text:
    J. C. & S. Corporation, an Illinois Corporation, and John Castrogiovanni, Anthony Castrogiovanni, Joseph Castrogiovanni, and Alfred Castrogiovanni, d/b/a Hilander Foods, Plaintiffs-Appellants, Apco Oil Corporation, an Oklahoma Corporation, Authorized To Do Business in the State of Illinois, American National Bank & Trust Co., an Illinois Corporation, Carroll Stenwall and Don Pearson, d/b/a Dog & Suds, Lowell A. Baxter and Bradley Owen Baxter, a Partnership, d/b/a Lawn & Garden Center, Earl Guth, Individually, Interpleaders, v. County of Winnebago, Illinois, and City of Rockford, a Municipal Corporation, Defendants-Appellees.
    Gen. No. 68-179.
    Second District.
    November 18, 1969.

      Cannariato, Nicolosi and Pigatti, of Rockford, for appellant.
    William E. Collins, Corporation Counsel, of Rockford, Philip G. Reinhard, State’s Attorney, of Rockford, and William H. Gates, Assistant State’s Attorney, for appellees.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiffs brought suit in the Circuit Court of Winnebago County that sought a temporary and permanent injunction to restrain the County of Winnebago and the City of Rockford from letting bids for the construction of a proposed “raised permanent median” on South Alpine Road in front of their property and for a determination by the Court “as to what would be the most feasible alternate proposal for the construction of a median strip. . . .” The plaintiff, J. C. & S. Corporation owned the property and leased it to the various Castrogiovannis named in the complaint, who operated a supermarket known as Hilander Foods. The other parties who inter-pleaded in the trial court were adjoining businesses and property owners but since they have not joined in this appeal we will refer to the plaintiffs hereafter only as “Hilander.”

The Hilander property is located on the east side of Alpine approximately 600 feet south of the intersection of Alpine and Charles Street in the City of Rockford. Louisiana Road runs into Alpine from the west directly across from Hilander but does not extend further east. Similarly, 16th Avenue meets Alpine from the west approximately 200 feet north of Hilander but does not continue to the east. Apple Orchard Lane joins Alpine from the east about 250 feet south of Hilander but does not extend west beyond it.

Charles Street runs at a southeasterly angle from its intersection with Alpine and abuts the back end of the Hilander parcel. At the present time Hilander does have entrances and exits on both Alpine and Charles Street.

Shortly before they filed suit, the plaintiffs were advised that the County was about to commence the reconstruction of Alpine Road into a four-lane highway from Charles Street to Harrison Avenue one-half mile south of Hilander. As part of the reconstruction, an insurmountable median strip approximately 8 inches in height would separate the north and southbound lanes of traffic on Alpine. The median strip would be cut through at 16th Avenue and Apple Orchard Lane to permit left hand turns but there would be no cut at Louisiana. As a result, it would be necessary for traffic from the west on Louisiana to turn south on Alpine and back to the north at Apple Orchard in order to have access to Hilander. Also, traffic from the north on Alpine would have to follow the same circuitous route via the Apple Orchard cut to enter Hilander. The plaintiffs complain that as a consequence of these changes they would suffer an “irreparable injury” in that potential customers would have no direct entrance to their parking lot. The plaintiffs offered to dedicate a portion of their land to permit a further expansion of Alpine in front of their property for a left-hand lane and to pay for the costs of a traffic control light at that location if it was necessary.

The evidence offered on behalf of the defendants showed that a traffic count indicated that approximately 7,200 cars a day traversed this section of Alpine Road in 1964 and that by 1984 it was estimated that 27,000 cars a day would use it. As a result of this heavy use, it was necessary to improve the highway to assure a free flow of traffic by the use of two lanes in each direction. Left-hand turns would be permitted at certain intervals but only where it was possible to provide additional or “storage” lanes for those vehicles making a turn. The storage lanes would have to be of sufficient length to prevent a backup into the other lanes that would impede the free flow of traffic.

The plans were prepared by the county highway department and submitted for approval to the State Department of Public Works and Buildings since the reconstruction was to be partially financed by State funds. The Department replied that the plans submitted were “the minimum that would be acceptable.” The county superintendent of highways admitted that the only plans prepared were those approved and that no alternate plan to provide an opening at Hilander was ever prepared.

An engineer with the Division of Highways of the Department testified that on the basis of its traffic count Alpine Road was classified as “TS-3” in the Design Manual of the Department and that under that classification a median barrier was required. All witnesses for the defense testified that their determinations were made in the interest of public safety on the highways and not as to the effects on nearby businesses.

Both parties cite the case of Ryan v. Rosenstone, 20 Ill2d 79, 169 NE2d 360, as the leading authority on this subject. In the Ryan case, the plaintiff owned a tract of land located on the northeast corner of the intersection of Illinois Highway No. 2 and Gardner Street, approximately 1,200 feet south of the Illinois-Wisconsin State line. A surmountable, “rumble” type median strip divided north and southbound traffic on Highway No. 2 from the State line about 600 feet south. From that point, the median was raised, being an insurmountable strip for another 620 feet to the intersection of Gardner. The insurmountable section of the median had been constructed to protect the traffic in the storage lane for traffic about to turn left into Gardner Street.

The plaintiff in the above case used her land as a bulk plant for the sale and distribution of oil and gasoline and she owned a fleet of seven trucks for that purpose. The plaintiff’s land abutted Highway No. 2 on that portion divided by the insurmountable barrier so that it was necessary for the trucks to first proceed north on Highway No. 2 across the State line before they could execute a turn to travel south into Illinois.

The evidence disclosed that the Division of Highways had determined that approximately 16,000 cars a day traversed Highway No. 2 at this point and that about 5,000 made a turn at the intersection of Gardner Street. On the basis of those counts, the Division concluded that an insurmountable barrier was necessary-in the interest of public safety.

The Supreme Court at page 82 stated as follows (with citations omitted):

“A property owner whose land abuts upon a public street or highway has, as an incident to his ownership, the right of access. . . . This right is subject, nevertheless, to the right of the State to regulate and control the public highways for the benefit of the public even though the abutter may be inconvenienced. . . . The regulation or restriction must, however, be reasonable. . . .
“The increasing number of accidents and vehicles on our highways cogently indicates the necessity of having a highway system which affords safety and permits the free flow of traffic. Such a system requires traffic control devices such as limited access highways, one-way streets, express thoroughfares, medial dividers, barrier curbs and the like. These and other traffic control devices may, on occasion, place a restriction on an abutting property owner’s free and convenient access to his property, but as long as the restriction is reasonable the courts will not interfere.
“No final or absolute rule can be laid down to determine reasonableness, but the circumstances of each situation must be weighed in the light of the purpose sought to be accomplished.”

The court then concluded that the restrictions imposed were, under the circumstances, reasonable.

We must thus determine if under the circumstances in this case the restrictions imposed would be a reasonable exercise of the police powers to regulate traffic in the interest of public safety. It is irrefuted that Alpine is a main, heavily-traveled thoroughfare. Although the administrative determination that an insurmountablé median barrier is required is not determinative, the decisions of the Department “as to the need for certain traffic control devices is entitled to respect by the courts because of its intimate knowledge of traffic problems.” Ryan v. Rosenstone, ibid., pages 82 and 83.

The superintendent testified that he determined that there should be provision for a left-hand turn from the north into Apple Orchard since there were 56 apartments on Apple Orchard with no means of access from the east. He further testified that the required storage lane for the left turn at Apple Orchard precluded an additional break at Hilander’s entrance. His assistant added that it was not geometrically feasible to provide left turn lanes at 16th Avenue, Hilander and Apple Orchard.

The plaintiffs point out that the factual situation in the Ryan case is significantly different from that involved here. In Ryan, the median strip was already constructed and only inconvenienced a small fleet of oil trucks whereas here a substantial number of potential customers would be denied access to the Hilander. They further argue that in Ryan the Division of Highways had an accurate estimate of the number of left turns made daily at the intersection where here admittedly no count was taken of vehicles that turn left at Apple Orchard.

Nonetheless, we agree with the trial court that under the circumstances the creation of an insurmountable median barrier in front of Hilander’s Alpine entrance would be a reasonable exercise of the County’s power to regulate traffic in the interests of public safety. Although no actual count was taken of the number of vehicles that turn left at Apple Orchard Lane, there was sufficient evidence to support the decision to provide a break at that location. Also, no evidence was offered to refute the expert opinion of the highway engineers that it would not be possible to provide required storage lanes for left turns at both the Hilander and Apple Orchard. The access to the Hilander from Charles Street remains unobstructed and while there will doubtless be some inconvenience to potential shoppers from the west the interests of public safety must prevail.

The allegations that the plaintiffs were a victim of a fraud by the County are entirely unsupported by the record. Anthony Castrogiovanni testified that prior to the construction of the supermarket two years earlier, he contacted the Department of Public Works to learn of any State plans for the improvement of Alpine Road. He was advised that Alpine would be widened but no mention was made of the median strip. He never contacted the County or City in this regard.

For the reasons given, the judgment of the trial court should be affirmed.

Judgment affirmed.

MORAN, P. J. and DAVIS, J., concur.


source: Caselaw Access Project

license: Public Domain

text:
    Edmund Bell, Administrator of the Estate of Anthony Bell, Deceased, Plaintiff-Appellant, v. Board of Education, City of Chicago, Defendant-Appellee.
    Gen. No. 53,268. (Abstract of Decision.)
    First District, Second Division.
    November 18, 1969.

