text:
    People of the State of Illinois, Plaintiff-Appellee, v. Thomas Gaither, Defendant-Appellant.
    Gen. No. 51,426.
    First District, Fourth Division.
    November 27, 1968.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Ronald P. Katz and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Sheldon M. Schapiro, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

Offense charged

Arson. (Ill Rev Stats (1963), c 38, § 20-1.)

Defense at trial Accident.

Judgment

After a jury trial, defendant was found guilty and sentenced to a term of 1 to 8 years.

Points raised on appeal

(1) It was reversible error for the trial court not to conduct a hearing into the competency of the defendant.

(2) The indictment was invalid.

(3) It was error for the trial court to refuse a tendered defense instruction.

(4) The defendant was not proven guilty beyond a reasonable doubt.

Evidence

Flossie B. Gaither, for the State.

She was the wife of defendant. On May 1, 1965, she was living at 4339 West 13th Street, Chicago. She had been separated from her husband since October 1964, and had not seen him for approximately one month. She had leased this apartment from Shavin Real Estate and paid $90 per month rent. On the evening of April 30, 1965, she had retired to her bedroom at 10:30 p. m. At approximately 3:00 or 4:00 a. m., she was awakened by the coughing of one of her children. She left her bedroom and went to sleep with the children who were two and four years of age.

Later, in the early morning of May 1, 1965, she was awakened by a popping sound which came from the kitchen and the bedroom. She heard the front door slam. She opened the front door and saw defendant running down the stairs. The whole apartment was ablaze with fire. She put on her housecoat, grabbed her children, and fled the building while yelling a warning to the other tenants.

At the time of the incident, the defendant was staying in a mental hospital where he had voluntarily signed himself in. Defendant had told her that if he did anything, no one would do anything to him, because he was going to sign himself into the mental hospital. She had never given defendant a key to her apartment.

Sam Sheppard, for the State.

He was a janitor for the building at 508 South Francisco. He had known defendant for two years. On May 1, 1965, at approximately 9:30 a. m., defendant told Sheppard that he thought that he had killed his wife and two children. Defendant explained that he had been turned out of the mental hospital the evening before. He had gone to his wife’s apartment, where he went up to the back porch and picked the lock. He said to Sheppard that he looked at his wife and thought of killing her and the children with a knife. Instead, he got some paper, put it in the bedroom, lit it, and watched it until it was burning well. Defendant then told Sheppard that he left and waited up the street for the fire trucks.

About 10:30 a. m., Sheppard called Leroy Harris, who had Sheppard’s car, and asked him to drive defendant and Sheppard to the site of the fire. Defendant told the same story to Harris. After viewing the spot, Harris drove defendant to his sister’s house, and Harris then returned to Sheppard’s apartment. From there, the police were called by Harris. Defendant did not appear to have been intoxicated.

Leroy Harris, for the State.

He was a janitor at 29 South Kedzie. He had known defendant since 1957. On May 1, 1965, he saw defendant at the apartment of Sam Sheppard and from there drove the three of them to the address of the fire. During the trip, defendant explained to him the incidents surrounding the fire. (His testimony was substantially the same as Sheppard’s in this regard.) He noticed the building where the fire had occurred and then drove back to Sheppard’s apartment. Shortly after that, defendant went to his sister’s apartment, and Harris called the police from Sheppard’s apartment.

Edward Reynolds, for the State.

He was the police officer who, on May 1, 1965, located defendant in a barber shop. In the squad car, on the way to the station, defendant said he knew why he was being taken to the station. At the police station, in the presence of Reynolds and Officer Porter, defendant said, “I know why I am here.” He said, “. . . you will have to prove it.” He said also, “I set the fire, but prove it,” and that he wished his wife had burned in the fire. Reynolds also testified that defendant started a fire with his clothes while he was incarcerated at the police station. Defendant had said, “I am going to burn this goddamned place down, like I burned the other one.”

George Wilkens, for the State.

He was a detective in the Bomb and Arson Unit. At 4:00 p. m., on May 1, 1965, he and his partner, John Kindle, went to the apartment of Flossie Gaither. From his investigation, he was able to determine that the fire had originated in the bedroom of the apartment. It had traveled into the hallway, the washroom, the kitchen, and then out the rear door which had been left slightly ajar. Heavy charring was found in the bedroom where the bed had been. When he confronted defendant, he denied that he had started the fire.

