author: ALLOY, J.

text:
    Ottawa Township High School District No. 140 of La Salle County, Illinois, et al., Plaintiffs-Appellants, v. County Board of School Trustees of LaSalle County, Illinois, et al., Defendants-Appellees.
    Gen. No. 68-65.
    Third District.
    March 5, 1969.

      Berry & O’Conor, of Ottawa, for appellants.
    John A. McNamara, of Marseilles, for appellees.
   ALLOY, J.

This is an appeal from an order of the Circuit Court of LaSalle County affirming an order granting detachment of certain territory from Ottawa Township High School District No. 140 and Seneca School District No. 170. The County Board of School Trustees of LaSalle County ordered the detachment of such territory and its annexation to Marseilles School District No. 155. Administrative review of such order of the school trustees was sought in the Circuit Court of LaSalle County which affirmed the order of the school trustees.

On appeal in this Court, Ottawa Township High School District No. 140 asserts that there is no substantial evidence in the record upon which the County Board of School Trustees could have based their decision and, upon which the Circuit Court of LaSalle County could have affirmed it. The appellant High School District also contends that there has been no compliance with the provisions of the School Code with respect to the evidence to be considered in detachment proceedings, and that the decision ordering detachment as well as the order of the Circuit Court affirming such detachment are contrary to the manifest weight of the evidence. Particular emphasis is placed by appellant on the section of the School Code (c 122, 1967 Ill Rev Stats, par 7-6) which provides that the County Board of School Trustees shall hear evidence as to the school needs and conditions of the territory in the area within and adjacent thereto and as to the ability of the districts affected to meet the standards of recognition as prescribed by the Superintendent of Public Instruction, and shall take into consideration the division of funds and assets which will result from the change of boundaries and which determine whether it is to the best interest of the schools of the area and the educational welfare of the pupils that such changes in boundary be granted.

The record in the cause before us indicates that after the ex-officio secretary of the board had submitted a map showing the districts and territory involved and the district contiguous and adjacent thereto, and, likewise, after the County Board of School Trustees had seen a report of the financial and educational conditions involved and the probable effect of the proposed changes and as to the school needs and conditions of the particular territory involved and as to the ability of the affected districts to meet the standards of recognition prescribed by the Superintendent of Public Instruction, such report was made a part of the record (Long v. County Board of School Trustees of Morgan County, 15 Ill App2d 162, 145 NE2d 741). Thereafter, evidence was presented through witnesses heard in the cause on behalf of petitioners. No evidence was presented on part of defendant.

The first witness to testify, Donald M. Chase, testified that his son would be a freshman in high school that year and that he resided approximately 1% miles from Marseilles. He stated that the year before the boy had traveled approximately 9 or 10 miles by bus to Seneca grade school and that if he were required to go to Ottawa High School the boy would be required to walk about a mile and a tenth to meet a bus and then go by bus for a distance of approximately 9 miles. The witness testified that it would be much more convenient for the boy to attend Marseilles High School and, also, that he was satisfied that the educational facilities would at least be equal to that furnished at Ottawa. He emphasized that the Marseilles facilities would be beneficial to him and the boy because the boy would be closer to home, would have better supervision, also that he would be able to participate more in school activities and even sports, if he so desired. He also stated that his son knew all of the children involved and the teachers and identified with Marseilles and had relatives in the town. He was not concerned that Marseilles did not furnish transportation since the child could ride to school with his mother who taught in the Marseilles system. The witness testified that he was familiar with the curriculum offered by the two schools and was satisfied that Marseilles had an excellent school. He also stated his wife, as school teacher in the Marseilles’ school system, was completely advised as to the two systems and she, too, preferred the Marseilles system.

Ernest Lowery, one of the petitioners, had a child who was attending school in Marseilles at the time he testified, and also had a 3% year old who would soon be going to kindergarten and he desired that the child attend Marseilles. The witness testified he had relatives in Marseilles and was satisfied that the educational facilities offered by Marseilles were either equal to or better than that offered at Seneca or Ottawa. He also testified that in addition to desiring that his child attend Marseilles, he worked in Marseilles, did all of his business in that town, and had occasion to come to town two or three times a day every single day.

Another petitioner, Robert Simpson, testified that he had a child who would begin kindergarten in the fall and that he had previously been a resident of Marseilles for many years and was familiar with all the schools—Marseilles, Seneca and Ottawa. He stated that he desired that his child attend Marseilles and felt that the school system could benefit him educationally as much or more than the Seneca grade or Ottawa High School. He pointed out that if he were required to travel to Seneca he would travel approximately 9 or 10 miles one way by bus and then would be required to go and pick the child up since kindergarten would only be for half a day and he had no one to care for the child in Seneca, although he did have relatives in Marseilles.

Another witness, Earle Corley, testified that as president of the Marseilles District No. 155, his district was happy to have the people annex to Marseilles; that he was confident that the quality of education in the Marseilles District was equal to the quality of education anywhere in the State. He also stated that the area of the petitioners is readily identified with Marseilles and that all of the petitioners readily identify with Marseilles and either work there or have lived there and, for the most part, have gone to school there. He likewise testified that it was not only a convenience to the parents and children but that educational benefits from the change would be a prime factor. Mr. Corley also testified that it would be difficult for Marseilles to function without State aid but that, with State aid, the annexation would not involve a financial burden in any manner.

On review of a decision by the school trustees involving a change of boundaries, a court of review is under a duty to consider the record to see whether the determination is supported by the evidence, but the court cannot substitute its judgment for that of the Board. The court of review would consider whether the board conformed to requirements of the School Code and whether the decision was against the manifest weight of the evidence. We recognize that there must be a measure of stability in the boundaries of school districts and that they cannot be changed by reasons of mere personal preference of the residents in the territory, without regard to other material considerations (Board of Education v. County Board of School Trustees, 19 Ill App2d 196, 153 NE2d 378, 381). The benefits derived by the area annexing should clearly outweigh the detriment to the losing district. There must also be no jeopardy to the educational resources of the losing district or to the annexing district. The basic consideration is the best interest of the pupils in the entire area as well as the school districts involved, and it is the welfare of the districts and the pupils which will control.

While there is relatively little evidence in the record on the educational benefits which would accrue to the children transferring into the Marseilles District, there is also no clear evidence that the transfer would be adverse to the interest of such children in the annexing district. The circumstance that the Marseilles school is nearer to the annexing district and evidence showing that the children would be more likely to participate (as well as having parental participation) in the activities of the school, is a substantial factor for consideration. The record does not indicate that detachment would affect the ability of either the Seneca or Ottawa schools to meet standards of recognition or that the tax revenue of either district would be materially affected. We are left, therefore, with the record which discloses that the identity of the Marseilles territory with the interest of the petitioners and the annexing district is such that the benefit to be derived by the children and their parents is established of record. On the basis of such showing in the record, it cannot be stated that annexation as affirmed by the Circuit Court would not be clearly for the welfare of the students in the affected area. We are somewhat in the situation described in School Directors of District No. 82 v. Wolever, 26 Ill2d 264, 186 NE2d 281, where the court said, at page 267:

“Upon administrative review, the role of the judiciary is merely to determine if this determination is against the manifest weight of the evidence (Bucholz v. Cummins, 6 Ill2d 382; Logan v. Civil Service Com., 3 Ill2d 81.) The judiciary is ill equipped to act as a super school board in assaying the complex factors involved in determining the best interest of the schools and the pupils affected by a change in boundaries.”

As indicated by the Supreme Court in Oakdale Community School Dist. No. 1 v. County Board of School Trustees of Randolph County, 12 Ill2d 190, 145 NE2d 736, the welfare of the affected districts and their pupils as a whole must control rather than the wishes of a few, and the petition is to be granted only where the benefit derived by the annexing and affected area clearly outweighs the detriment resulting to the losing district and the surrounding community as a whole. In the case before us, neither district will be affected in any substantial measure. As stated in Burnidge v. County Board, 25 Ill App2d 503, at 509, 167 NE2d 21, at 24:

“So far as any benefit or detriment to either district is concerned the record shows that neither district will be affected in any substantial measure. Thus, the determination should be made to turn solely upon the welfare of the pupils. It is clear from the record that none of the pupils of either district excluding the students who live in the territory petitioning, will be affected by the granting or denial of the petition. But on the other hand, the evidence clearly shows that the welfare of the students living in the territory sought to be changed will clearly be affected.”