      Merwin B. Auslander, of Chicago, for appellant; Gordon & Reicin, of Chicago, for appellee.
   Opinion by PRESIDING JUSTICE LYONS. Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Shaw, Defendant-Appellant.
    Gen. No. 50,784.
    First District, Fourth Division.
    November 19, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago, for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

This case is now before us for reconsideration on a mandate from the United States Supreme Court. Shaw v. Illinois, 394 US 214.

Defendant was convicted of the unlawful sale of narcotic drugs, and sentenced to life imprisonment, that sentence being mandatory under Illinois law because of a prior federal conviction for a similar offense.

The question at issue is whether or not defendant was unduly restricted in cross-examination of an informer who had testified to a purchase of heroin from defendant. The trial judge had taken the position that, because of defendant’s acquaintance with the informer (a woman), he was sufficiently well informed to identify her with her environment, and therefore the State’s objection was sustained to inquiry as to her current places of residence and employment. We affirmed the conviction, noting that defendant himself had testified that he had known the informer and that she had been in his home earlier the same day to pick up her radio which she had left with him as security for a loan. We also took judicial notice, in effect, of the possibility that, within the context of the crime charged, more precise information of the kind sought could result in physical harm or other reprisal to the witness.

Our opinion was filed December 5, 1967. People v. Shaw, 89 Ill App2d 285, 233 NE2d 73. A petition for leave to appeal was filed in the Illinois Supreme Court on January 30,1968, and denied on March 27,1968. Shortly thereafter, defendant filed in that court a petition for reconsideration on the basis of the decision in Smith v. Illinois, 390 US 129, which had been handed down on January 29, 1968, after our opinion had been filed and too late, as a practical matter, for inclusion in defendant’s petition for leave to appeal. This petition to reconsider was denied on May 15,1968.

Defendant then sought certiorari. The United States Supreme Court granted the writ, vacated the judgment of this court, and remanded the case to us “for further consideration in the light of Smith v. Illinois.” Shaw v. Illinois, 394 US 214. Since then, the parties have filed suggestions and countersuggestions, and oral argument has been heard, to assist in our reconsideration.

In Smith, which also involved a conviction for sale of narcotics, it was disclosed, on cross-examination of the informer, that he had not testified to his true name. Defense counsel then asked for his correct name and for his residence address, to which questions objections were sustained. The record did show that both the defendant and his attorney knew the informer, and that the attorney had once represented him. It was noted by the court, however, that this was not proof that they knew the informer’s correct name or where he was living at the time of the trial.

The Supreme Court reaffirmed the general proposition, stated in Alford v. United States, 282 US 687, 693-694, that “the extent of cross-examination with respect to an appropriate subject of inquiry is within the sound discretion of the trial court. It may exercise a reasonable judgment in determining when the subject is exhausted.” And, further, that a court has the obligation to protect a witness from an attempted invasion of his constitutional protection against self-incrimination, and “from questions which go beyond the bounds of proper cross-examination merely to harass, annoy or humiliate him.”

Smith then held, however, that the curtailment of cross-examination in that case had deprived the defendant of a constitutional right guaranteed to him under the Sixth and Fourteenth Amendments. The court recognized that the defendant had not been denied all cross-examination of the informer-witness, but indicated the relative importance it attached to the character of the unanswered questions when it said at page 131:

[Wjhen the credibility of a witness is in issue, the very starting point in “exposing falsehood and bringing out the truth” [footnote omitted] through cross-examination must necessarily be to ask the witness who he is and where he lives. The witness' name and address open countless avenues of in-court examination and out-of-court investigation. To forbid this most rudimentary inquiry at the threshold is effectively to emasculate the right of cross-examination itself.

We therefore interpret the Smith opinion as holding that the questions should have been answered because they did not involve self-incrimination, nor did they “harass, annoy or humiliate the witness.” Alford, supra. In our opinion, the Smith court did not intend to require reversal in all cases failing to meet these Alford tests, regardless of other factual circumstances, but only in those cases involving convictions essentially dependent upon the credibility of the witness being cross-examined. We conclude, however, that this is that kind of case, and that the opinion in Smith is controlling of our decision. Accord, United States v. Garafolo, 385 F2d 200; 390 US 144; 396 F2d 952. The judgment of the Circuit Court is therefore reversed and the cause is remanded for a new trial.

Reversed and remanded.

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

       The informer’s testimony received strong corroboration from the police officers, one of whom testified that he had watched, through the window of defendant’s living room, the transfer of money and tinfoil package between the informer and defendant. The defendant was promptly arrested with the prerecorded money in his hand, and the tinfoil package was found to contain heroin.

       What we consider an important additional ground for protection of the witness was suggested by Justice White, with the concurrence of Justice Marshall, in the former’s concurring opinion in the Smith case. He said (390 US, at 133-134):
      In Alford v. United States, 282 US 687, 694 (1931), the Court recognized that questions which tend merely to harass, annoy, or humiliate a witness may go beyond the bounds of proper cross-examination. I would place in the same category those inquiries which tend to endanger the personal safety of the witness.
      We would favor the adoption of this principle (see United States v. Varelli, 407 F2d 735, 750; and United States v. Palermo, 410 F2d 468, 472-473, where this was done), but it would not assist the State in the instant case because of the condition set forth by Justice White (390 US, at p 134):

      But in these situations, if the question asked is one that is normally permissible, the State or the witness should at the very least come forward with some showing of why the witness must be excused from answering the question. The trial judge can then ascertain the interest of the defendant in the answer and exercise an informed discretion in making his ruling. Here the State gave no reasons justifying the refusal to answer a quite usual and proper question.

        In this record there is no evidence of danger to the witness, and in the ordinary case it might well be impossible for the State to prove, since the threat of reprisal may only be inherent in the situation, rather than susceptible to proof.


author: MR. JUSTICE LEIGHTON

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Bonnie L. Allen, Defendant-Appellant.
    Gen. No. 51,767.
    First District, Fourth Division.
    November 19, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James N. Gramenos 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 Thomas Holum, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Defendant, a woman 48 years of age, was charged with aggravated battery. She waived trial by jury. The court found her guilty and admitted her to five years’ probation. In this appeal she contends that (1) the prosecution’s sole purpose in introducing a statement made by her when she was arrested was to arouse prejudice without throwing any light on the question of her guilt; "(2) the court restricted her access to and the use of an original police report, and restricted her cross-examination of the police officer who testified for the prosecution; and (3) the State’s proof of the charge of aggravated battery was fatally insufficient.

Three witnesses testified for the State: the complaining witness and her husband who described what occurred on the day of the offense, and a detective who described what occurred on the day he arrested defendant. Defendant did not testify nor did she offer any evidence.

On November 8, 1965, defendant lived with her stepfather at 814 West Oakdale in the City of Chicago. Fred L. Mulieh and his wife Helen, lived in apartment 2009, 2930 North Sheridan Road. At about 8:00 a. m. that day, Mr. and Mrs. Mulieh were in bed when someone sounded the front door knocker. Mrs. Mulieh went to see who was at the door. When she asked, a voice answered, “I am here for Rowena White.” Mrs. Mulieh knew a Rowena White. Hearing the name, she went to her bedroom and put on a housecoat. Mrs. Mulieh returned to the door, opened it, and there was the defendant, a woman Mrs. Mulieh had seen on two or three occasions prior to November 8. On the fingers of her right hand, as if they were rings, the defendant had the broken tops of white or greenish diet rite cola bottles. The pieces of glass from the bottle tops were approximately five or six inches long.

When Mrs. Mulieh opened the door, defendant, using her shoulder, tried to gain entry into the apartment. Mrs. Mulieh resisted. While the two were shoulder to shoulder at the door, Mrs. Mulieh took hold of defendant’s wrists because it appeared to her that defendant was coming at her face with the pieces of broken glass. Mrs. Mulich tried to keep defendant from entering the apartment. In the struggle, Mrs. Mulich and the defendant fell to the floor, with Mrs. Mulich doing all she could to avoid injury. As Mrs. Mulich rolled over defendant, she felt a slash on her right leg, below the knee. Mrs. Mulich cried out to her husband, asking him to call the police. Mr. Mulich came to the place where the two women were struggling, found his wife bleeding profusely from a cut on her right leg. He forced the defendant away, took his wife to a nearby hospital where she remained from Monday, November 8, to the following Wednesday. The gash on Mrs. Mulich’s leg required 28 stitches. The injury resulted in a permanent scar, three inches long.

On November 14,1965, Detective James Shannon and a fellow policeman went to defendant’s home. In the presence of her stepfather, Detective Shannon told defendant she was accused of striking Mrs. Mulich on November 8. According to Detective Shannon, the defendant said, “If I have to die it will not be by my own hand,” or “hands.”

It is always proper to prove facts and circumstances attendant on the arrest of a defendant, where those facts and circumstances logically tend in any degree to show perpetration of the crime. People v. Carson, 341 Ill 11, 173 NE 97. The facts and circumstances covered by this principle include any voluntary or spontaneous statement the accused makes at the time of his arrest. The statement or declaration, if short of a confession, may be an admission. People v. Griswold, 405 Ill 533, 92 NE2d 91. When, while being arrested, a person utters a response that is equivocal, it is proper to admit the utterance so that the trial judge, as trier of the facts, can decide what weight to give it as evidence. People v. Popilsky, 366 Ill 268, 8 NE2d 640. Under this rule defendant’s statement at the time of her arrest was properly admitted.