Thomas Gaither, defendant, on his own behalf.

He arrived at Flossie Gaither’s apartment at approximately 4:30 a. m., on May 1, 1965. After trying the front door, he entered through the rear door, which was open (he had no key), and went to his wife’s bedroom where he lit a cigarette and began to read a newspaper. He soon fell asleep. He was awakened later by the smell of smoke which filled the house. Without warning his wife and children, he got out of bed and ran through the rear door down the stairs to the ground level. He then thought of his wife and children and returned to the apartment. Finding no one in the apartment, he ran to a gas station on Kostner Street to call the fire department. Before reaching the service station, he saw fire trucks going to the apartment.

Later that morning, he saw Sam Sheppard, whom he told of the fire in his wife’s apartment. He also told his story to Leroy Harris. (He denied the contents of the conversations as testified to by Sheppard and Harris.)

Opinion

(1) Defendant argues, first, that the evidence raised a bona fide doubt as to his sanity and that there arose a duty upon the trial court to suspend proceedings and conduct a sanity hearing under Ill Rev Stats (1963), c 38, § 104-2 (b). The statute provides:

(b) If during the trial the court has reason to believe that the defendant is incompetent the court shall suspend the proceedings and shall conduct a hearing to determine the defendant’s competency and shall at the election of the defendant impanel a jury to determine that issue.

Thus, to justify suspension of the proceedings during the course of a trial, some fact or circumstance must present itself to the judge as a reasonable basis for doubt as to defendant’s sanity. People v. DeSimone, 28 Ill2d 72, 190 NE2d 831; Brown v. People, 8 Ill2d 540, 134 NE2d 760. The type of conduct on the part of a defendant, which would require a judge to intervene for the purpose of conducting a competency hearing, may be determined by reference to the statute, which provides:

For the purpose of this Article, “incompetent” means a person charged with an offense who is unable because of a physical or mental condition:
(a) To understand the nature and purpose of the proceedings against him; or
(b) To assist in his defense; ... Ill Rev Stats (1963), c 38, § 104-1.

To bring himself within the terms of this statute, defendant points to several examples of his own conduct. First, at the time of the incident in question, defendant had just been released from a mental hospital. There is no evidence, however, that he had ever been declared incompetent. The testimony of Flossie Gaither was that he had signed himself into the hospital, and the testimony of Sheppard was that defendant had told him of having been turned out of the hospital on the night before the fire. Since there was no proof of insanity at the time defendant was in the mental hospital, however, we cannot now presume that he was insane, at the trial. See, generally, People v. Maynard, 347 Ill 422, 179 NE 833; People v. Burks, 80 Ill App2d 324, 224 NE2d 668.

Defendant also points to the dialogue with the court in chambers and to the testimony of Officer Reynolds pertaining to defendant’s conduct while in custody at the police station. (Defendant, in the lockup, had removed his shirt and jacket and set them on fire, claiming that he would burn the place down.) To support the contention that this conduct was sufficiently abnormal to raise a bona fide doubt of defendant’s sanity at trial, he cites Pate v. Robinson, 383 US 375, and People v. Bender, 27 Ill2d 173, 188 NE2d 682.

While the principles declared in those cases are, of course, controlling of this court’s decisions, the cases themselves do not help defendant’s position, as they are distinguishable on the facts.

Under the test established by Ill Rev Stats (1963), c 38, § 104—1, the trial court has discretion to order a competency hearing if the facts and circumstances raise a bona fide doubt as to the defendant’s sanity. People v. Milani, 34 Ill2d 524, 216 NE2d 816; People v. Milligan, 28 Ill2d 203, 190 NE2d 753; People v. Baker, 26 Ill2d 484, 187 NE2d 227. Here, defendant entered a plea of not guilty, testified on his own behalf, and presented a defense. There is evidence that defendant had signed himself into a mental hospital, and there is also evidence that he had done so to escape prosecution for anticipated criminal acts. No question as to his competency was raised at the trial. The trial judge had ample opportunity to observe defendant during the course of the trial. Further, in our opinion, there was no evidence that raised a bona fide and reasonable doubt about defendant’s ability to understand the nature of the proceedings against him, and to assist in his defense. The trial court did not abuse its discretion in not conducting a competency hearing.