The court pointed out in the Burnidge case that with the educational opportunities equal, there is an obvious advantage to a child attending a school in close physical proximity to the child’s home. The additional saving in transportation costs and the time spent daily by children riding a bus involves a certain safety factor and a lessening of fatigue in going to and from school. The court emphasized, however, that even more than those considerations is the fact that an identification with the school district in the child’s natural community center results in increased participation in school activities by the child and his parents. It is pointed out that such increased participation cannot but result in an improvement in the educational picture of the entire area.

We had occasion in Wheeler v. County Board of School Trustees of Whiteside County, 62 Ill App2d 467, 210 NE2d 609, to consider similar issues. We pointed out in that case that while the personal wishes of individuals standing alone would not justify detachment of land from one school district and annexation to another district, the factor of convenience to parents and children must be considered. We alluded to the Burnidge case and the value, from an educational standpoint, of attendance at a school in closer physical proximity to a child’s home and in the natural community center where a child and parents would be more likely to participate in school activities. While these are not conclusive factors, they are significant items to be considered in detachment and annexation proceedings. We do not read into the School Code a requirement that in all detachment cases, the moving parties must show that the district to which they propose annexation has superior educational curriculum or facilities. Such consideration is an important factor to be considered, but other factors such as are involved in this case and the Burnidge case should also be considered by the Board in its determination of the issue of detachment and annexation. The record in the cause before us shows an apparent equality of educational values and there is evidence of a significant advantage to the children in the territory involved, to be in the Marseilles district which is physically closer and the natural community center for the children and the parents.

While we agree that the record might well have been supplemented in many areas, we do not believe, under the precedent of Burnidge v. County Board, supra, that we would be justified in reversing the decision of the Circuit Court in this cause.

The order of the Circuit Court of LaSalle County will, therefore, be affirmed.

Affirmed.

STOUDER, P. J. and RYAN, J., concur.


source: Caselaw Access Project

author: MR. JUSTICE STAMOS

license: Public Domain

text:
    Dolores G. Passarella, Individually and as Guardian and Next Best Friend of Raymond Michael Passarella, et al., Minors, Plaintiff-Appellee, v. Board of Trustees of the Firemen’s Pension Fund of the Village of Melrose Park, Illinois, Defendant-Appellant.
    Gen. No. 51,654.
    First District, Fourth Division.
    March 5, 1969.
    Guerine & Guerine, of Melrose Park (Guy C. Guerine, of counsel), for appellant.
    Michael F. Ryan, of Chicago (Richard F. McPartlin, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

This is an appeal by the Board of Trustees of the Firemen’s Pension Fund of the Village of Melrose Park, from a judgment order entered in the Circuit Court of Cook County, reversing the action of the said Board of Trustees denying plaintiff’s application for a widow’s and children’s pension, under the provision of the Firemen’s Pension Fund Statute, Ill Rev Stats, c 108½, § 4-114 (1965), which pertinent provision reads as follows : “If a fireman dies in the fire service as a result of any illness or accident which had its inception while he was in such service with pay . . .

The deceased, Raymond M. Passarella, was a certified full-time fireman in the Village of Melrose Park, Illinois and was a fireman within the meaning of the applicable Firemen’s Pension Fund Statute and made the necessary contributions to said Pension Fund as required under the statute.

The record reveals that the deceased came to his death as the result of a bullet wound of the lungs. The bullet was fired from a revolver held in the hand of Mrs. Joan Thompson while deceased was attempting to commit burglary or robbery in her home in Hoffman Estates, Illinois, on January 27,1964.

Plaintiff relies upon Taylor v. John Hancock Ins. Co., 11 Ill2d 227, 142 NE2d 5 (1957), affirming, 9 Ill App2d 330, 132 NE2d 579 (1956), wherein an insurance policy provided that death benefits would be payable if the death occurred through “accidental means” directly and independently of all other causes. In that case the deceased with others conspired to set fire to a residence to collect fire insurances, but while the deceased was in the house spreading gasoline, there was an explosion and fire due to the premature ignition of the fumes by a pilot light the conspirators overlooked. It was ruled that death ensued as a result of an accident, since “it could not be seriously contended that the deceased intended to burn himself to death. That part was accidental.”

Defendant’s theory is “the deceased fireman, Passarella, was killed while in the act of committing burglary, assault and robbery and that his death was not the result of an accident and therefore is not pensionable, under the provisions of the Firemen’s Pension Act.”

In Illinois, the courts have adopted a liberal attitude in their interpretations of “accident” in resolving litigation for the recovery of insurance proceeds or pensions. In effect “accidental result” and “accidental means” are defined as something which happens by chance or fortuitously, without intention or design and which is unexpected, unusual and unforeseen. Taylor v. John Hancock Ins. Co., supra.

The deceased fireman embarked upon a course of conduct that resulted in attempting to gain entrance to a private dwelling by the device of a ruse. Failing in that, he persisted and accomplished entry by the use of a stolen garage door key that afforded him access to the interior of the dwelling. While armed with a loaded revolver and masked to preclude any possibility of subsequent identification he proceeded up the staircase to the locked bedroom door and with force and violence hurled himself against it and made his entrance in the bedroom where he was shot once and again when he endeavored to disarm Mrs. Thompson while hitting her on the head with his gun.

In Henry v. Metropolitan Life Ins. Co., 70 Ill App2d 132, 217 NE2d 482 (1966), this court reversed a $5,000 judgment against the defendant, under a “death through accidental means” provision of a group policy. The decedent in that case in the company of his common-law wife, Hattie Moffitt, visited her parents, Mr. and Mrs. Horace Young, where they engaged in an argument and decedent drew a knife and was going to cut Miss Moffitt’s throat. Mr. Young ordered the decedent to leave the home and “go out and cool yourself and come back after you cool yourself off.” The decedent before departing said “Listen, I’m going downstairs and open my car and get my gun and I’m going to come up here and kill everybody in here and you’ll be jumping out these windows.” The decedent promptly returned armed with a sawed-off shotgun (which later was discovered to be unloaded) and said “I am killing everybody here,” at which moment Mrs. Young grabbed him at the door and there was scuffling. Mr. Young got his gun out of a drawer and observed that Mrs. Young was thrown aside by the decedent against a window causing her to cut her arm. At this moment, Mr. Young testified, “When she fell he was an open target, I just shot him .... He had the gun, just I shot before he could get himself set to shoot me. . . . [The gun was] pointed right toward me, . . . and he said Tapa Young, I’m going to kill you.’ ... I shot in a hurry and tried to hit him first.”

The Henry case and the case at bar are analogous in that both decedents were engaged in committing crimes, in both instances felonies. Each decedent was armed and each placed their respective adversaries in the legal and factual position of defending to the point that the taking of the decedents’ lives was justified. Criminal Code of 1961, Ill Rev Stats, c 38, § 7-1 (1965) .

When the decedent broke through the locked bedroom door armed with a gun and his face masked, Mrs. Thompson fired her first shot. She fired her second shot after the decedent had thrown her to the floor and was striking her about a dozen times on the head with his gun. The acts of Mrs. Thompson were a natural and probable consequence of the decedent’s conduct.

The rule adopted by this court in Henry v. Metropolitan Life Ins. Co., supra at page 140, is applicable to the facts in this case:

“We think the rule to be applied to the facts of this case is set forth in ALR2d, Vol 26, p 402:
“It has generally been held that where an insured, armed with a deadly weapon, makes an attack upon another, his resulting injuries will not be accidental even though the person attacked was unarmed or not known to the insured to be armed, since the resistance which the insured must be charged with expecting will be that which the person attacked is justified in using, rather than that which he has the apparent capacity to make.”

We conclude from the record that the decedent’s death was not accidental, but an obvious natural and probable consequence of his conduct that was reasonably foreseeable. For the reasons given, the instant judgment is reversed.

Judgment reversed.

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

       7-1. Use of Force in Defense of Person
      A person is justified in the use of force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. However, he is justified in the use of force which is intended or likely to cause death or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another, or the commission of a forcible felony. 1961, July 28, Laws 1961, p 1983, § 7-1.


author: MR. JUSTICE McCORMICK

text:
    Lorraine M. Nowaczyk, Plaintiff-Appellant, v. Dale F. Welch and W. C. Brooks, d/b/a Brooks Trucking Company, Defendants-Appellees.
    Gen. No. 51,881.
    First District, Fourth Division.
    March 5, 1969.
    Irving Goodman, of Chicago, for appellant.
    Beverly and Pause, and John J. O’Malley, of Chicago, for appellees.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

Plaintiff filed suit against defendants for personal injuries sustained in an automobile accident. This appeal is taken from an order dismissing the case for want of prosecution.

After one change of venue the case was assigned to Judge Canel for trial, and on May 3, 1966, Harold L. Ward, attorney for plaintiff, and John J. O’Malley, attorney for defendants, picked a jury. The case was con-tinned to the following morning for opening statements and the hearing of evidence.