Defendant’s second contention complains of the trial court’s refusal to compel production of the original report made by the police concerning the aggravated battery on Mrs. Mulich, and of restriction on defendant’s cross-examination of Detective Shannon. Defendant argues that the original police report, made by a different officer, was subject to her examination because Detective Shannon said he. reviewed it before he testified. What was meant by review, and what relevance the original report had to the testimony concerning an arrest six days later, was not made clear. The prosecution objected to its production.

Defendant was entitled for impeachment purposes to inspect any statement of Detective Shannon, or any document he may have used to refresh his recollection so that she could determine whether Detective Shannon’s testimony at trial was consistent. People v. Wolff, 19 Ill2d 318, 167 NE2d 197, cert den 364 US 874, 5 L Ed2d 96, 81 S Ct 119; People v. Scott, 29 Ill2d 97, 193 NE2d 814. Defendant was also entitled to a transcript of the grand jury testimony of Detective Shannon, if there was one. People v. Johnson, 31 Ill2d 602, 203 NE2d 399. Both the supplementary police report covering defendant’s arrest (the only subject of Shannon’s testimony), and a transcript of the officer’s testimony before the Grand Jury, were turned over to defendant’s counsel upon request at the trial.

As foundation for production, the defendant had to establish that the statement or document was relevant and material, that it was in fact made by the witness, adopted by him, or used by him to refresh his recollection; or as to grand jury testimony, that he testified before that body. People v. Durso, 40 Ill2d 242, 239 NE2d 842; cert den 393 US 1111, 21 L Ed2d 807, 89 S Ct 923 (1969); People v. Golson, 37 Ill2d 419, 226 NE2d 610; People v. Watson, 36 Ill2d 228, 221 NE2d 645. No case cited by defendant nor any which our research has produced, holds that the original police report had to be produced simply because Detective Shannon said he reviewed it before he testified. The trial court correctly sustained the prosecution objections. People v. Martin, 35 Ill2d 289, 220 NE2d 170; People v. Dronso, 83 Ill App2d 59, 226 NE2d 460.

In support of the contention that she was restricted by the trial court, defendant argues that she was not allowed to cross-examine Detective Shannon concerning a claimed property transaction between her and Mr. Fred Mulich. Detective Shannon on direct was not asked any question on this subject. It is obvious, therefore, that the question asked Detective Shannon was outside the scope of direct; it dealt with a totally irrelevant matter. The trial court properly sustained the objections. People v. Gambony, 402 Ill 74, 83 NE2d 321, cert den 337 US 910, 93 L Ed 1722, 69 S Ct 1046 (1948).

Finally, defendant contends that the State’s evidence does not support her conviction of the offense of aggravated battery. She advances two arguments in support of this contention.

First, defendant argues that it was not proven beyond a reasonable doubt that she injured Mrs. Mulich. She claims that Mrs. Mulich while struggling with defendant outside the apartment slashed her own leg against pieces of broken glass on the floor.

Aggravated battery is a crime defined by section 12-4 of our criminal code. In committing it, the only mental state required is that the accused knowingly and intentionally cause the social harm defined in the statute, no premeditation or malice being necessary. It is a general rule that if one voluntarily commits an unlawful act, and while doing so inflicts a personal injury, he is criminally liable. 1 Wharton’s Criminal Law and Procedure, § 338, p 685, (Anderson ed (1957)); 2 Burdick, The Law of Crime, § 353, p 21 (1946). The principle on which this rule is founded is that everyone is held to contemplate and be responsible for the natural consequences of his acts.

While it is true the defendant cannot be convicted of the crime charged unless she possessed the mental state required by the statute, it is not necessary that she have intended the particular injury that resulted from her conduct. She intended to do an unlawful and wrongful act: the criminal invasion of the Mulich home, and she obviously came armed with a contrivance capable of inflicting serious injury. Defendant’s conduct was a wrong in itself; and in doing it she set in motion the force that inflicted injury on Mrs. Mulich. She is criminally liable for that injury. Commonwealth v. Hawkins, 157 Mass 551, 32 NE 862 (1893); Compare People v. Young, 11 NY2d 274, 183 NE2d 319 (1962).

Second, defendant argues that even if the State’s evidence proved that she injured Mrs. Mulich, the injuries did not cause “[G]reat bodily harm, or permanent disability or disfigurement. . . .” as defined in Ill Rev Stats, c 38, § 12-4 (a) (1965).

The term “bodily harm” contained in the statute, as was the wording of the earlier statutory provisions it succeeded, is not susceptible to precise legal definition. Whether a particular injury is as serious as that defined in a statute like section 12-4 (a) is a question of fact, not of law. People v. Cavanaugh, 18 Ill App2d 279, 152 NE2d 266. In our judgment the trial court was correct in finding that infliction of a cut on the leg of a woman that requires 28 stitches, and which leaves a permanent three-inch scar, is great bodily harm within the meaning of chapter 38, section 12-4(a). The State’s evidence proved beyond a reasonable doubt that defendant committed the offense of aggravated battery.

Judgment is affirmed.

Judgment affirmed.

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

       Ill Rev Stats, c 38, § 12-4 (a):
      “(a) A person who, in committing a battery, intentionally or knowingly causes bodily harm, or permanent disability or disfigurement commits aggravated battery and shall be imprisoned in a penal institution other than the penitentiary not to exceed one year or in the penitentiary from one to 10 years.”


text:
    In the Matter of the Estate of George W. Conrad, Deceased. Alma Hopkins, Plaintiff-Appellant, v. Louise Watson and Beverly Ford, Defendants-Appellees.
    Gen. No. 52,520.
    First District, Fourth Division.
    November 19, 1969.

      D. Adolphus Rivers, of Chicago, for appellant.
    Harold Aling, of Chicago, for appellees.
   MR. JUSTICE ENGLISH

Plaintiff’s sole contention on appeal is that the trial court erred by refusing to amend its original order which had declared plaintiff and defendants as the only heirs-at-law and next of kin of the decedent, George W. Conrad. She now claims that she is the sole heir-at-law of decedent, and that her testimony at the initial proceeding to determine proof of heirship was misstated and incorrect.

Decedent died on December 9, 1966, a resident of Cook County. On December 15, 1966, plaintiff filed a petition for letters of administration which stated that plaintiff and defendants were heirs of decedent. The hearing on proof of heirship was held on December 15, 1966, at which time plaintiff, who was the only witness, testified as follows: William Conrad was decedent’s father and Polly Harris his mother, although they never married. Decedent never married and did not have any children. Plaintiff was decedent’s sister by the same parents. Also born to Polly Harris, the mother, by another man, was Eddie Ford, who predeceased decedent. Ford left two children who are still living, Louise Watson and Beverly Ford, defendants herein.

At this proceeding there was some conflict in plaintiff’s testimony when the court inquired how many children were born to Polly [Harris]. Plaintiff answered two, and then, after finding that Polly [Harris] was never married, the court repeated the question as to the number of children, but plaintiff was not responsive. The court provided the answer by stating, “three chilren,” to which plaintiff did not object. Plaintiff then proceeded to name herself, the decedent, and Eddie Ford as the three children born to Polly Harris, and specifically remarked that Ford was born of a different father. Ford left two children living, the defendants in this action. On the basis of this testimony, the court declared Alma Hopkins, Louise Watson, and Beverly Ford to be the heirs of decedent.

Plaintiff subsequently filed a petition alleging that she and decedent were the only children born to Polly Harris and that she had been mistaken in her prior testimony when she included Eddie Ford as a child of Polly Harris. In the proceeding to amend the declaration of heirship, she stated that “I was not of myself when testifying somehow,” adding that she had been confused. She also stated that she had not read her signed petition for letters of administration, which had been consistent with her original testimony. In support of her new position, she submitted a census report from the year of Polly Harris’ death (1910) which listed plaintiff and decedent as the only children of Polly Harris. She also said that while she had known Eddie Ford when he lived with decedent in Louisiana, her reference to him as “brother” was a colloquial use of the term, customary in the south.

The administrator of decedent’s estate, Michael C. Moss, who had drafted the petition for letters of administration, testified that plaintiff had informed him that there were three children born to her mother, including Eddie Ford. His impression was that Eddie Ford was born of the same mother but a different father. He first learned of the discrepancy in plaintiff’s story, after the initial proof of heirship, when plaintiff and her California attorney explained that her use of the term “brother” in relation to Ford had been a customary one of affection and not of relation.

Louise Watson testified that Beverly Ford was her brother, Eddie Ford her father, and Polly Harris was her father’s mother. She did not know, nor did she ever see Polly Harris, and did not know whether her grandparents, George Ford and Polly Harris, had been married. In California she had visited plaintiff, who had introduced her to plaintiff’s friends as her niece. Likewise, when she had visited decedent, he would introduce her as his niece, “his brother’s daughter.”

On appeal, since no question has been raised and we cannot perceive any difficulty concerning the court’s power to redetermine heirship in this proceeding, our review is limited to a consideration of the evidence. Plaintiff correctly contends that the court’s prior declaration of heirship is only prima facie evidence of the heirship, and may be overcome in a subsequent proceeding such as the one in the instant case. Ill Rev Stats (1967), c 3, §58.

Most of the evidence in the two hearings was supplied by plaintiff, but it is in essential part contradictory. The only documentary evidence before the court is in the form of a census record which does not show defendants as heirs-at-law. While recognizing that as a general rule documentary evidence is highly persuasive in overcoming the effect of oral testimony, it is not conclusive. The weight accorded such evidence varies with the reliability of the document and its pertinence to the issue under consideration. Accordingly, we note that a census record for the purposes of this case, does not have the standing of a certificate of birth, nor does it purport to be conclusive on the issue of birth. We note also that the trial judge, in reaching his decision in favor of defendants, did not ignore this documentation, but, rather, acknowledged that it was entitled to heavy weight.