(2) Defendant next claims that the indictment is invalid because it does not properly identify the owner of the premises. The indictment states that “Thomas Gaither committed the offense of arson in that he, by means of fire, knowingly damaged the building of Flossie Gaither, lessee, . . . The testimony of Flossie Gaither revealed that she rented her apartment from Shavin. Defendant’s contention of indictment insufficiency stems from the fact that Mrs. Gaither is neither owner nor lessee of the entire building, but is merely a lessee of one of eighteen apartments in the building.

The purpose of an indictment or any formal charge is to notify the accused of the exact charge against him so that he may prepare his defense accordingly. People v. Johnson, 79 Ill App2d 226, 223 NE2d 860; People v. Addison, 75 Ill App2d 358, 220 NE2d 511; People v. Merrill, 76 Ill App2d 82, 221 NE2d 145; People v. Bonner, 37 Ill2d 553, 229 NE2d 527.

The crime of arson, HI Rev Stats (1963), c 38, § 20-1 (a), is defined as follows:

A person commits arson when by means of fire or explosive, he knowingly damages any building of another without his consent.

HI Rev Stats (1963), c 38, § 20-1 states further:

A building or property “of another” means a building or property in which a person other than the offender has an interest which the offender has no authority to defeat or impair, even though the offender may also have an interest in the building or property.

As holder of a leasehold interest, Mrs. Gaither possesses an interest protected by the statute, and the language of the indictment is therefore sufficient.

(3) The next contention of defendant is that it was reversible error for the trial court to refuse to give the following instruction:

The court instructs the jury that the alleged verbal admissions made by the defendant to the witnesses must be regarded with caution.

For this proposition, defendant cites Marzen v. People, 173 Ill 43, 50 NE 249; People v. Rischo, 262 Ill 596, 105 NE 8; and People v. Christocakos, 357 Ill 599, 192 NE 677. We do not consider these cases to be in point.

It is our conclusion that the trial court was correct in refusing the tendered instruction, since it calls attention to a particular portion of the evidence. People v. Sledge, 71 Ill App2d 285, 218 NE2d 845; Geohegan v. Union El. R. Co., 266 Ill 482, 107 NE 786. Also, since defendant claimed in his testimony that he had not made admissions to the state’s witnesses, that, too, presented a question of fact for the jury, whereas the refused instruction improperly assumes that defendant had made the statements and leaves to the jury only the question of their nature and the weight which should be given to them. People v. Morris, 9 Ill2d 359, 363, 137 NE2d 840. See, also, People v. Payne, 77 Ill App2d 55, 61, 221 NE2d 778; People v. Sledge, 71 Ill App2d 285, 290, 218 NE2d 845; People v. Wade, 71 Ill App2d 202, 211, 217 NE2d 239.

(4) Finally, defendant contends that he was not proven guilty beyond a reasonable doubt, the crux of his argument being that there was insufficient evidence to prove him criminally responsible for the act. Going one step farther, defendant contends that the evidence showed that the fire had been caused by accident, and that there was thus no showing that it had been the wilful or knowing act of defendant. It is our belief, however, that there was sufficient testimony, if believed, to prove defendant guilty beyond a reasonable doubt. And the matter of credibility, under these circumstances, was for the jury.

Decision

The judgment and sentence of the Circuit Court are affirmed.

Affirmed.

McCORMICK, P. J. and DRUCKER, J., concur.


source: Caselaw Access Project

author: MR. PRESIDING JUSTICE McCORMICK

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Hampton, Defendant-Appellant.
    Gen. No. 51,841.
    First District, Fourth Division.
    November 27, 1968.
    Rehearing denied December 18, 1968.

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

      John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Howard Levine, Assistant State’s Attorneys, of counsel), for appellee.
   MR. PRESIDING JUSTICE McCORMICK

delivered the opinion of the court.

Offense Charged : Armed robbery.

Judgment: After waiving his right to a jury trial, the defendant was convicted of robbery at a bench trial and sentenced to serve not less than eleven nor more than fifteen years in the State penitentiary. The court entered a finding of guilty as to robbery only, rather than armed robbery, because of the State’s failure to prove, as alleged, that the defendant had in fact used a dangerous weapon in the commission of the crime.