On May 3, 1966, at 10:00 p. m., Ward called O’Malley at his home to advise him that he was ill and would be unable to proceed with the trial on the following day. O’Malley advised Ward to prepare medical testimony to support his claim so that Judge Canel might rule on Ward’s assertion of illness. The following morning O’Malley appeared in court. An assistant of Ward’s also appeared and told the judge that Ward could not appear in court because he had become ill during the previous evening; that Mrs. Ward had called him the evening before to notify him that Ward would be unable to commence the trial on May 4; and that he did not know the exact nature of Ward’s illness. Judge Canel continued the cáse until May 5, to find out what had happened to Ward.

During the afternoon of May 4, 1966, the judge held a discussion of the matter in chambers, at which meeting a former associate of Ward’s—a Mr. Anthony—was told that some evidence of Ward’s illness would have to be presented to the judge so that he could decide what to do with the case. The judge stated that he had spoken with Ward’s personal physician—a Dr. Siegel—who had told him he had not seen Ward and did not intend to see him; that there was nothing wrong with him, as he had told Ward’s wife the evening before; that she should give him a sedative and have him stay at home the next morning, then go back to work. The judge further stated that in a second telephone conversation the doctor again said he did not intend to see Ward, that there was nothing wrong with him.

On May 5,1966, Attorney Anthony and Attorney Buchholz (who had referred the case to Ward for trial) appeared before Judge Canel to request a mistrial. Anthony, in support of the motion, said he had talked to Ward on May 4, at which time Ward told him he was trying to get Dr. Siegel to testify in court, but the doctor was busy and could not appear that morning. Anthony further stated that Ward had advised him he had a thyroid condition for which he was taking a drug; that the condition, which he had had for years, increased his pulse rate and upset him, requiring sedative treatment.

Buchholz testified that he had known Ward for 35 years; that in his opinion Ward was a competent, experienced attorney with an outstanding reputation in the personal injury field. He stated he had talked with Ward during the afternoon of May 4, at which time Ward had seemed irrational and disturbed; that Ward had said he was ill and unable to proceed with the case. Buchholz had gone unannounced to Ward’s home, where he found him in bed, literally shaking, pale, drawn, and considerably agitated.

Attorney Anthony offered to have Ward’s secretary testify as to preparations which had been made, so as to set at rest any suggestion that Ward was unprepared to proceed with the trial. The secretary testified she had personal knowledge of Ward’s preparation for the trial which included arrangements to have three doctors from Michael Reese Hospital testify, as well as two other witnesses.

The court then arranged to have a Dr. Brownstein examine Ward that same afternoon so he could report his findings. After an adjournment, court was reconvened on the afternoon of May 5, at which time the court stated that Dr. Brownstein had examined Ward and given an oral report to the court to the effect that Ward had a “rheumatic cardiac of long standing; that he had a goiter which is toxic; that Ward claimed to be nervous, tense, and he wanted to stay in bed 3 or 4 days; that the doctor had assured the Court that the trial of the case would not cause Ward’s death or serious injury.” The case was continued to May 6,1966.

The following morning Attorney Ward appeared in court and stated that Dr. Brownstein had been served with subpoena the previous evening; that the doctor, who had not appeared in response to the subpoena, had told Ward the court had misunderstood his report. Accordingly, Ward attempted to offer further proof which Judge Canel denied, and after Ward stated he was not “ready to go” that morning, Judge Canel dismissed the case for want of prosecution. A subsequent order of the court of September 9, 1966, denied a motion and petition filed by plaintiff, which motion and petition sought to have the court set aside its order of May 6 which had dismissed the suit for want of prosecution.

This appeal is prosecuted to reverse the lower court orders of May 6,1966, dismissing the suit, and of September 9, 1966, denying the motion and petition to set aside the said order of dismissal, with directions to place the case back on the trial calendar for a trial on the merits.

OPINION.

It would seem to be a matter of pure reasoning that if an attorney who has prepared a case for trial becomes ill and is unable to proceed with the trial, the court should grant him a continuance. In Jarvis v. Shacklock, 60 Ill 378, the court said at page 379:

“Illness of counsel would certainly be a good cause for continuance where the court can see that a fair trial is likely to be prevented by such illness, and the party moving for a continuance has shown no unreasonable carelessness.”

It has also been held in various cases from other jurisdictions that where an attorney is unexpectedly prevented by sickness from attending court, there is ample ground for postponing the trial. Turner v. Loomis, 146 Iowa 655, 125 NW 662; Pioneer Engineering Works, Inc. v. McConnell, 123 Mont 171, 212 P2d 641; and Two Republics Oil & Gas Co. v. Reiser (Tex), 247 SW 910.

In Ford v. Ford, 150 Fla 717, 8 So2d 495, the court reversed a dismissal of a suit by the trial court. The lawyer’s sister was seriously ill and he requested a continuance. The court cited and quoted from Courtney v. Central Trust Co., 112 Fla 298, 150 So 276, where it was stated that where a reason is presented to the court that “the rigid enforcement of rules of procedure would defeat the great object for which they were established, it is his duty to so relax them (when it can be done without injustice to any) as to make them subserve their true purpose which is to promote the true administration of justice.”

When Attorney Ward appeared in court on May 6 he stated to the court that Dr. Brownstein had been served with subpoena and that the doctor had told him the court had misunderstood his report. The judge denied the offer of proof and refused to hear any evidence from Dr. Brownstein, and thereupon entered the written order he had prepared withdrawing a juror, declaring a mistrial, and dismissing the case for want of prosecution.

On May 19, 1966, Ward filed a verified petition asking that the order of dismissal of the suit be set aside. In the petition Ward alleged that he was suddenly taken ill on the evening of May 3, 1966, and that he was in bed for two days under sedation, except when he was driven to a physician appointed by the court for examination, and was physically unable to try the case on May 6, and that the case would take a week or ten days.

John J. O’Malley, attorney for defendants, filed a counteraffidavit on June 3, 1966, in which he stated that Ward had called him on May 3, stating he had “passed out” and would not be able to proceed with the trial the next morning. We find no place in the record where defense insisted the case be tried. On June 3, Ward filed a supplemental affidavit in support of his petition of May 19, in which he stated that the court had called the plaintiff and told her he could get her $15,000 in settlement. She told him she wanted $35,000, and the court said it was too much, that she would never get that from the jury. The affidavit then described Ward’s sickness, in which it was stated that Dr. Brownstein, the physician appointed by the court, had examined him, and told him he had a toxic thyroid condition and a mitral valve defect, with his heart beating so loudly that the doctor stated he could hear it before he used his stethoscope; that Ward had an enlarged heart, his blood pressure was above normal; that Dr. Brownstein would telephone the judge and advise him that his physical findings were compatible with Ward’s symptoms and complaints; and that he advised Ward to go home, rest and take tranquilizers.

The affidavit further stated that when Buchholz, Ward’s associate, telephoned Ward that Judge Canel had said Dr. Brownstein had told him there was nothing really wrong with Ward and that coming into court to resume the'trial of the case would not cause Ward’s death, Ward telephoned Dr. Brownstein to tell him what had been said by the judge; that the doctor told Ward the judge must have misunderstood him because he had not made that statement to the court.

The affidavit further stated that Ward had arranged to have a subpoena served on Dr. Brownstein to appear in court the following morning before Judge Canel; that the doctor was served but did not appear, and the judge said he had instructed the doctor not to come in and told him to ignore the subpoena. Attached to the supplemental affidavit was an affidavit of the plaintiff in which she stated that someone identifying himself as Judge Canel had telephoned her and told her he could get a $15,000 settlement for her.

On September 2, 1966, Ward filed the affidavit of Dr. Harry M. Siegel, his personal physician, who stated that he had received a call from Mrs. Ward on the evening of May 3, advising him that Ward had “blacked out” and was complaining that he felt chilled and weak all over; that he had advised Mrs. Ward to have her husband remain in bed for several days and continue with the medication he had prescribed; that it was the doctor’s opinion that Ward “was in no condition to engage in any form of litigation for a period of at least seven days.”

On September 2, 1966, Ward also filed the affidavit of Bernard Buchholz who had referred the case to him. In that affidavit Buchholz stated that on May 5, 1966, at about 3:00 p. m., he appeared before Judge Canel at the judge’s request, and was advised that the case would come to trial, regardless of Ward’s absence; that he, Buchholz, tried to employ William Anthony to try the case for the plaintiff, but Anthony said he would be unable to try it. Buchholz then telephoned Ward, advising him what the court had said Dr. Brownstein told him concerning Ward’s condition; Ward told Buchholz this was not according to Dr. Brownstein’s report to him, and that he would call the doctor. Buchholz then received a call from Dr. Brownstein, who stated there must have been some mistake, that he would call the judge.