Additional testimony was offered by plaintiff’s original counsel who, in the first instance, had received the impression from plaintiff that Eddie Ford was her half-brother. Louise Watson also testified strongly as to her belief that she was decedent’s niece.

The trial judge made an oral summation of the evidence at the close of the hearing, and adequately demonstrated his awareness of the pertinent evidence. Despite plaintiff’s contrary evidence, he held against her, and, in so doing, made mention of “the demeanor of the witnesses,” which, of course, he, and not we, had the opportunity to observe.

A proposition which requires no citation of authority is that, upon review, this court will not substitute its judgment as to the credibility of witnesses for that of the trial court, unless the result is manifestly contrary to the weight of the evidence. We cannot say that the decision in this case is against the manifest weight of the evidence. It is, therefore, affirmed.

Affirmed.

DRUCKER, P. J. and STAMOS, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Williams and Henry Steele (Impleaded), Defendants-Appellants.
    Gen. Nos. 52,753, 52,754. (Consolidated.)
    First District, Fourth Division.
    November 19, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellants.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSES CHARGED

Armed robbery, Ill Rev Stats (1965), c 38, §18-2; and two charges of aggravated battery, Ill Rev Stats (1965), c 38, § 12-4 and § 12-4 (b) (2).

JUDGMENT

After a bench trial, John Williams and Henry Steele were found guilty of all charges, and were given concurrent sentences of 1 to 5 and 3 to 8 years, respectively, on each count. A codefendant, Jimmie Williams, was found not guilty.

POINTS RAISED ON APPEAL

(1) The identification of defendants was improperly made and based upon inadmissible testimony, resulting in prejudice to defendants.

(2) Alibi evidence, coupled with prejudicial identification testimony, raises a reasonable doubt of defendants’ guilt.

EVIDENCE

Ben Zemel, for the State:

On March 24, 1967, at approximately 4:00 p. m., he was about to close the doors of his produce business when three men entered the premises. The first said he wanted a case of eggs and then another hit him with a “billy” club. They were brandishing a doublebarrelled, sawed-off shotgun and a pistol, and declared that this was a holdup. Steele, the man who had struck him, then herded him and his sons into the cooler located on the first floor. Later, Steele ordered him to come out, led him to the office, and told him to open the safe. He opened it and gave Steele the money, and again was struck on the head with a pistol.

Steele said more money was hidden away, but witness denied it, whereupon Steele ordered one of witness’ sons out of the cooler. Witness told Steele to leave his son alone and he would give him his wallet. Thereupon, he gave Steele his wallet containing $100, and Steele hit him over the right eye with a pistol, rendering him unconscious. Before that, he had seen the other two men and identified them in the courtroom as Jimmie and John Williams. The office was well lighted and he had seen the faces of the robbers. All three men had guns. The robbery took about 15 minutes. A total of about $600 was taken.

He had seen Steele on occasions prior to the date of the robbery, as “he used to come around and hang around the place.” Steele had applied to him for a job but was refused employment. On the day before the robbery, Steele was “hanging around” on the street outside his place of business.

In the hospital, he identified a photograph of Steele from a group of about a dozen photographs shown to him by the police. On April 14, 1967, he saw Steele in a lineup of about half a dozen men at the police station. On May 2, 1967, he identified Jimmie and John Williams in a lineup. The police had told him, on both occasions, that they thought they might have the men who were the robbers. At the second lineup, he initially picked the wrong man, but he then took a closer look, realized his error, and picked the Williams brothers.

Henry Zemel, for the State:

He was working at his father’s place of . business on March 24, 1967, when three men (identified as the three defendants) came in and, after Steele asked for some eggs, they said it was a stickup. Jimmie Williams carried the shotgun and ordered everyone into the cooler. He went into the cooler and stayed about 10 minutes, when his brother kicked the door open. Upon running out, he saw his father with his eye torn, in a state of shock, and “blood all over the place.” His brother went next door and called the police, as the phone had been ripped out. At a police station lineup of four men, he saw the two Williamses and pointed them out.

Paul Zemel, for the State:

His testimony corroborated that of his brother, Henry. In addition, he testified that John Williams held a pistol to his stomach, and Steele hit his father over the head with a billy club. When Jimmie Williams had directed them to the cooler, he said, “Get over there or I’ll blow your head off.” At the hospital he gave a description of the robbers to the police. (The police reports including this description were given to defense counsel at the trial.) He had seen Steele before at his father’s place of business quite often, and, when shown his photograph a few days after the robbery, he said, “[t] hat’s him.” He saw the two Williamses at a lineup on May 2,1967.

Harold Marsicek, for the State:

He was a police detective on March 24, 1967, and, along with Detective O’Connor, talked to Ben Zemel in the hospital on that day in the course of investigating the robbery in question. On March 27, 1967, they again visited Zemel in the hospital and showed him Steele’s photograph, which he identified. They then obtained a warrant for Steele’s arrest and went to his home. Steele’s wife admitted them and they found Steele under the bed and arrested him. Defendant was taken to the station and was identified in a five-man lineup by Ben Zemel and his son.

On May 2, 1967, he arrested John and Jimmie Williams at the same address where he had arrested Steele. They were both identified by the three Zemels out of a lineup of four men.

Robert Lang, for the defense:

He was Jimmie Williams’ employer at Garfield Furniture Company on March 24, 1967. He testified that on that day, Jimmie Williams was driving a truck for him and had last left the office at 12:30. Frank Baldwin was his helper on the truck. He did not see Jimmie again until the next morning, but he had talked to him over the phone at 3:30 p. m., when Jimmie Williams called collect while at Hoffman Estates, where he had delivered some furniture. That was approximately 40 miles from the loop. A telephone bill showed this toll charge. They made another stop later that day on Foster Avenue, Chicago.

Frank Baldwin, for the defense:

He was Jimmie Williams’ helper on the day in question. At 3:30 p. m. they were together making a delivery at Hoffman Estates, and got back to 3500 Foster Avenue by 5:00 p. m. He saw Jimmie make a call to the office at 3:30 p. m.

Mary Lukes, for the defense:

She knew all three defendants. Steele had lived at her apartment, and she was there when he was arrested. John Williams used to live there. On March 24, 1967, she saw him at noon when he stopped at her apartment. He called her at 3:00 p. m. and asked to borrow money to buy some shoes. She said she would arrange it, so at 3:45 p. m. she and her daughter, Judy, met him and got the shoes. Judy went with John Williams to get something to eat while she shopped, and they rejoined her at 4:30 p. m. to 5:00 p. m.

Judy Marie Lukes, for the defense:

She was 14 years old at the time of the occurrence, and her testimony was substantially similar to that of her mother.

Alfred Haven, for the defense:

He is a security representative for Illinois Bell Telephone Company. It was stipulated that company records indicate that a collect call was made on March 24, 1967, at 3:32 p. m. by a man named Jimmie to the Garfield Furniture Company from a residence in Hoffman Estates.

Jimmie Williams, on his own behalf:

On the day in question, between 3:30 and 5:00 p. m., he was driving between Hoffman Estates and 3500 Foster Avenue, Chicago. He had placed a call to the office from Hoffman Estates about 3:30 p. m. He did not rob Mr. Zemel.

Henry Steele, Jr., on his own behalf:

On March 24, 1967, he was employed distributing baking flour for C. and J. Company, and was not at the place of the alleged robbery. He had seen Ben Zemel on quite a few occasions, but did not take part in the robbery, nor was he there the day before. He does not know Jimmie Williams, but did know John Williams, who is a friend of his relatives, the Lukeses, with whom the witness lived.

On direct examination, he testified that on the day in question he was not in John Williams’ company. On cross-examination, however, he said that he was with him at different times that day, since they worked together. He finished work around 2:30 or 3:00 p. m., and did not see Williams again.

John Williams, on his own behalf:

He had never seen the Zemels and was never in their place of business. He was arrested on May 2 and placed in a lineup with his brother and two other men. Ben Zemel picked one of the other men, and police called him over. Zemel came back after a brief conversation with the officers, and picked defendant and his brother.

On March 24, 1967, he was at work unloading flour along with defendant Steele, who was still there when the witness left at 12:30 p. m. to go to Mary Lukes’ house. He met her and her daughter at about 3:30 p. m., borrowed money from her, and bought a pair of shoes. He couldn’t get his own check cashed, since it had the name wrong and had to be corrected.

OPINION

Defendants contend that the methods utilized by the police in obtaining identifications of defendants were improper and prejudicial, and that the identifications resulting therefrom should not have been admitted into evidence.

The first alleged impropriety concerns the showing of a photograph of defendant Steele to Ben Zemel at the hospital prior to Steele’s apprehension. Steele contends that this technique is highly suggestive, as it firmly implants in the witness’ mind the defendant’s image, and serves as the basis for later identifications. The United States Supreme Court, while recognizing the possibility of detrimental use, supported the technique in Simmons v. United States, 390 US 377, where the court stated at page 384:

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

We find no impermissive suggestion in the instant case. Three days after the robbery, while in the hospital, the witness was shown approximately 12 photographs from which he picked one of defendant Steele, a man whom he had seen frequently before, and whom he had seen, in good light, for about 15 minutes during the robbery. From the photograph identification, a warrant was issued for Steele’s arrest. This sequence of events indicates that the police were attempting only to discharge their proper investigative duties and were not abusing the identification process in a manner prejudicial to defendants.

