can be owned or controlled. The obvious devices are a basic sole owner, a partnership, a joint venture, a corporation, a trust and variations of the foregoing as to liability, interest, control and authority. The Illinois land trust is another method of controlling property and as with any form of ownership the attendant areas of liability, control and interest vary. Each method has its peculiar advantages and disadvantages and our legal profession is constantly seeking to provide clients with the greatest degree of control and authority and the minimum exposure to any liability, inconvenience and cost.

It is conceivable that beneficiaries of an Illinois land trust would move with alacrity to argue their personal property interest in event of judgments as would their executors and administrators before a probate court.

Thus we see that the respondents in their present posture regarding the real estate cannot be permitted to adopt a legal entity and be blessed with both a sword and a shield depending upon the varying facts and circumstances.

A shareholder of a corporation whose only asset is a parcel of real estate, and especially in the many close corporations of this jurisdiction, could with equal vigor and argument claim an interest in the real estate. The legal consequences of the Illinois land trust do not provide the beneficiary with an interest that is entitled to notice in the proceedings now before us.

Judgment is affirmed.

Judgment affirmed.

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

       Section 263 of the Revenue Act of 1939, as amended, Ill Rev Stats, c 120, § 744 (1965):
      . . Such purchaser or assignee shall serve, or cause to be served, notice of such purchase . . . upon the following persons: . . . the owners of, or parties interested in such real estate, including trustees and mortgagees of record. . . .”

       Section 266 of the Revenue Act of 1939, as amended, Ill Rev Stats, c 120, § 747 (1965):

        “. . . Notice of the fact of the filing of the petition . . . shall be given to occupants, owners, and persons interested in the real estate in the same manner as provided in section 263. . . .”


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thaddeus Sims, a Minor, Defendant-Appellant.
    Gen. No. 52,631.
    First District, Fourth Division.
    July 2, 1969.

      Robert A. Shuker, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Edward Stasukaitis, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

After a hearing, without a jury, on a delinquency petition, defendant was found delinquent and was placed on probation.

POINT RAISED ON APPEAL

The thirteen-year-old complaining witness was incompetent to testify.

EVIDENCE

When the State called the complaining witness, Randolph Brown, it was established that he was 13 years old. Defense counsel then requested that the court conduct an inquiry to ascertain the competence of the witness before permitting him to testify. The following ensued:

THE COURT: “Do you know what will happen to you if you don’t tell the truth?”
A. “No.”
ASSISTANT STATE’S ATTORNEY: “Do you know what will happen to you if you don’t tell the truth ?”
A. “No.”
Q. “What happens to you if you tell a lie?”
A. “I don’t know.”
THE COURT: “Are you going to tell the truth in this hearing?”
A. “Yes.”
DEFENSE ATTORNEY: “What is the truth, Randolph; what does it mean, the truth?”
A. “ (No response.) ”
THE COURT: “Proceed.”
DEFENSE ATTORNEY: “Your Honor, for the record, I would object at this time; the boy stated first of all he doesn’t know the consequences of either telling the truth or lying; and this is a proceeding which is sanctified by the oath to give strength to the testimony; secondly, the boy is unable to answer the question as to what the truth is. It is my contention by these answers that the Court is competent to — ”
THE COURT: “The Court will ascertain the credibility of this testimony; please proceed — ”

The witness then testified concerning the incident in question, at the conclusion of which defense counsel moved to strike his testimony.

THE COURT: “I can’t dismiss his testimony and I won’t.”
DEFENSE ATTORNEY: “On the grounds again that he’s incompetent to testify.”
THE COURT: “The Court will weigh the credibility of the competency. We’re dealing with a juvenile; we’re dealing with the most difficult testimony, the Court is well aware of it.”

OPINION

Defendant contends that the preliminary inquiry of the thirteen-year-old complaining witness failed to establish his competence to testify, and that, as a result, the trial court abused its discretion in permitting his testimony to be given.

In this state, every person who is fourteen years old is presumed competent to testify. Shannon v. Swanson, 208 Ill 52, 69 NE 869; People v. Karpovich, 288 Ill 268, 123 NE 324. When a child under that age is called to testify, it is the duty of the trial judge to determine first whether the child is competent as a witness. Knab v. Alden’s Irving Park, Inc., 49 Ill App2d 371, 199 NE2d 815; People v. Crews, 38 Ill2d 331, 231 NE2d 451. To do this, the judge must hold a preliminary inquiry into the competency of the proffered witness by examining the child’s intelligence, understanding, and moral sense. People v. Johnson, 298 Ill 52, 131 NE 149; People v. Crowe, 390 Ill 294, 61 NE2d 348; People v. Davis, 10 Ill2d 430, 140 NE2d 675; Epstein v. Berkowsky, 64 Ill App 498. If testimony is to be permitted, the court’s inquiry must, with reason, satisfy the judge that the witness is sufficiently mature (1) to receive correct impressions by his senses, (2) to recollect these impressions, (3) to understand questions and narrate answers intelligently, and (4) to appreciate the moral duty to tell the truth (and comprehend the meaning of the oath). People v. Ballinger, 36 Ill2d 620, 225 NE2d 10; Shannon v. Swanson, supra; People v. Karpovich, supra; People v. Johnson, supra; People v. Crowe, supra; People v. Davis, supra; Knab v. Alden’s Irving Park, Inc., supra; Dallas v. Granite City Steel Company, 64 Ill App2d 409, 211 NE2d 907; Wheeler v. United States, 159 US 523. This decision of the trial judge may be reviewed, but, because of his unique position and the latitude of his discretion in this matter, his decision will not be reversed unless there has been an abuse of discretion or a manifest misapprehension of a legal principle. Shannon v. Swanson, supra; People v. Karpovich, supra; People v. Davis, supra. It is our conclusion in the instant case, however, that the abbreviated preliminary inquiry (set forth above in its entirety) did not meet the requirements of the cases cited; that it did not, therefore, establish that the witness was competent to testify; and that permitting him to do so, in this circumstance, constituted an abuse of the court’s discretion.

The State argues that the procedure for determining preliminarily the competency of a juvenile witness should be limited to jury cases, since in a bench trial the judge passes on both the competency and the credibility of the witness; that if, during the course of testimony, the witness shows himself to be incompetent to testify, the trial judge may then disregard his testimony; and that, on the other hand, a witness, during the course of his testimony, may reveal himself to be competent. This argument fails, however, because the points to be covered in a competency inquiry are rarely discernible through testimony on the trial issues, and a judge, no less than a juror, must shield his mind from the prejudicial effect of incompetent evidence. It is for this reason that the procedure for prior determination of competency has been applied not only to jury trials but also to bench trials or hearings without a jury. People v. Tappin, 28 Ill2d 95, 96-98, 190 NE2d 806; People v. Crews, 38 Ill2d 331, 337-338, 231 NE2d 451.

The State also argues that the cases cited in support of defendant’s appeal are distinguishable, because in those cases the juvenile witnesses testified to occurrences they had heard or observed between the defendant and a third party, whereas the complaining witness in the case before us was testifying to a degrading and outrageous assault upon himself. This distinction could-cut either way, and we do not believe that it can be counted on to enhance the reliability of the witness to the point of obviating the necessity for an adequate preliminary inquiry as to competency.

With no intention to narrow in any way the general application of the governing rule in this case, we should like to emphasize its importance here since the complainant was the State’s only witness, and his charges were denied by defendant.

DECISION

The judgment of the Circuit Court is reversed and the cause is remanded for a new trial.

Reversed and remanded.

DRUCKER, P. J. and McNAMARA, J., concur.