Contentions on Appeal:

1) The trial court’s failure to conduct a competency hearing after a bona fide doubt of competency had been raised at trial amounted to a violation of due process of law contrary to the Constitutions of the United States and of the State of Illinois, and thereby deprived the defendant of his right to a fair trial.
2) The defendant was not proven guilty beyond a reasonable doubt.
3) The sentence imposed is more severe than is warranted by the record and should be modified accordingly.

Evidence. Testimony of State’s witnesses.

On December 5, 1965, Hudson Montgomery, according to his testimony, was working a late shift for the Yellow Cab Company. At about 12:30 a. m., as he was driving past the 2600 block of West Madison Street, his cab was flagged by the defendant, who entered and directed him to drive to the intersection of Kedzie and Franklin. The witness said that he was tired and wanted to check in, but the defendant said, “I may be drunk, and I want to go home,” so the witness reluctantly agreed to drive him to his destination. Arriving at Kedzie and Franklin Boulevard, the defendant said he had really wanted to go to Elm and Franklin Streets, and persuaded the driver to take him there, directing him through a series of turns into an unfamiliar section of the city.

The witness further testified that the defendant then grabbed him around the neck, put an object against his head and said, “Give me your money.” (At the trial, however, the witness was unable to identify the object.) The defendant then took about $19 and some change from the witness and told him to lie down on the front seat, which he did. The defendant left with the money and began running, and the witness started to follow him. A police car appeared and the witness told the officers what had happened, after which the officers followed the defendant into a dead-end alley and apprehended him.

Officer Robert Dougherty testified that he and his partner, William Alexander, were on patrol near 230 Elm Street when they saw a cab stopped in the middle of the street and saw the driver chasing the defendant. When they approached the driver he told them he had been robbed, and they began following the defendant whom they saw walking on Elm Street. When the defendant saw the police car following him he darted around a corner and began running down an alley where, after a brief scuffle, he was arrested, taken back to the police car and searched. In one pocket was found $19.50 (eighteen $1 bills and six quarters), and in another forty cents. The $19.50 was admitted into evidence at trial. After arresting the defendant the officers unsuccessfully searched the area for a weapon, during which time the defendant attempted to leave the police car and had to be subdued.

Testimony of defense witnesses.

The defendant, John Hampton, testified that on December 5, 1965, at 12:30 a. m., he flagged a cab at Madison and Oakley Streets, entered and directed the driver to take him to Elm and Franklin, meaning Elm and Franklin Streets, but the driver apparently misunderstood him and went to Kedzie and .Franklin Boulevard. The defendant stated that after a brief argument he persuaded the cab driver to take him to the correct destination—Elm and Franklin Streets—where his brother lived. Upon arriving there he paid the driver $4.50, using a $5 bill, but left no tip. He stated that when he left the cab the driver followed him, waved a gun, and told him to stop or he would shoot. The defendant denied taking any money from the driver and further denied that he was running up the alley when the police arrived, or that he was attempting to escape from them. Instead, he said that when he saw no lights on in his brother’s home he started walking through the alley to his own home which was only a short distance away.

The defendant further testified that he had previously been convicted three times on guilty pleas, and that he was on parole at the time of his arrest.

Sally Hampton, mother of the defendant, testified that he had lived with her since being paroled, and had been working regularly. She stated that she had another son living at Franklin and Elm Streets in Chicago.

After the defendant had been found guilty, the State in aggravation introduced evidence establishing that in May of 1946, the defendant had been convicted of assault to rape and was sentenced to a term of one year to 18 months; that in January of 1952, the defendant pleaded guilty to a charge of armed robbery and was sentenced to two to five years in the penitentiary; that in March 1956, after pleading guilty, he was convicted of armed robbery and sentenced to serve ten to thirty years in the penitentiary with a concurrent sentence of ten to twenty years, also for armed robbery; and that at the time of his arrest he had been released from the penitentiary on parole from this last offense.