Defendants also assert that the two lineups in the instant case were prejudicial, including prior suggestive remarks made by police to the identifying witnesses that the robbers were in the lineup. Ben Zemel, the State’s main witness, testified that before he viewed the lineup at which he identified defendant Steele, a police officer told him “that one of the men who I thought was the robber would be in the lineup.” Zemel also testified in connection with the Williams lineup that “[t]he police didn’t tell me anthing, they just thought they may have the men who were the robbers.”

A proper lineup is designed to determine, if possible, the identity of the perpetrator of the crime under investigation. When a witness is asked to view a lineup, there is, necessarily, an implied suggestion that the police investigation has led them to believe that one of the persons exhibited in the lineup may have committed the crime. As stated in People v. McIntosh, 82 Ill App2d 90, 94, 227 NE2d 76:

Any time a victim of a crime is asked to come to a police station to look over persons arrested, there is an unavoidable intimation that the police have arrested someone who they believe might be the perpetrator of the crime.

The remarks complained of in the instant case were not unfairly suggestive or prejudicial to defendants; they merely verbalized the obvious.

Both defendants contend that the lineups were numerically inadequate. Ben Zemel testified that when he identified Steele, there were “about half a dozen” men in the lineup, whereas, a policeman testified there were five. Similarly, at the Williams lineup, Zemel said there were five or six, and the police said four. Henry Zemel also said there were four. These discrepancies are insignificant. They do not render the lineups defective or prejudicial, but merely go to the weight of the identification testimony. People v. Donald, 29 Ill2d 283, 194 NE2d 227. So, also, do the number of persons in the lineup and the manner in which it is conducted. See People v. Boney, 28 Ill2d 505, 192 NE2d 920. In this case, Ben Zemel had seen Steele on previous occasions, and his opportunities for observation during the course of the robbery were sufficient to fix defendants’ images firmly in mind. Under these circumstances, properly conducted lineups of four to six persons were adequate to prevent prejudice to defendants.

Defendants also complain that certain testimony by Officer Marsicek was hearsay and therefore inadmissible. He testified that he saw the witnesses identify defendants at the respective lineups and also saw Ben Zemel identify the photograph of Steele. There was no objection to this testimony at the trial, so any error which may have occurred in its admission is deemed to have been waived. People v. Dial, 95 Ill App2d 345, 238 NE2d 122; People v. Hester, 49 Ill App2d 308, 200 NE2d 3. Even if hearsay testimony had been improperly admitted, reversal is not warranted where the same matter has been proved by independent and properly admitted evidence. People v. Frenchwood, 28 Ill2d 139, 190 NE2d 767. The identification testimony of the robbery victims in this case was sufficient to render the officer’s testimony mere surplusage, and we find that no prejudice resulted therefrom. .

Having considered all the arguments raised on behalf of defendant Steele, we conclude that his conviction should be affirmed.

Defendant Williams also contends that his identification was tainted because Ben Zemel originally selected another man in the four-man lineup, after which he had a brief conversation with the police and then picked John and Jimmie Williams. Zemel’s testimony does indicate that initially he may have been unsure. The witness’ son testified, however, that the man his father first tapped on the shoulder was facing backward and “he picked him, and then he said ‘no, it’s that one/ ” We realize that there is conflicting testimony on this point, but we reiterate that, within the scope of the lineup evidence in this case, the facts testified to on the question of identification are merely factors to be weighed by the trier of fact. People v. Donald, supra; People v. Durant, 105 Ill App2d 216, 245 NE2d 41.

Defendant John Williams further contends that since both his identification and that of Jimmie Williams, who was acquitted, stemmed from the same set of circumstances, a reasonable doubt exists as to his guilt. The argument is a nonsequitur, however, because of the distinct and different alibi evidence which was offered by these two defendants. Jimmie Williams’ alibi evidence is strong and supported by several apparently disinterested witnesses who attested that he was many miles from the scene at the time of the crime. John Williams’ alibi evidence is much weaker and, in parts, conflicting. The trial judge obviously believed the alibi of one and not the other, and we will not substitute our judgment for his on a matter of credibility. The basic conflict, therefore, is between the respective strengths of the identification testimony as to John Williams and the alibi evidence offered on his behalf. We conclude that, if believed, as it was, the record contains more than enough evidence to establish the guilt of John Williams beyond a reasonable doubt.

The judgments of the Circuit Court are affirmed as to both defendants.

Affirmed.

DRUCKER, P. J. and LEIGHTON, J., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Anthony, Defendant-Appellant.
    Gen. No. 52,902.
    First District, Fourth Division.
    November 19, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, 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 John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE LEIGHTON

delivered the opinion of the court.

Defendant was charged with unlawful possession of a narcotic drug. He waived trial by jury, was found guilty and sentenced to serve not less than five nor more than six years. He appeals and presents for review the issues: (a) whether the trial court should have accepted his jury waiver; (b) whether the State proved him guilty beyond a reasonable doubt.

When defendant was brought to trial, his counsel addressed the court:

“Mr. Sheppard: May I have a jury waiver, Mr. Clerk?
“May it please the Court, there stands before Your Honor the defendant, Edward Anthony. For the record, my name is Albert M. Sheppard, and my appearance has been on file for this defendant. We wish to advise the Court that we are ready for trial.
“We wish to waive the right to trial by jury and to submit this matter for trial both on the law and the facts to Your Honor for judgment.
“May I put a question to my client, Your Honor ?
“Mr. Anthony, you have been advised as to your constitutional right to a trial by jury. You have told me that you want the case tried by His Honor, is that correct?
“The Defendant: Correct.
“Mr. Sheppard: All right, I hand you hereby a jury waiver and I ask you to sign the same.
“Ready for trial.
“Plea of not guilty.
“Mr. Moran: (Assistant State’s Attorney) You have admonished your client of his right to a jury trial, et cetera?
“Mr. Sheppard: I have so admonished him.
“The Court: Proceed.
“Mr. Sheppard: Thank you.”

From this colloquy, defendant contends that the trial court should not have accepted his jury waiver. Defendant argues that this case is controlled by People v. Bell, 104 Ill App2d 479, 244 NE2d 321 and People v. Turner, 80 Ill App2d 146, 225 NE2d 65.

In every case where it is claimed that a constitutional right has been waived, the inquiry is whether the record affirmatively shows the waiver was knowingly and intelligently made. See Johnson v. Zerbst, 304 US 458, 82 L Ed 1461, 58 S Ct 1019 (1938); Boykin v. Alabama, 395 US 238, 23 L Ed2d 274, 89 S Ct 1709 (1969). The record before us affirmatively shows that defendant, questioned by counsel of his own choice, understandingly and knowingly waived his right to trial by jury. Bell and Turner have no application to this case. People v. Spencer, 115 Ill App2d 398, 253 NE2d 672.

According to the State’s evidence, on March 29, 1967, at about 3:55 p. m., four policemen on a narcotics investigation went to a two-story, four-apartment building in the City of Chicago. One officer stationed himself in an areaway from which he could see the side and back windows of the second floor rear apartment. The other three officers went into the building. Two or three minutes later, the officer outside saw a man he later said was defendant come to the apartment window, lean out, and toss a tinfoil package to the ground. The officer recovered the package; it contained white powder. He went into the apartment and found defendant, Leroy and Azelene Carter who owned the apartment, Ruben Atterbury, and another man named Clyde Stinette. The officer placed defendant under arrest, went to a window in the back and found it open. He looked out and saw the spot where he originally stood in the areaway. The package was later inventoried, and examined. It contained heroin.

Defendant’s second issue questions whether the State’s evidence proved beyond a reasonable doubt that he was guilty of unlawful possession of a narcotic drug. Defendant argues that the testimony of the State’s two witnesses, one the officer who found the tinfoil package, does not support the trial court’s finding of guilty. Defendant points to discrepancies in the testimony of the officer who stood in the areaway. Defendant claims that the testimony of this officer as a whole was unreliable.

The police officer who found the tinfoil package in the areaway admitted that when he entered the apartment he arrested Ruben Atterbury, one of the men he found inside, and charged Atterbury with possession of marijuana. According to defendant’s argument, the officer gave the appearance of being confused when he testified. A fellow officer also testified. The two officers contradicted defendant’s testimony when he said that the officer who claimed he found the tinfoil package in the area-way came into the apartment, left with another policeman, and then returned with the package. Defendant testified and explained his presence in the Carter apartment by saying that he was there to collect some money owed him. He said he was a truck driver whose vehicle was parked across the street. In other words, the two policemen and the defendant testified. The trial judge heard them, observed them, saw their demeanor, and gave such weight to their testimony as he thought proper.

Possession is a voluntary act. See c 38, § 4-2, Ill Rev Stats (1965). Whether defendant committed the act described by the officer, whether he was the person who threw the tinfoil package to the ground, were questions of fact. If the State’s two witnesses were believed, there was sufficient evidence to support defendant’s conviction. The trial judge as trier of the facts was peculiarly suited to determine the truthfulness of each witness, and the weight to be given his testimony. A reviewing court will not substitute its views of the evidence for that of the trial judge, unless the proof is so unsatisfactory as to raise a reasonable doubt of guilt. People v. Boney, 28 Ill2d 505, 192 NE2d 920; People v. Scott, 38 Ill2d 302, 231 NE2d 441; People v. James, 109 Ill App2d 328, 248 NE2d 777. Our review of the record affords no basis for doubt of defendant’s guilt in this case. The judgment is affirmed.