On September 7, 1966, Ward filed a petition asking that Judge Canel direct Dr. Brownstein to appear in open court so that he could be examined and cross-examined by respective counsel as to his findings. On the same day the court entered an order denying the request and granting leave to Ward to file the affidavits of Dr. Siegel and Buchholz. On September 9, 1966, Judge Canel entered an order denying the petition and motion of Ward to vacate the order of May 6, 1966, dismissing the case for want of prosecution. The order readopted all the findings in the opinion filed on August 5, 1966, and found that the affidavits of Dr. Siegel and Buchholz were filed without leave of court.

On August 5, 1966, Judge Canel filed a 17-page opinion in which he set forth his reasons for a dismissal of the case. He stated that at 9:30 a. m., on May 4, an office assistant of Ward’s advised the court that counsel was unable to attend; that Mrs. Ward was upset and that Ward had asked her to call and explain; that the assistant could not at that time advise the court further concerning the cause or duration of counsel’s absence, nor was the plaintiff present in court. In the opinion the court said that at that juncture it would have been fully warranted in declaring a mistrial and dismissing the case for want of prosecution.

In the opinion Judge Canel also stated that he had talked with Dr. Siegel who said he had told Ward’s wife “there was nothing wrong with him anyway, that he gets into these every time he gets distressed, and to give him a sedative and perhaps let him stay home the following morning . . . and then let him go back to work”; that Dr. Siegel had said he did not think it necessary to see Ward, and had repreated this in a second conversation with Judge Canel.

The judge stated further in the opinion that Anthony and Buchholz had appeared before the court and had made statements concerning the illness of Ward; that Buchholz had said Ward “appeared to be most irrational, and he appeared to be quite disturbed and stated that he was ill and was in bed, . . . that he was unable to proceed with this matter.” Buchholz further described Ward’s condition when he went to see him, telling the court that Ward “was most pale and withdrawn and appeared to be considerably agitated, and in fact, literally shaking; and in my opinion, ... all I can say is that this man appeared to be totally unable to proceed with any kind of litigation.” The court then told Buchholz that he had found that Ward always looked pale when he was in court.

The opinion also stated that Dr. Brownstein had examined Ward later that day and had given the court his opinion as to his physical condition, stating that he thought Ward should be permitted to stay in bed three or four days. The court said: “The doctor assured me that the trial of the case by counsel would not cause his death or cause serious injury, . . . [Emphasis supplied.] The court stressed the fact that the obligation of counsel to proceed, expeditiously, to trial following the assignment of a case to a trial judge cannot be gainsaid, and cited numerous cases in support, about which it seems there can be no question. The opinion cited other cases, many of which are not in point, and also stated that in the opinion of the judge, the case was not complicated and counsel should have permitted Anthony to substitute for him.

Assuming that the court’s memory of Dr. Brownstein’s statement was accurate, it seems strange that he should stress the fact that the doctor had said an appearance in court by Ward would not cause death or any serious injury. In no case or theory of law presented to us has such a requirement been made in order to obtain a continuance.

In his opinion the judge also seeks to explain his refusal to permit Dr. Brownstein to testify. The explanation is that the doctor had examined Ward as a courtesy to the court; however, he does point out that in his supplemental affidavit Ward questioned the accuracy of the court’s recollection, but he does not submit any affidavit or report in support of that. It would seem that is answered by the fact that counsel desired to have Dr. Brownstein testify in open court.

Among other cases cited in the opinion is Gray v. Gray, 6 Ill App2d 571, 128 NE2d 602, in which the court states that when a case has been sent to a judge for trial he must not entertain any further motions for continuance except perhaps for “some extraordinary circumstance arising between the time the case was sent down for trial and the time the trial judge proceeded to hear it.” It would seem that even though the matter had not gone to the stage where the evidence was presented to the court, there was a question raised which would require further investigation. In accordance with the holding in Condon v. Brockway, 157 Ill 90, 41 NE 634, the trial court’s discretion and its exercise should not be interfered with by the appellate tribunals unless there has been a manifest abuse of such discretion.

In the opinion the court states that “Mr. Anthony is well-qualified to try the case and appeared ready, willing and able to do so.” As a matter of fact, Mr. Anthony had stated to Mr. Buchholz that he would be unable to try the case.

The determination of the trial court was made almost entirely upon the information which Judge Canel said he received from Dr. Brownstein; however, in People v. Wallenberg, 24 Ill2d 350, the court said at page 354:

“This court has held that the deliberations of the trial judge are limited to the record made before him during the course of the trial. A determination made by the trial judge based upon a private investigation by the court or based upon private knowledge of the court, untested by cross-examination, or any of the rules of evidence constitutes a denial of due process of law.”

Also see People v. Thunberg, 412 Ill 565, 107 NE2d 843. In People v. Rivers, 410 Ill 410, 102 NE2d 303, the court said at pages 416 and 419:

“Any private investigation by the court, either during the trial of the cause or while the motion for new trial is pending, constitutes a denial to the defendant of the constitutional guarantee of due process of law.
U
“However innocently any private investigation may have been made, for whatever purpose, and regardless of its results, the defendants’ constitutional right to have everything considered against them produced in open court has been violated.”

In the case before us the trial court abused its discretion in withdrawing the jury and dismissing the case. The judgment of the Circuit Court is reversed and the cause is remanded for trial.

Reversed and remanded.

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


text:
    Ben A. Thompson, Plaintiff-Appellant, v. Carson Pirie Scott and Company, a Corporation, and Earl Salmons, Defendants-Appellees.
    Gen, No. 52,001.
    First District, Fourth Division.
    March 5, 1969.

      Jesmer & Harris, of Chicago, for appellant.
    Herbert L. Caplan, of Chicago (Richard J. Aronson and Medard Narko, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

This appeal is taken by plaintiff from an order entered on January 4, 1967, sustaining a petition of Carson Pirie Scott and Company under section 72 of the Civil Practice Act to vacate a judgment entered May 20, 1966, in favor of plaintiff and against both defendants.

On November 13,1963, plaintiff filed a personal injury action in the former Municipal Court of Chicago, naming Carson Pirie Scott and Company and Earl Salmons as co-defendants, and alleging that Salmons, while in the employ of Carson Pirie Scott and Company, injured the plaintiff by striking him with a motor vehicle which he was driving for defendant company. On December 2, 1963, Carson Pirie Scott and Company executed and filed an appearance form from the part of the printed form which demanded a jury. In its answer to the complaint, filed on December 13, 1963, Carson Pirie Scott and Company [hereafter referred to as defendant] demanded a jury trial. Defendant Salmons filed his jury demand with his appearance, but both defendants failed to pay jury demand fees.

The clerk of the court assigned the case to the non-jury calendar, and the case was called for trial on May 12, 1966. Defendants did not appear, and an order was entered continuing the case until May 20, 1966. When the defendants failed to appear on May 20, the trial judge entered a default judgment against both defendants in the sum of $600. Upon discovery of the default judgment, the defendant filed a petition on August 3,1966, to vacate the judgment of May 20, 1966, pursuant to section 72 of the Civil Practice Act. The regular motion court continued hearing on the petition until November 14, 1966, and a second continuance was ordered on the petition until December 12, 1966. On December 12 the motion judge struck the petition; on December 28 this order was vacated and hearing was set on the petition for January 4, 1967, at which hearing the trial court entered an order vacating its May 20, 1966 judgment and giving defendants leave to file a jury demand. It is this order vacating the May 20 judgment from which the plaintiff takes his appeal.

In its verified petition defendant explained that it had requested jury trial but that the case had inadvertently been assigned to the nonjury trial calendar. Defendant overlooks the provisions of section 51, chapter 53 of Illinois Revised Statutes, which state that the jury fee shall be paid at the time of the filing of the demand and that if the fee is not paid the case shall be tried by the court without a jury.

Defendant further argues that it “was not notified of the trial date and at all times believed the case was on the jury trial calendar.” This court takes judicial notice that no notice of trial dates is sent to litigants prior to the trial, and that the clerk of the court causes a list of cases to be called for trial to be published in the daily Municipal Court Record on the preceding day. No question is raised by defendant that there was no publication of the date of trial in the daily Municipal Court Record, and defendant offers no explanation for not checking the court files between December 13, 1963, when it filed its answer, and May 20, 1966, the continued trial date at which the default judgment was entered.