Judgment affirmed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois ex rel. Edward J. Ryan, Plaintiff-Appellee, v. Civil Service Commission of the City of Chicago, and Orlando W. Wilson, Superintendent of Police of the City of Chicago, Defendants-Appellants.
    Gen. No. 52,733.
    First District, Third Division.
    November 20, 1969.

      Raymond F. Simon, Corporation Counsel of City of Chicago (Marvin E. Aspen and Joseph N. Lascaro, Assistant Corporation Counsel, of counsel), for appellants.
    Michael F. Ryan, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

This is an appeal from a writ of mandamus ordering the Chicago Civil Service Commission to certify, and the Superintendent of Police of the City of Chicago to appoint Edward Ryan to the position of patrolman in the Chicago Police Department.

On May 2,1966, Ryan was certified as patrolman after passing the requisite civil service requirements. He was not appointed, however, and in June 1966 he was called before the commission to show cause why his certification should not be disapproved. At the hearing a report was read from the police department rejecting him as being physically unfit and requesting that he be removed from the list of persons eligible for patrolmen. The report disclosed that Ryan was classified by the United States Selective Service System as being available only in time of national emergency because he did not meet the armed services’ physical standards; the report also stated that he had been examined by the Chief Surgeon of the Police Department and rejected because of bone chips in both knees. Ryan testified that he previously had a disability in his knees but that it had been corrected; he produced a letter from a doctor supporting his testimony. The commission informed him that before he could be considered for the patrolman's position he would have to be reclassified by the Selective Service as physically fit for military service.

Ryan’s draft classification was changed and he subsequently received a letter from the commission saying that his certification had been approved.

Soon after this, Ryan was informed by the police department that he would not be appointed and that another request would be made to the commission for disapproval of his certification. At the suggestion of the chief surgeon of the department he was examined by other physicians. He was again notified to appear before the commission to show cause why his certification should not be disapproved and at this second hearing, which was held in October 1966, the commission read a letter from the police department stating that Ryan had been examined by two physicians who reported that he had a defect in his knees. One of the physicians was of the opinion that the condition might ultimately require surgery. Ryan produced another letter by the same doctor who had previously supported his position which said that he was physically fit, and that there was no reasonable indication that surgery would be needed.

In November Ryan was notified that the commission had entered an order disapproving his certification. He thereupon filed a two-count complaint seeking, in the alternative, a reversal under the Administrative Review Act (Ill Rev Stats 1965, c 110, par 264 et seq.) or the issuance of a writ of mandamus. The defendants moved to strike the administrative review count on the ground that Ryan had failed to file his complaint within the time provided in the Act, and moved to strike the mandamus count on the ground that his only available remedy was by way of administrative review. The trial court denied the first motion but granted the second. Later, the court reversed itself, reinstated the mandamus count and ordered that a writ issue directing the Civil Service Commission and the Superintendent of Police to take all necessary steps to appoint Ryan to duty as a patrolman.

Ryan was foreclosed from prosecuting his administrative review action because he did not file his complaint within 35 days of the commission’s final decision as the Administrative Review Act provides; furthermore, his complaint in mandamus and the court’s writ were inappropriately directed against the commission. The commission operates under the Administrative Review Act (Ill Rev Stats 1965, c 24, § 10-1-45) and it is the exclusive means of reviewing the commission’s decisions. Section 2 of the Act (Ill Rev Stats 1965, c 110, par 265) states:

“In all such cases, any other statutory equitable or common law mode of review of decisions of administrative agencies heretofore available shall not be employed. . . .”

Ryan counters this statute with the Mandamus Act (111 Rev Stats 1965, c 87) section 9 of which provides:

“The proceedings for a writ of mandamus shall not be dismissed nor the writ denied because the petitioner may have another specific legal remedy, where such writ will afford a proper and sufficient remedy. . . .”

This provision is not applicable to administrative decisions. The Administrative Review Act was designed to provide a single uniform method by which the administrative decisions of State governmental agencies could be judicially reviewed. People ex rel. Chicago & N. W. Ry. Co. v. Hulman, 31 Ill2d 166, 201 NE2d 103 (1964); Moline Tool Co. v. Department of Revenue, 410 Ill 35, 101 NE2d 71 (1951). It expressly prohibits the use of pre-existing modes of review, such as mandamus, and has been consistently so interpreted. People ex rel. United Motor Coach Co. v. Carpentier, 17 Ill2d 303, 161 NE2d 97 (1959); People ex rel. Dever v. Wilson, 107 Ill App2d 223, 246 NE2d 863 (1969); People ex rel. Fike v. Slaughter, 31 Ill App2d 175, 175 NE2d 585 (1961).

Ryan further argues that the Civil Service Commission lacked authority to conduct a second examination as to his physical qualifications and that mandamus was, therefore, the correct method to question the commission’s jurisdiction. He cites the following provision of section 10-1-8, chapter 24, Ill Rev Stats (1965):

“In the event that any applicant for an office or place in the civil service (who has been found eligible for appointment . . .) has not been appointed to such office or place within 60 days from the date of his examination as to physical qualifications and health, the commission shall cause a second examination to be made of such applicant prior to his appointment and within 60 days of such appointment, which second examination shall be practical in character and shall relate to the cardiac, pulmonary, arterial, renal and sane condition of the applicant.”

The contentions in support of this argument are that his second examination was not held within the sixty-day period provided in the statute and was not restricted to his “cardiac, pulmonary, arterial, renal and sane condition.” Both contentions are without merit. The statute applies only to examinations conducted by the Civil Service Commission; Ryan’s examination was by the police department.

While the decision of the Civil Service Commission was covered by the Administrative Review Act, the refusal of the police superintendent to appoint Ryan, despite the fact that he was certified, was not a decisión covered by the Act. Mandamus is a proper remedy to compel a public official to perform a nondiscretionary, ministerial duty if the relator has a clear legal right to have that duty performed and it appears that the official has arbitrarily and without authority refused to perform it. Ryan argues that it was the mandatory duty of the superintendent to appoint him after his initial certification, and that the superintendent had no authority to order him to undergo a physical examination before making the appointment. In support of his position Ryan relies upon Ill Rev Stats 1965, c 24, § 10-1-14, which provides:

“The head of the department or office in which a position ... is to be filled shall notify the commission of that fact, and the commission shall certify to the appointing officer the name and address of the candidate standing highest upon the register for the class or grade to which the position belongs. . . . The appointing officer shall notify the commission of each position to be filled, separately, and shall fill such place by the appointment of the person certified to him by the commission therefor.”

This statute does not preclude the superintendent from delaying the appointment of a candidate pending the outcome of a rehearing as to the candidate’s qualifications. An appointing officer has some discretion in appointing persons certified to open positions. See the discussion in Thornton v. Ramsey, 24 Ill App2d 452, 165 NE2d 65 (1959). Further, certifying agencies have the power to correct mistakes in certification. People ex rel. Gaynor v. Board of Fire and Police Com’rs, 14 Ill App2d 329, 144 NE2d 763 (1957).

The police department, having the responsibility of protecting the lives and property of the citizens of Chicago, has an obvious interest in applicants for employment. The duties of a patrolman are varied, sometimes strenuous, and require physical well-being. The department learned that Ryan had been declared unfit for military service; he was examined by its chief surgeon, who diagnosed him as physically unfit for the position of patrolman. In view of these facts the superintendent was justified in requesting the commission to reconsider its decision. He informed the commission of the medical finding as well as of Ryan’s draft classification and requested that his certification be disapproved. When his draft classification was changed and the commission reapproved his certification, the police department had two outside doctors examine him; as a result of these examinations the superintendent informed the commission that he did not meet the department’s physical requirements and again requested disapproval of his certification. These actions did not prevent Ryan from asserting his rights or presenting his own evidence before the commission. They were precautionary and discretionary actions which were within the power of the department and its superintendent.

Nor is Ryan’s argument that the department was without authority to examine him prior to appointment tenable. He asserts that the only course open to the superintendent was to make the appointment and then take whatever action appeared advisable during the period he was on probation. A police superintendent has the power to order a physical examination of policemen in the classified service (People ex rel. Wayman v. Steward, 249 Ill 311, 94 NE 511 (1911)) and of those who are on probationary status. People ex rel. Ballinger v. O’Connor, 13 Ill App2d 317, 142 NE2d 144 (1957). It would be illogical to prohibit a superintendent from ordering an examination of an applicant who has an obvious physical impairment or where the police department has reliable information that he suffers from a disability which would make him incompetent to perform the tasks demanded by the position to which he has been certified. Between certification and appointment an applicant might suffer an amputation or become blind or deaf. Under such a circumstance it would be foolish to require that he be appointed before his fitness could be questioned and his certification reconsidered. Courts will presume that absurd consequences were not contemplated by the legislature in enacting a statute, and a construction will be adopted which it is reasonable to presume was intended. Zelkovich v. Industrial Commission, 8 Ill2d 146, 133 NE2d 300 (1956).

The examination ordered by the superintendent was logical, proper and within his authority. The order of the Circuit Court is reversed.

Reversed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    Larry A. Bowen, Plaintiff-Appellee, v. Jacqueline A. Bowen, Defendant-Appellant.
    Gen. No. 68-100. (Abstract of Decision.)
    Third District.
    November 21, 1969.

      Cirricione & Penn, of Joliet, for appellant; Silberstein and Napoli, of Peoria, for appellee.
   Opinion by JUSTICE RYAN. Not to be published in full.


author: MORAN, J.

text:
    Henry C. Scheppel, d/b/a Greenville Furniture, Plaintiff-Appellee, v. Arkansas-Best Freight System, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 69-6.
    Fifth District.
    November 21, 1969.

      James E. Buchmiller, of Greenville, for appellant.
    Meyer and Meyer, of Greenville, for appellee.
   MORAN, J.

Defendant, Arkansas-Best Freight System, a trucking company, appeals from a judgment entered in favor of the plaintiff, Henry C. Scheppel, a furniture dealer, for $213 plus costs in an action for damages for breach of contract brought in Bond County on a Small Claims Complaint.

Plaintiff received an order on March 9, 1968, from a young couple for a bedroom suite which had to be ordered from a catalog of Flanders Manufacturing Company of Fort Smith, Arkansas, and for a mattress and box spring which plaintiff had on hand. Apparently the sale was made on the condition that the furniture would be delivered by March 23,1968.

Plaintiff telephoned the order to Flanders on March 11 and instructed them to send the order by any trucking line to St. Louis, but only by Cline Motor Freight from St. Louis to Greenville. Flanders then transferred the furniture to defendant for shipment. Both the invoice and bill of lading specified the routing as “ABF c/o Cline at St. Louis.” Defendant transferred the furniture, instead, to Bellum Freight Lines at St. Louis for delivery to plaintiff, and for some reason not shown in the record, the furniture was not delivered until March 27 or 28 by Cline Motor Freight. On other occasions delivery had been made from Flanders within three or four days.

Due to the delay in delivery, plaintiff’s customers had cancelled their entire order on March 22. Consequently, plaintiff refused to accept the furniture when it was finally delivered by Cline. The record does not show whether plaintiff has had to pay for the rejected order or freight costs, but it does show that plaintiff suffered a loss of profit of $213.

Plaintiff contends that he is the third-party beneficiary of the shipping contract between defendant and Flanders, and as such is entitled to recover his lost profits which resulted when defendant breached that contract by transferring the furniture to Bellum instead of Cline as requested.

Assuming without deciding that plaintiff could maintain this action as third-party beneficiary, we hold that, under the circumstances of this case, defendant is not liable to plaintiff for lost profits occasioned by an unreasonable delay in delivery.

A carrier may be liable for special damages, such as loss of profits, resulting from unreasonable delay if it had or could be charged with notice of the circumstances or special conditions rendering such damages the natural and probable result of the delay in transportation and delivery. If the special circumstances of the plaintiff’s contract with his customer were communicated to the defendant, giving notice that prompt shipment was a necessity, then the loss of profits resulting from an unreasonable delay would be the natural and probable result which would reasonably be contemplated by the parties and would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated, and defendant might be held liable for such losses. Hadley v. Baxendale, 9 Exch 341, 5 Eng Rul Cas 502, 156 Eng Rep 145; Illinois Cent. R. v. Cobb, Christy & Co., 64 Ill 128; 13 Am Jur2d, Carriers, § 379.

Plaintiff cites Meyer v. Buckman, 7 Ill App2d 385, 129 NE2d 603, and Kolberg v. Cities Service Oil Co., 343 Ill App 355, 99 NE2d 152, for the rule that where a loss of profits is the natural probable consequence of the act or omission complained of, such profits may be recovered if established with reasonable certainty. Clearly, the amount of lost profit is reasonably certain, but the loss is not the natural probable consequence of defendant’s failure to follow the requested route in the absence of notice to defendant that the goods were under a contract of sale and that the sale would be can-celled if the goods were not delivered promptly. This notice requirement provides the carrier with an opportunity to take special precautions against delay or to indicate that it cannot transport the goods promptly.

However, in this case, when the plaintiff was asked whether he ever advised defendant that he had this sale, he testified, “No, I had no occasion to.” There is no other evidence in the record to indicate that defendant was put on notice by Flanders or any other person of the particular circumstances making prompt shipment a necessity, nor did the nature of the shipment put defendant on constructive notice of any such circumstances. Consequently, defendant cannot be held liable for the special damages resulting from its failure to follow the requested routing.

The judgment of the Circuit Court of Bond County is reversed.

Judgment reversed.

GOLDENHERSH and EBERSPACHER, JJ., concur.


text:
    People of the State of Illinois, Plaintiff-Appellee, v. Willie T. Bender, Defendant-Appellant.
    Gen. No. 51,217. (Abstract of Decision.)
    First District, First Division.
    November 24, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer, James N. Gramenos, 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 R. Heelan, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by JUSTICE BURMAN. Not to be published in full.


author: MR. JUSTICE MURPHY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Caldwell, Defendant-Appellant.
    Gen. No. 52,582.
    First District, First Division.
    November 24, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James S. Veldman, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a jury trial defendant was found guilty of the separate offenses of (1) armed robbery, (2) attempt to commit deviate sexual assault, and (3) attempt to commit rape. Defendant was sentenced to the penitentiary for a term of 15 to 30 years on the armed robbery offense and for terms of 10 to 14 years on each of the other two offenses. The three sentences were ordered to be served concurrently.

On appeal defendant contends that he was not proved guilty beyond a reasonable doubt because (a) the method and procedure of the identification of defendant was unlawful and highly prejudicial and deprived defendant of his constitutional rights, and (b) during the trial evidence by police officers as to the identification made by the complaining witness should not have been admitted into evidence.

On November 3, 1966, the complaining witness was in the employ of the Palmer House as a cocktail waitress. On that evening she went to work at about eight o’clock, and while in the women’s locker room on the 5th floor, she took off all of her clothing to make a change into her uniform. When she turned around she found a man standing there. He was taller than her, very skinny, and had a little black hat, black leather jacket and dark pants. She thought he was one of the boys who worked in the hotel and told him to get out, but he didn’t move. He put a knife to her throat and said, “Look lady, I could kill you if I wanted to.” He then unsuccessfully tried to rape her. He then blindfolded and gagged her. He demanded that she commit an act of sexual deviation on him, which she refused. He then committed an act of sexual deviation on her. She screamed, and the blindfold and gag came off. He then took $48 out of her purse. She asked him not to take the money because it was part of her rent money, and he said he needed it more than she did because he was an addict. Screaming, naked and hysterical, she ran out of the door and down the corridor. A woman opened a door and told her to come in. She was in the offices of Dr. Duerme. The doctor gave her a sheet to wrap around herself. He examined her and found the outer part of her sexual organs smeared with blood. He cleaned her wounds and gave her a tranquilizer to quiet her. Two policemen took her to Wesley Hospital for further examination. The defendant was arrested at approximately 5:00 a. m. on November 5,1966.

The complaining witness further testified that while she was in the doctor’s office she was shown three photographs by Mr. Pierson, who was the Director of Safety and Security for the Palmer House. She picked out one (People’s Exhibit 3) and said, “Yes sir, it is, that is exactly what he looked like almost.” On November 4 at 6:00 a. m. she viewed a lineup of four men but identified no one. On November 4 at about 7:00 p. m. the police came to her apartment with a book of about 100 photographs, out of which she selected one (People’s Exhibit 4). On November 5, 1966, at about 6:00 a. m. she attended a second lineup consisting of four men, and she identified the defendant in that lineup. At the trial she made an in-court identification and also testified that during the attack on her the lighting conditions in the locker room were good, and the defendant was with her for about fifteen or twenty minutes.

Other witnesses for the State included Robert L. Pier-son, who was the Director of Safety and Security at the Palmer House on November 3, 1966. At about 8:15 on that evening he went to the office of Dr. Duerme and showed three photographs to the complaining witness. She picked out one as being that of the defendant (People’s Exhibit 3). On November 4, 1966, at about 7:00 p. m. he accompanied Police Officers Albertson and Strohlman and a Mr. Williams to the apartment of the complaining witness. She was shown a book of about 100 photographs, and she picked out one as being that of the defendant.

Robert Strohlman, a police officer, who was assigned to investigate “an attempted rape” at the Palmer House on November 3, 1966, testified that he and his partner arrived at the Palmer House as the victim was being taken to the hospital. Pierson showed him the alleged photograph of defendant (Exhibit 3). On November 4, he and his partner, Officer Albertson, interviewed the victim at her apartment and showed her about 100 photographs. She picked out one as being a picture of the man who attacked her on November 3 (People’s Exhibit 4). He also testified as to the two lineups and the identification of defendant by the victim at the second lineup on November 5,1966.

Officer Merle Albertson substantially corroborated the testimony of his partner, Officer Strohlman. Regarding Exhibit 4, he testified that when the complaining witness searched through the book of 100 photographs, she went through the book and came to one picture, then she hesitated. She then put her finger on that page and continued through the book, and when she finished she went back to the one picture and looked at it awhile and said, “That is the man but he looks a little different than the other picture that I saw.”

Dr. Francisco Duerme testified that he was a physician employed by the Palmer House. While on duty and about 8:00 p. m. on November 3, 1966, he saw the complaining witness in the office, nude and trembling. Her sexual organs were smeared with blood. She was frantic and had hysterical reaction to the incident. He gave her a tranquilizer and it took five minutes before he could communicate with her. After she calmed down he was able to converse with her, and she gave him answers to his questions just like any other patient. He never saw her again.