Litigants must assume the burden of following their cases in the courts, and section 72 does not relieve a party from the consequences of his own negligence in this regard. Esczuk v. Chicago Transit Authority, 39 Ill2d 464, 236 NE2d 719; Forsberg v. Braiterman, 101 Ill App2d 475, 243 NE2d 433; Bridson v. Maywood Cab Co., Inc., 79 Ill App2d 295, 224 NE2d 572 (Abst).

In the instant case the defendant was negligent in failing to file a proper jury demand and to pay the fee therefor, and in failing to follow the progress of the case in court prior to the time the default judgment was entered on May 20, 1966. The order of the Circuit Court vacating the judgment in favor of the plaintiff is reversed.

Reversed.

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


text:
    Fred Nemerovski, and Company, Plaintiff-Appellant, v. Vito Barbara, Defendant-Appellee and Cross-Appellant.
    Gen. No. 52,176.
    First District, Fourth Division.
    March 5, 1969.
    Rehearing denied March 31, 1969.

      Wexler & Wexler, and Samuel S. Cohon, of Chicago, for appellants.
    Anthony F. Spina, of Elmwood Park (Anthony F. Spina and Philip J. McGuire, of counsel), for appellee.
   MR. JUSTICE STAMOS

delivered the opinion of the court.

This is an appeal by plaintiff from an order dismissing his Second Amended Complaint. Defendant has taken a cross-appeal from an order denying him relief under section 41 of the Civil Practice Act.

Plaintiff, Fred Nemerovski, & Company, brought suit against the defendants, Vito and C. Barbara, to recover the balance due for earned premiums on certain insurance policies sold by the plaintiff to the defendants.

Plaintiff’s original verified complaint alleged that there was a balance of $2,936.40 due plaintiff from defendants Vito and C. Barbara for earned premiums on insurance policies sold to the defendants. Defendants answered the complaint by denying the allegations of the complaint; defendants also filed a verified counterclaim in two counts. Count I of the counterclaim alleged that there was a balance due defendants (counterplaintiffs) in the amount of $60.82 “for return premiums due to credits, cancellations and audits” on various insurance policies sold to defendants (counterplaintiffs) by plaintiff (counterdefendant). Count II was based on section 41 of the Civil Practice Act in which defendant (counter-plaintiff) sought to recover attorney fees and the costs of defending against the original complaint on the ground that plaintiff was guilty of “wrongfully pleading known untrue facts.” Plaintiff (counterdefendant) filed an answer denying the allegations of the counterclaims and reaffirming his original complaint. Subsequently defendants (counterplaintiffs) amended Count I of the counterclaim alleging that the balance due was $59.60 rather than the $60.82 as originally alleged.

Various motions were filed by both parties during the course of the pretrial. As a result of these motions, C. Barbara was dismissed as a defendant on motion of the plaintiff; plaintiff was ordered to produce certain books and records for the purpose of discovery; defendant’s motion for summary judgment was denied; and plaintiff was granted leave to file a Second Amended Complaint.

Plaintiff’s Second Amended Complaint like the original complaint was verified. A statement of account, Exhibit “A,” dated December 27, 1966, was attached to the original complaint and reflected a balance due of $2,936.40. A statement of account, Exhibit “B,” was dated December 8, 1966, and attached to the Second Amended Complaint and carried forth the previous balance of $2,936.40, then listed other credits and debits reducing the balance due to $748.41. Paragraph 2 of the Amended Complaint alleged as follows:

“That since the filing of the plaintiff’s first Amended Complaint herein various credits have been received from the insurance companies and there now is now due and owing from the defendants a balance of $748.41 for earned premiums on various policies of insurance issued to the defendants at their special instance and request as per itemized statements hereto attached and made a part hereof and marked Exhibit A and B.”

After plaintiff had filed his Second Amended Complaint the defendant served upon plaintiff a Bequest to Admit Facts. Plaintiff answered certain of the requests and was excused by court order from answering others.

Defendant then filed a motion to strike the Second Amended Complaint. The motion stated in part:

“The verified Second Amended Complaint at Law states in Paragraph 2 that the credits allowed to the account of the Defendant, since the time of filing the verified First Amended Complaint at Law, were received since that time, namely, October of Í966. In a request to admit facts, filed with this court, and at a hearing on which was held February 9, 1967, the Plaintiff, under oath, admitted receipt of these credits from as far back as the year 1963. That perjury has been committed in the filing of said Corn-plaint. Further, this Defendant states that the complaint on its face is defective and that Paragraph 2 of said complaint states that the credits in ‘Exhibit B’ were allowed since October 1966; whereas, said ‘Exhibit B’ shows that the credits were allowed in some instances years before.”

An order was entered pursuant to defendant’s motion dismissing plaintiff’s Second Amended Complaint and finding against Plaintiff. Plaintiff has appealed from this order.

Defendant never filed an answer to the Second Amended Complaint nor is there any denial in the record that the defendant is not indebted to the plaintiff for the amount alleged in the Second Amended Complaint.

OPINION

Plaintiff contends that the court had no right to dismiss the case because of contradictory statements in the pleadings. Defendant argues that the contradictions were perjurious.

There is no doubt that the verification of a material allegation in a pleading, knowing it to be false, is perjury. Loraitis v. Kukulka, 1 Ill2d 538, 116 NE2d 329 (1953). The knowing verification of a false material allegation subjects the person who made the alleged false material allegation to respond to perjury charges. Ill Rev Stats, c 38, § 32-2 (1967). A person who commits perjury may be held in contempt notwithstanding that it is also punishable as a criminal offense. People v. Bialek, 31 Ill App2d 281, 175 NE2d 278 (1961); ILP, Contempt, § 27. The verification of a false statement also impairs the confidence in the veracity of the party who made the false verification. Petru v. Petru, 4 Ill App2d 1, 123 NE2d 352 (1954). Defendant has not cited any authority holding that a perjurious complaint is subject to dismissal on that ground.

However, he does contend that a court has the power to dismiss a complaint on the ground that it is a sham. Defendant has misconceived the doctrine of sham pleading. The doctrine of sham pleading only had its application with respect to sham pleas or answers, and was not applicable to complaints in the absence of statutory authority. 71 CJS, Pleading, § 69. The practice of striking pleas as sham was stated in Robertson v. Moir, 88 Ill App 355 (1899) at page 356:

“The practice of attacking pleas by motion to strike off upon the ground that they were sham pleas, was in the common law practice based upon the obvious falsity of the plea or upon some showing by affidavit accompanying the motion, by which it was made to appear to the court that the plea thus attacked was so clearly a false plea that it could not be treated as presenting any matter of substantial litigation.” 1 Chitty Pl (9th Ed), p 542; Stephen on Pleading, (Andrews’ Ed) § 228. (Emphasis added.)

Even assuming that the doctrine of sham pleading could be applied in the case where an allegation in the complaint is made with the knowledge that it was false, we find no justification for dismissing the Second Amended Complaint.

Assuming that the allegation as to the point in time when plaintiff received the credits from the insurance companies was false, this alone does not warrant a dismissal of his complaint. The point in time at which plaintiff received the credits has no relationship to his right to seek recovery of the balance that he alleges is due him.

Defendant moved to dismiss the complaint, not for summary judgment supported by affidavits nor judgment on the pleading. He thereby admitted as true the facts properly pleaded in the complaint and cannot argue that they were untrue.

Since defendant’s motion admitted all facts properly pleaded the court had no occasion to find that any of the material averments were untrue. The only issue before the court on defendant’s motion to dismiss was an issue of law. Section 41 of the Civil Practice Act does not apply where defendant’s only pleading admits as true all properly pleaded facts. Sarelas v. Anagnost, 86 Ill App2d 69, 229 NE2d 890 (1967). The order denying defendant’s motion for attorney fees and expenses under section 41 of the Civil Practice Act is affirmed.

For the reasons given, the order of the court below entered February 16, 1967, dismissing plaintiff’s Second Amended Complaint is hereby reversed and the cause remanded with direction to vacate the dismissal and reinstate the cause on the dockets of the Circuit Court of Cook County.

Reversed and remanded with directions.

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


author: MR. PRESIDING JUSTICE DRUCKER

text:
    Maria Menolascino, Plaintiff-Appellee, v. The Village of Franklin Park, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,732.
    First District, Fourth Division.
    March 5, 1969.

      Norman E. Jackson, of Franklin Park, for appellant.
    Nicholas T. Kitsos, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court.

The defendant, Village of Franklin Park, appeals from a judgment declaring that its zoning ordinance is unconstitutional as applied to plaintiff’s property and from an order permitting plaintiff to construct a four-apartment building thereon.