Ozel Anderson testified that on the evening of November 3, 1966, he was employed by the Palmer House as a lobby porter. He was going toward an elevator, and “a fellow came off the elevator in a hurry, in a daze and he jumped back in the elevator.” The witness pointed out defendant as the man he saw. Also, he had examined photographs several days after the occurrence and identified Exhibit 4 as a picture of the man who stepped off and back on the elevator on November 3.

The exhibits offered in evidence by the State included the two photographs selected by the victim (Exhibits 3 and 4). Counsel for the defendant objected to their admission into evidence because “Exhibit 3 carries on the back of it in handwriting ‘Junkie and shoplifter, Arcade Shops,’ and I would not want the jury to observe this particular exhibit. To start with, it would be highly inflammatory. ... I have also even greater objection to Exhibit 4 which shows him in a police photo. It is highly inflammatory. And the fact that he is identified by the witness from the stand is all that is sufficient and the effect of putting forth this evidence to the jury, compared to its probative value here is highly inflammatory and prejudicial and I would say would sufficiently influence the mind of this jury to cause my client here not to be able to receive a fair and impartial adjudication of this matter.” After some colloquy between court and counsel, the photographs were received in evidence and the court directed that the written data be “stricken off.” This was done, and the two photographs were shown to the jury.

Defendant did not testify. The evidence offered on his behalf consisted of the testimony of his mother, Isabelle Lewis, with whom he lived. She testified that on the morning of November 3, defendant had a swollen foot and was limping, and she bathed it for him. Defendant was not working at the time, and he walked with great difficulty. After she left for work, she did not again see the defendant until after he was arrested.

In rebuttal, Officer Strohlman testified that during his investigation Mrs. Lewis stated to him that she had not seen defendant in several months. Robert Pierson testified he saw defendant on October 21, 1966, and he had a slight limp. He was present on November 5, when defendant was arrested, and to his knowledge defendant was not limping then. After he was placed in custody, he began to limp. Officer Albertson was present when defendant was arrested, and he did not notice any limp. The record officer of the County Jail testified that a medical record showed that defendant’s foot was treated for a “fungi infection.”

Initially, we consider defendant’s contention that it was error to exhibit photographs of the defendant to the complaining witness before a corporeal identification was made. Defendant states, “Here she was twice shown a photograph of the defendant before the second lineup in which he appeared and the only one in which she identified him.”

Defendant’s authorities include numerous and lengthy excerpts from Wall’s Bye-Witness Identification in Criminal Cases, from which we note the following excerpts :

At page 68:

“[W]here a photograph has been identified as that of the guilty party, any subsequent corporeal identification of that person may be based not upon the witness’s recollection of the features of the guilty party, but upon his recollection of the photograph. Thus, although a witness who is asked to to attempt a corporeal identification of a person whose photograph he has previously identified may say, ‘That’s the man that did it,’ what he may actually mean is, ‘That’s the man whose photograph I identified.’ ”

And on page 71, it is said:

“No doubt there are circumstances in which the police of necessity make use of photographs but to make use of photographs beforehand to see whether important witnesses can identify an accused person whom they are afterwards going to see is to pursue a course which is not a proper one.”

And on page 74:

“The first rule, one dictated by fairness and precaution, is that a series of photographs must be shown, not merely that of the suspect. To show a witness a single photograph ‘is tendentious, for the psychological factors of such an exhibition . . . favor identification rather than repudiation of identity.’ It is as grossly suggestive a procedure as is the show-up. It is a practice which is unfair not only to the suspect whose photograph is shown, but also to the community served by the police who show it. It is unfair to the suspect, for however innocent he may be, it may deal him a blow from which he may not be able to recover. If the witness makes an identification, he will usually reaffirm it at the trial, and the jury may prefer to believe him rather than any denials on the part of the defense.”

Also cited is People v. Gooden, 403 Ill 455, 86 NE2d 198 (1949), where the court commented on the problem of corporeal identification subsequent to a positive identification and stated (p 460):

“It is quite possible that the face in the picture examined by Benton at the bureau of identification would remain indelibly upon his mind, and having fixed an association of defendant’s picture in his mind in connection with the robbery, it is quite possible that upon viewing defendant in the lineup Benton might have been influenced by what he had observed in the picture.”

As to the use of photographs in this case, the State asserts that defendant’s quotations from Wall were rejected as unrealistic in People v. Bailey, 90 Ill App2d 121, 123, 234 NE2d 332 (1968). The State argues that “the thrust of the objection to the photographic identification seems to be that the witness at the later lineup was identifying not the man who assaulted her but the face she saw in the picture she picked out. The fact that the picture she chose was the face of the man who had attacked her and that of the man she later picked out of the lineup is ignored in this argument which assumes that the photographic identification was incorrect. There is nothing to be found in the record however, to indicate either that any influence was exerted to cause the witness to choose a photograph of the defendant or that this choice was incorrect and not an identification of [the] attacker.”

On the issue of the use of photographs here, we agree with the foregoing remarks of the State. In Wall, the author says (p 70):

“The most obvious justification for the use of photographs is the absence of any knowledge as to the identity of the criminal. Without the aid of the rogue’s gallery, the crime would most likely go unsolved; therefore, the proper use of photographs in such situations has always been approved, even by English courts, which are quite strict where identification procedures are concerned. Where the suspect is known and in custody, however, the showing of photographs to the witnesses is usually improper, even when the procedure used in showing them is a fair one. This point has been made in a number of English and Commonwealth cases.”

In Simmons v. United States, 390 US 377 (1968), the court said (p 384):

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

We think the foregoing guidelines are in point here. It was the use of the photographs which led to the identification and arrest of defendant. We find no error here.

As to the lineups, defendant contends that “a lineup with only four men in it is not a proper procedure. There should be more than four.” Defendant again cites Wall, where it is said (p 52):

“The composition of the lineup—how many persons are in it, what they look like, what they wear, who they are—is a matter of great importance, for unless it is completely free from suggestive influences, its value will be greatly diminished, if not destroyed.
“The first point to be considered here concerns the number of persons who appear in the lineup with the suspect. As already mentioned, the smaller the number of persons in the line-up, the more it resembles a showup. In England, it is said that line-ups contain about twelve persons, a number which Wigmore thought desirable. In Paris, the number is usually five or six which seems sufficient, if not ideal, and certainly far more feasible.”

On this issue the State notes that on the morning following the attack and robbery, the victim was taken to the 2nd District police station, where she viewed a lineup of four men, in which the defendant was not present. The victim did not identify any of these men as her attacker and said that he was not there. Then, on that same evening, a book of police photographs was shown to the victim, which contained a photograph of the defendant among approximately 100 others, from which she picked a photograph of defendant different from that which she had identified in the doctor’s office in the hotel. The State further argues that the complaining witness knew what her attacker looked like, and she was not misled by other persons who were similar in appearance and was able to pick out his photograph from a number of pictures, and “that she knew this man when she saw him is further proven by the fact that at a second lineup [she] identified the defendant.”

The record indicates that the second lineup consisted of four men, the defendant and three other men approximately the same description as that of defendant in size, height and weight.

We are aware that evidence of “line-up identification” and “pretrial confrontations” is currently being subjected to critical scrutiny to determine if substantial prejudice to defendant’s rights has occurred. We note there is nothing in this record which shows that anyone made any remark or suggestion which might have indicated to the victim that the police thought defendant was her assailant. Also, there was nothing different about defendant from the men who stood with him in the second lineup which would have singled him out to an observer or somehow put him in the spotlight. We find nothing prejudicial to the defendant in the procedure followed in the second lineup.

Next considered is defendant’s contention that the ordeal to which the complaining witness was subjected deprived her of the ability to clearly remember what her assailant looked like. She was frantic, trembling and had a hysterical reaction to the incident, and after the doctor gave her a tranquilizer, it took about five minutes before he could even communicate with her on any basis. Defendant asserts that her identification of the defendant by viewing his alleged photographs was vague, uncertain and wholly unsatisfactory. This was evidenced, he contends, by her hesitancy in choosing the photograph out of the book of 100 photos, and her statement when she viewed the original photograph: “That is exactly what he looked like almost.”

We find no merit in this contention. The complaining witness was face to face with defendant for about twenty minutes in a well-lighted area, and she was able to give a description of him shortly after the attack. The lobby porter from the Palmer House testified that he saw defendant get off and hurriedly jump back on one of the elevators in the lobby shortly after the attack.

Finally considered is defendant’s contention that part of the testimony of the officers who investigated this case, and who arrested this defendant, was inadmissible and prejudicial to the defendant and deprived him of his constitutional right to a fair trial. The police testimony noted by defendant as prejudicial consisted of statements made to them, or in their presence, by the complaining witness, that defendant was the man who attacked her when she identified a photograph of him and at the second lineup.

The State contends that at the trial defendant made no objection to the evidence in question and therefore any error was waived (People v. Dial, 95 Ill App2d 345, 238 NE2d 122 (1968)); moreover, that defense counsel cross-examined the witnesses at length on the same material, the identification of the defendant by the complaining witness in their presence.

We have examined the testimony in question, and some of it is hearsay and improper. Although plain errors or defects affecting substantial rights may be noticed, notwithstanding they were not brought to the attention of the trial court (95 Ill App2d 345, 362, 238 NE2d 122 (1968)), we find no substantial prejudice here.

After a careful examination of this record, we find the identification of the defendant was clear and convincing, and the evidence was sufficient to support defendant’s conviction of the three offenses beyond all reasonable doubt. For the reasons given, the judgment of the trial court is affirmed.

Affirmed.

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