In her amended complaint plaintiff alleged that she is the owner of vacant property consisting of 50 feet by 124 feet, 3% inches on the northeast corner of Lincoln Street and Gage Avenue in the Village of Franklin Park; that the property is zoned “R-l One-Family District”; that the property is best suited for a multiple apartment and that the present zoning is unconstitutional, invalid and void.

The evidence showed that plaintiff’s property runs for 50 feet along Lincoln Street. That street is a state-controlled access highway and is paved but does not have curbs; the highway serves as a thoroughfare between Mannheim Road to the east and Franklin Street to the north. Along Lincoln Street to the north for 400 feet there are eight homes on the east side and seven on the west; the remainder of the block to Franklin Avenue is light industrial. To the south there are single family houses for four blocks to Chestnut Street; and to the east along Gage Avenue there are single-family dwellings for seven blocks. To the west directly across the street from the subject property are single-family dwellings; immediately to the west of these and across a back alley are commercial and industrial developments which front on Mannheim Road (the next street to the west of Lincoln Street). Mannheim Road is zoned commercial and industrial. The closest apartment building to the subject property is located at Chestnut Street and Lincoln Avenue about one-half mile to the south.

Michael Menolascino testified that he is the son of plaintiff; that he handles his mother’s affairs; that Exhibit 10 portrays an eight-unit building; that it could be redesigned for only four or six units; that he has had no success in selling the property for residences or for a multiple but would build a multiple himself; that if he cannot build a multiple of the type shown by Exhibit 10 the property will remain vacant.

Two of plaintiff’s witnesses testified that the subject property would have a value of $5,000 for single-family purpose, that the best use of the property would be for a two-story apartment dwelling as shown by Exhibit 10, that such a building would not depreciate values but would upgrade the neighborhood. Defendant’s witness values the property at $7,000 for single-family purposes and at $10,000 for a four-flat apartment. Defendant’s witness testified that the highest and best use of the property would be single-family residential for which it was zoned because that would be compatible with the surrounding neighborhood.

Robert Phillips, the Commissioner of Public Works for the Village of Franklin Park, testified on behalf of the defendant that under the ordinances of Franklin Park an eight-apartment building would not be permitted; that there are other areas in the Village where there is multiple zoning with multiple dwellings surrounded by residential.

A party challenging the validity of a zoning ordinance has the burden of proving by clear and convincing evidence that the city has abused its legislative discretion in classifying property in a certain manner. The proof must establish not merely that the property could reasonably be classified otherwise nor that the court would classify it otherwise; rather it must show that legislative decision as to the property is clearly unreasonable. Jans v. City of Evanston, 52 Ill App2d 61, 67-68, 201 NE2d 663; Exchange Nat. Bank of Chicago v. Cook County, 25 Ill2d 434, 441, 185 NE2d 250; Bennett v. City of Chicago, 24 Ill2d 270, 273, 181 NE2d 96. Where there is room for legitimate difference of opinion concerning the reasonableness of a particular zoning ordinance, the finding of the legislative body will not be disturbed. Wesemann v. Village of La Grange Park, 407 Ill 81, 88, 94 NE2d 904; Jacobson v. Village of Wilmette, 408 Ill 250, 85 NE2d 753.

In order to meet this burden plaintiff argued below that the proximity of her property to the commercial and industrial uses on Mannheim Road and Franklin Street, the heavy use made of Lincoln Street by large, noisy commercial vehicles, the disparity in value of the subject property under different zoning classifications, and the existence of another apartment building within one-half mile of the subject property combined to make the “R-l” classification unreasonable.

The proximity of the subject property to a commercial zone does not render the limitations placed on the subject property unreasonable or invalid. Wesemann v. Village of La Grange Park, 407 Ill 81, 89, 94 NE2d 904; DeBartolo v. Village of Oak Park, 396 Ill 404, 71 NE2d 693. Nor is a zoning classification rendered invalid by the location of the subject property on a heavily traveled street. Cosmopolitan Nat. Bank of Chicago v. Village of Mt. Prospect, 22 Ill2d 463, 177 NE2d 365; Elmhurst Nat. Bank v. City of Chicago, 22 Ill2d 396, 176 NE2d 771. Nor does the combination of proximity to a commercial zone and location on a heavily traveled thoroughfare render a classification unreasonable and invalid. Jans v. City of Evanston, 52 Ill App2d 61, 71-72, 201 NE2d 663.

Plaintiff also contends that the ordinance is unreasonable because her property would have a greater value under a different zone classification. But this also is not sufficient reason to set aside the judgment of the Village zoning authority concerning the nature of a neighborhood. Jacobson v. City of Evanston, 10 Ill2d 61, 68, 139 NE2d 205; First Nat. Bank of Lake Forest v. County of Lake, 7 Ill2d 213, 227, 130 NE2d 267.

Plaintiff finally contends that the judgment should not be disturbed because it is not against the manifest weight of the evidence. However, the very best that can be said of plaintiff’s position is that a legitimate dispute may exist as to the desirability of the zoning classification presently imposed upon her property. Under such circumstances the legislative judgment must prevail. Standard State Bank v. Village of Oak Lawn, 29 Ill2d 465, 471, 194 NE2d 201; LaSalle Nat. Bank v. City of Chicago, 68 Ill App2d 412, 415, 216 NE2d 224; Jans v. City of Evanston, 52 Ill App2d 61, 72-73, 201 NE2d 663.

The judgment of the Circuit Court is reversed.

Reversed.

ENGLISH and STAMOS, JJ., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Isaiah Brown, Defendant-Appellant.
    Gen. No. 10,946.
    Fourth District.
    March 6, 1969.

      Nicholas J. Neiers, of Decatur, for appellant.
    Basil G. Greanias, State’s Attorney of Macon County, of Decatur (Frederick P. Erickson, of counsel), for appellee.
   SMITH, J.

The defendant was convicted by a jury of burglary and sentenced to the Illinois State Penitentiary for a term of not less than 10 nor more than 20 years. This is an appeal from that conviction in which the defendant asserts that the following error was committed: (1) by the trial court in refusing to suppress evidence obtained in an alleged illegal search of the automobile in which the defendant was riding, (2) the State failed to prove the defendant’s guilt beyond a reasonable doubt and (3) the jury was improperly instructed.

Before reaching these errors, a preliminary question is raised; i. e., whether the defendant had an adversary counsel on his motion for new trial. The public defender represented the defendant in the trial and filed a motion for new trial alleging nine points. When this motion was argued, trial counsel stated “I have gone back through this record several times since the trial and since the first pretrial hearing on motion to suppress evidence. I want to say especially to the defendant in this case that it is my opinion there is no grounds for a new trial here. I want further the record to show that I am not going to prostitute my profession by belaboring the court with misrepresentations concerning evidence in this case, so I submit we have filed this motion for a new trial and I am going to ask the court to rule upon the motion on his memory of evidence in this case.” Defendant cites Anders v. State of California, 386 US 738, 18 L Ed2d 493; People v. Jones, 38 Ill2d 384, 231 NE2d 390, which the State’s Attorney dismisses with the suggestion that these cases relate to counsel on appeal and do not relate to this case except by analogy. Suffice it to say that a motion for new trial is historically necessary to preserve some errors on appeal and we think it is not even debatable but that the rule of advocacy applies to trial practice. People v. Craig, 40 Ill2d 466, 240 NE2d 588; People v. Slaughter, 39 Ill2d 278, 235 NE2d 566. Trial counsel did not pursue the appeal and present counsel was appointed to prosecute it. In this court, present counsel raises three of the same points which were raised in the motion for new trial and, in addition, the point we now discuss.

Anders has been the spawning ground of adversary representation in appeals as a matter of right. Its beneficent objectives in those cases where the alleged error is patent, substantial or fairly debatable cannot be denied. Its unfortunate by-product has been all too frequently to engage court and counsel in a time-consuming academic exercise in a legal and a factual vacuum. Just how candor of counsel on factual or legal issues presented by a record should be condemned rather than commended escapes us. Counsel evaluated the merits of the motion. He raised in that motion the alleged errors now argued in this court. There is no indication that there are other errors not raised in the trial court. New counsel on appeal has been properly appointed and has reviewed the record. Under such circumstances, we cannot say that the defendant has not been fairly, adequately and honestly represented in both the trial court and here. We turn now to the errors assigned.

Defendant’s motion to suppress evidence was denied. The evidence was some fifteen guns obtained from the trunk of the car in which the defendant was riding and one obtained from under the seat. Defendant and four others were riding in a car in Robertson, Missouri. The car was driven by one James Mills. A police officer in that city testified that he noticed the car had no license plates. He followed it with red lights on and siren blowing. The car increased its speed, began weaving, narrowly avoided two pedestrians, and turned into a side street. He was able to stop it only by forcing it to the curb. When stopped, the driver had an expired driver’s license. The driver stated the car belonged to his brother-in-law, the other occupants stated that it had been borrowed from a friend. Four of the five occupants of the car were from Decatur, Illinois. Defendant’s witnesses testified that there was a sticker on the car indicating that it was operating under a permit. The officer asked to see in the trunk; the evidence is in dispute whether the driver-Mills opened the trunk or the officer did it. In the trunk fifteen guns were found identified with the burglary. The officer testified that the driver was under arrest before the search. Mills and the defendant testified otherwise. They stated that the car did not speed up and that they were not avoiding the officer. The credibility of the witnesses is best determined by the trial court who saw and observed them testify. In our judgment this case is controlled by the principles stated in People v. Brown, 38 Ill2d 353, 231 NE2d 577, where the facts are strongly similar other than that the car here was stopped at 1:30 p. m., while in Brown it was stopped at 1:30 a. m. for a traffic violation. In Brown, it is stated at p 358, 231 NE2d 577,579:

“It is the duty of police officers when confronted with circumstances giving an appearance of criminal activity to investigate in an effort to determine whether such criminal activity, in fact, exists. This court has sustained such searches, even after the defendant has been picked up as a mere traffic law violator, where the circumstances reasonably indicate that a more serious crime has been committed. People v. Thomas, 31 Ill2d 212, 201 NE2d 413; People v. Faginkrantz, 21 Ill2d 75, 171 NE2d 5.”

We think a reasonably alert police officer under the circumstances here recited would reasonably believe that he was dealing with more than a mere traffic violator, and that the search was not unreasonable. People v. Zeravich, 30 Ill2d 275, 195 NE2d 612; People v. Thomas, 31 Ill2d 212, 201 NE2d 413. The trial court did not err in denying the motion to suppress.

The defendant objects to People’s Instruction No. 12 which in substance informed the jury that recent unexplained, exclusive possession of stolen property by defendant may raise an inference of his guilt sufficient to warrant conviction in the absence of other facts and circumstances and evidence which leave in the minds of the jury a reasonable doubt as to guilt. This instruction stated: “Possession may be exclusive even though joint.” It is urged that there is no evidence in this record to establish either joint possession or individual exclusive possession in the defendant. People v. Evans, 24 Ill2d 11, 179 NE2d 657, is cited as authority and if the validity of this instruction depended solely upon the evidence in Missouri, it could well apply and the instruction would thus be inapt. In People v. Evans, supra, the evidence indicated that the defendant neither owned the car, was driving the car nor had a key which would unlock the trunk. Under such circumstances, possession sufficient to infer guilt was not established. In this case, however, the testimony of Mills that the defendant went down a railroad track and came back with the guns in a tote bag certainly shows exclusive possession at that time if believed. It is not the province of this court to determine on this issue whether his testimony should or should not be believed. It was evidence which warranted the giving of the instruction and it was not error to do so.

The defendant further contends that his conviction rests upon circumstances and the unbelievable testimony of his codefendant-Mills. And this is true. Mills pleaded guilty to a lesser crime than burglary and testified on behalf of the People. His testimony on the trial is somewhat at variance with the statements previously given to the Missouri Police. If believed, however, by the jury, it indicated that Mills was driving the defendant to work and on the way back, Brown indicated that he had found something. They stopped at the railroad tracks and Brown went after the objects so found. He returned with a tote sack full of the guns which were offered in evidence and which were beyond dispute the fruits of the burglary. Later Brown, Mills, Tate, a friend of theirs, and Ragsdale, Brown’s girl friend, all headed for St. Louis in a car belonging to the brother of Mills. Both Ragsdale and Tate had been made original defendants, but prior to the trial of this case, were dismissed. They testified on behalf of the defendant. Brown had a previous conviction and admitted to it in the courtroom and at the time of the events in question was living with Natalie Ragsdale. Mills also testified that they discussed the disposition of the guns and talked about a trip to St. Louis for that purpose. Brown denied all of this testimony and also furnished an alibi covering the night in question except from 5 o’clock in the afternoon until about 9:30 p. m. It is here argued that since the burglarized place was located close to three or four taverns in a lighted area that the burglary just simply couldn’t have taken place at this time without somebody observing it. The credibility of these witnesses and the weight to be given their respective testimony is primarily and fundamentally that of the jury. It is difficult for us to appraise their testimony from the cold record. We see no reason to disturb the jury’s verdict.

For the reasons here indicated, we are of the opinion that the defendant had a fair trial and that his guilt was established beyond a reasonable doubt. The judgment of the trial court is accordingly affirmed.

Affirmed.

TRAPP, P. J. and CRAVEN, J., concur.


author: PRESIDING JUSTICE ABRAHAMSON.

text:
    Bruno Garshva, Plaintiff-Appellee, v. City of Rockford, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 68-40.
    Second District.
    March 6, 1969.
    Rehearing denied March 27, 1969.
    John W. Nielsen, City Attorney, of Rockford, for appellant; Pedderson, Menzimer, Conde and Stoner, of Rockford, for appellee.
   Opinion by

PRESIDING JUSTICE ABRAHAMSON.

Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. George A. Jones, Defendant-Appellant.
    Gen. No. 50,659.
    First District, Fourth Division.
    December 31, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Stewart Scudder, Frederick F. Cohn, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.

      Daniel P. Ward, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Eldridge Hersey, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense Charged

Murder.

Judgment

After a jury trial, defendant was found guilty and sentenced to a term of 50 to 100 years.

Contentions on Appeal

1. Defendant was denied a fair trial because the jury heard repeated references to defendant’s statements to the police, although subsequently the court refused to admit these statements into evidence.

2. The court erred in failing to instruct the jury as to the offense of manslaughter.

3. The instruction given to the jury on drunkenness was erroneous and misleading.

4. The court erred in failing to inform the jury that certain evidence had been stricken.

5. It was error to allow the State to rehabilitate a witness through the use of leading questions.

6. The State’s Attorney made improper and prejudicial comments during his closing argument.

7. The sentence is excessive.

Evidence

Helen Blackman, for the State.

She is defendant’s girl friend. Defendant spent the night of May 2, 1964, in her room at 5150 S. Indiana Avenue. They arose shortly after 8:00 a. m., May 3, and together with five other residents of the flat sat around laughing and talking. Defendant woke the decedent (Andrew Johnson) at 10:00 a. m. and sent him to the store. Decedent returned with a pint of port which the eight of them consumed. Decedent went for another fifth of port and, after returning with it, they again watched television. Everyone was congenial.

Thereafter, deceased took a nap. Myrtle Britton, also a resident of the flat, came to see the witness to have her hair done, so the ladies went to the kitchen. Then decedent wandered back into the room where defendant had continued watching television. Defendant ordered him out, but the witness countermanded the order, as it was her room. The decedent walked away and defendant came out of the room with a butcher knife. She and Myrtle ran after defendant, but defendant had stabbed decedent before they could stop him.

She has no recollection of either man having a wine bottle at that time.

Myrtle. Britton, for the State

She corroborated the testimony of Helen Blackman, adding that after defendant had stabbed decedent once, he had drawn back again when she and Helen grabbed his arm; that he then let her take the knife from him; that she called the police and gave them the knife when they came about five minutes later; that she saw nothing in decedent’s hands at the time of the stabbing.

Dr. Eugene Tapia, for the State

He is the doctor who performed the autopsy on decedent. His examination revealed both a stab wound and surgical incisions. In his opinion, the stab wound was the cause of death.

Police Officer David Durkin, for the State

At 10:55 a. m. on May 3, 1964, he received a call that there had been a stabbing at 5150 South Indiana Avenue. He went to that address, where he saw the decedent lying in a pool of blood in his bedroom. He had a conversation with Myrtle Britton and Helen Blackman, and was told that defendant had stabbed the decedent. Myrtle gave him a knife which she said had been the weapon used to wound decedent.

Police Officer William Stroechia, for the State

At 1:30 a. m., May 4, 1964, he went to a house at 5150 South Indiana Avenue, Chicago, Illinois, talked to a woman named Blackman in front of the house, entered the rear of the house, arrested defendant and took him to the police station. He didn’t know whether or not defendant was sick at the time of his arrest.

Police Sergeant Richard Dwyer, for the State

On May 4, 1964, he took statements from Myrtle and Helen at the police station in defendant’s presence. After the women finished, defendant said their statements were true. Thereafter, defendant consented to give him a written statement. At the time defendant signed this statement, he had been in custody for sixteen hours. The witness was also present when defendant gave a second statement to Assistant State’s Attorney Carroll.

Asst. State’s Attorney Laurence Carroll, for the State

On May 4,1964, he took a statement from defendant in a Chicago police station. He identified him in court. When the statement was taken, Sergeant Dwyer, a court reporter, and defendant were also present. He identified a document, marked for purposes of identification, as an accurate transcript of that statement. When this statement was taken, defendant had been in continuous police custody for 22 hours and had not been taken before a judicial officer. Defendant was charged with murder, but, so far as the witness knew, had not been advised of his constitutional rights.

Paul Esling, for the State

He was the court reporter who transcribed the statement described by Carroll. He did not recognize defendant in court. He could not locate any place in his notes which indicated that defendant had been asked, or consented, to give a statement.

Asst. State’s Attorney Paul H. Knott, for the State

He gave defendant a copy of the statement on May 7 in the police station. He read the statement to defendant while defendant followed the text in his copy and asked for additions or corrections. He did not tell defendant that the statement would be used against him, nor did he advise him concerning his constitutional rights. Defendant signed the statement.

Defendant, on his own behalf

(Defendant did not contradict Helen Blackman’s testimony on any material point, but emphasized the circumstances immediately preceding the stabbing.)

He was fixing a ham sandwich with a knife when decedent entered the room. Decedent took the bottle containing the remaining wine which defendant had intended to save for Helen. When defendant went after decedent, it was with the intent to take back the bottle. He grabbed decedent, but wasn’t conscious of having the knife. The women ran after him, and Myrtle grabbed his hand, saying, “Give me the knife before someone gets hurt.” He didn’t know what she was talking about, and didn’t know what had happened to decedent.

Defendant had known decedent for several years and they had always been friends.

Opinion

(1) Defendant contends that he was denied a fair trial because the jury heard references to statements given to the police by defendant, even though the court refused to admit these statements into evidence. We see here no denial of defendant’s constitutional right to a fair trial, since the court sustained the only objection defendant made to this evidence.

Defendant did not elect to move to suppress the confessions prior to trial. Nor did he object to any of the testimony about which he now complains; nor did he ask for a hearing outside the jury’s presence to determine whether the confessions could be properly admitted. On the contrary, he sat by idly while the testimony was taken, and then cross-examined each of the witnesses. Finally, when the statements were offered into evidence, he objected to their admission and his objection was immediately sustained. Thereafter, he made no request that the court strike the references to the statements. Furthermore, defendant’s written motion for a new trial, containing a dozen different points, did not mention any error in relation to the statements.

The court is not charged with the duty of planning the defense. At no time was it suggested to the court that defendant wanted the testimony in question to be kept from the jury. In the absence of an application, the trial judge would have exceeded his authority had he excluded the evidence as it progressed.

In our adversary system of justice, a defendant will not be heard to complain that he was denied that which he never requested. See People v. Caldwell, 39 Ill2d 346, 236 NE2d 706. Moreover, as a general proposition, defendant cannot assign error to that which he acquiesced in and gave the court no opportunity to correct. People v. Sotos, 26 Ill2d 460, 187 NE2d 245; People v. Boozer, 12 Ill2d 184, 15 NE2d 619. Defendant does not suggest in this court that we notice this alleged prejudice under the plain error doctrine, and we do not think it would be appropriate for us to do so in this case. Supreme Court Buie 615(a); Ill Rev Stats (1967), e 110A, § 615(a).

(2) Next, defendant contends that the jury-should have been instructed on the included offense of manslaughter. The fact that the instructions were not abstracted, leaves this point outside required review. People v. Woodruff, 9 Ill2d 429, 137 NE2d 809. And the fact that no instruction on manslaughter was tendered, left the subject outside the scope of instructions required of the trial court. People v. Caldwell, 39 Ill2d 346, 355, 236 NE2d 706, and cases there cited. Overlooking these matters, however, we find no evidence which would support a conviction for the crime of manslaughter, either voluntary or involuntary. See Ill Bev Stats (1963), c 38, § 9-2 (voluntary manslaughter); § 9-3 (involuntary manslaughter) ; and §§ 7-1, 2, 3 (justifiable use of force in defense of person or property).

There is nothing to indicate that defendant reacted to “serious provocation” (section 9-2(a)). No evidence tends to demonstrate that he believed he was defending person or property (section 9-2 (b)). Nor was there evidence to show that the killing resulted from reckless conduct on the part of defendant (section 9-3(a)). Accordingly, an instruction on manslaughter would have been improper. People v. Marsh, 403 Ill 81, 85 NE2d 715; People v. Latimer, 35 Ill2d 178, 220 NE2d 214.

(3) Again defendant complains about the jury instructions, even though they have not been abstracted. He contends that the instructions given on the subject of intoxication were improper, misleading, and prejudicial. We do not agree. Defendant’s tendered instruction No. 16 (which was given) informed the jury that intoxication is no defense to a crime unless it negatives the existence of the requisite mental state. The State’s tendered instruction No. 12 (also given) cautioned the jury that while voluntary drunkenness may be used to negative the element of intent when it is extreme, merely being drunk or intoxicated is not a sufficient defense. Taking these instructions together, we believe they contain an adequate statement of the law without prejudicial internal conflict. People v. Hicks, 35 Ill2d 390, 397, 220 NE2d 461; People v. Pearson, 74 Ill App2d 400, 403-404, 220 NE2d 876. The question is not whether defendant was intoxicated, but whether, in the light of the evidence relating to intoxication, he had the requisite mental state for murder.

No one instruction need state all the applicable law on any particular question. We must look at the whole series of instructions to see if they provided guidance for the jury which was neither unfair nor incomplete. We conclude that the instructions, taken as a unit, were sufficient. People v. Gilbert, 12 Ill2d 410, 147 NE2d 44; People v. Kelly, 8 Ill2d 604, 136 NE2d 785.

(4) Next, defendant contends that the court erred in failing to instruct the jury that certain important testimony of Dr. Tapia as to the cause of death, had been stricken, citing People v. Williams, 28 Ill2d 53, 190 NE2d 796. Here we need note only that the court, outside the presence of the jury, had decided that the testimony should be stricken; that thereafter the court afforded the State an opportunity to rehabilitate this witness; that this was done; and that the questioned testimony was permitted to remain in evidence before the jury. In this we find no error.

(5) As a corollary proposition, defendant argues that this witness was rehabilitated through the use of leading questions by the State, but this contention is, likewise, without merit, as defendant did not object to the form of the questions and therefore must be deemed to have waived the point.

(6) Defendant contends that the State’s closing argument contained improper and prejudicial comments. We have examined the abstract carefully and find that it sets forth this part of the record only in the form of conclusions and defense argument. Moreover, again defendant failed to raise any objection at the trial. We believe, however that the State’s Attorney’s remarks to the jury were, in general, supported by the evidence, and were not unfairly prejudicial.

(7) Finally, defendant contends that the sentence was excessive.

When the sentence is within the limits prescribed by statute, our power to reduce sentences (Supreme Court Rule 615(b); 111 Rev Stats (1967), c 110A, § 615 (b)) should be wielded with a very considerable caution, for the trial court has, ordinarily, the superior opportunity to determine a fitting punishment. People v. Taylor, 33 Ill2d 417, 211 NE2d 673. We cannot say that the punishment was not proportioned to this senseless taking of another’s life. People v. Smith, 14 Ill2d 95, 97, 150 NE2d 815. See also People v. Caldwell, 39 Ill2d 346, 236 NE2d 706, in which a sentence of 50 to 100 years (identical to the sentence in the case at bar) was affirmed.

Nor are we persuaded by defendant’s arguments concerning probation and parole which are not to be considered as matters of right. People v. Thompson, 381 Ill 71, 72, 44 NE2d 876.

Decision

The judgment of the Circuit Court is affirmed.

Affirmed.

MCCORMICK, P. J. and DRUCKER, J., concur.

       Ill Rev Stats (1963), c 38, § 9-1. Murder.
      (a) A person who kills an individual without lawful justification commits murder if, in performing the acts which cause the death:
      (1) He either intends to kill or do great bodily harm to that individual or another, or knows that such acts will cause death to that individual or another; or
      (2) He knows that such acts create a strong probability of death or great bodily harm to that individual or another; or
      (b) Penalty.
      A person convicted of murder shall be punished by death or imprisonment in the penitentiary for any indeterminate term with a minimum of not less than 14 years. . . .

       This case was briefed on appeal by the Public Defender who had been appointed to represent defendant for this purpose. When the case was set for oral argument, there was a substitution of privately retained counsel. We rescheduled the oral argument for a later date, and allowed time for the filing of additional abstracts and briefs by the new attorney.