In mitigation counsel for defendant said he had nothing to offer, but remarked, “I further ask, Your Honor, if he does see fit to incarcerate the defendant, to try and get a better examination and possibly some better determination of the man’s mental abilities.” When the court asked if he was raising the point of incompetency, he said, “No, I am not. But I am just saying at some future time it should be gone into thoroughly. I can’t understand him. He can understand me, Judge, he knows what the charge is, he insists he is not guilty. I believe him on that. But I am not raising the question of his competency at this time.”

Opinion.

1) The defendant first contends that the trial court’s failure to conduct a competency hearing after a bona fide doubt of competency had been raised at trial amounted to a violation of due process of law contrary to the Constitutions of the United States and of the State of Illinois, and thereby deprived the defendant of his right to a fair trial.

On May 10, 1966, defendant was tried in the instant case. Prior to the trial the court had ordered an examination of the defendant by Dr. William H. Haines of the Behavior Clinic of the Circuit Court. The report filed in the cause found that the defendant had “Sociopathic personality disturbance. He knows the nature of the charge and is able to cooperate with his counsel.” In that report Dr. Haines further stated that in 1950 the defendant had been examined by him on several occasions, at which time the defendant had been confined as a criminal sexual psychopath; that defendant had been examined by the Behavior Clinic again in 1952, and that a copy of the report submitted to the court at that time was enclosed. Dr. Haines stated that in 1950 he was of the opinion that the defendant was improperly classified as a sexual psychopath, and that in 1952 he stated with reference to the defendant: “[He has] inadequate personality make-up. He knows the nature of the charge and is able to cooperate with his counsel.”

In People v. Bender, 27 Ill2d 173, 188 NE2d 682, it is said at 175:

“. . . where, before or during the trial, facts are brought to the attention of the court, either by suggestion of counsel or the State, or by the court’s own observation, which raise a bona fide doubt of the defendant’s present sanity, a duty devolves upon the court to cause a sanity hearing to be held, and this is true even if counsel does not raise or argue the point in the trial court. People v. Burson, 11 Ill2d 360.”

Again, in People v. Pridgen, 37 Ill2d 295, 226 NE2d 598, the court said at 298:

“Nevertheless, it is within the discretion of the trial judge to decide whether the facts and circumstances raise a bona fide doubt of the defendant’s sanity so as to require a hearing. People v. Milligan, 28 Ill2d 203; People v. Baker, 26 Ill2d 484.”

The examination conducted by the Behavior Clinic immediately prior to trial indicated that the defendant was competent to stand trial. In the trial of the case defendant’s testimony covered 50 pages of the record; it reflects no evidence of incompetency, nor is there found any irrational behavior on the part of the defendant. In fact, one day after he was sentenced, the defendant wrote a letter asking that notice of appeal be filed in his case. The case of People v. Sims, 34 Ill2d 206, 215 NE2d 201, is analogous to the one at bar. In that case the defendant was examined by the Behavior Clinic and found to be competent to stand trial. The Supreme Court stated at page 209:

“We have often stated that if before or during trial, facts are brought to the attention of the court which raise a bona fide doubt as to defendant’s capacity to stand trial, the judge must order a sanity hearing. [Citing cases.] The test of mental competence is the ability of the accused to understand the nature of the proceedings against him and to adequately aid in the preparation of his defense. (People v. Olmstead, 32 Ill2d 306.) The second Behavior Clinic report states that defendant was malingering. This conclusion is further borne out by a reading of his testimony at trial where he testified in a clear, lucid manner and had no difficulty in answering questions by respective counsel. His testimony also showed him to be well oriented and well aware of the nature of the proceedings against him. Actually there was no denial of a hearing with respect to mental capacity as no request for such a hearing was made. Considering the results of the two Behavior Clinic reports and after examining the record, we conclude that the trial judge did not abuse his discretion.”

This statement is directly applicable to the instant case. We too have carefully considered the record, particularly that portion covering the defendant’s testimony and the report of the Behavior Clinic, and have concluded that the trial judge, under the circumstances present here, did not abuse his discretion in not ordering a competency hearing.

Furthermore, although there may be extraordinary circumstances under which a duty devolves upon the court to conduct a competency hearing, notwithstanding counsel’s failure to argue the point at trial, still it is worthy of note that in the instant case not only was no request for such a hearing ever made, but to the contrary, counsel for the defendant, when asked by the court if he was raising the point of defendant’s incompetency, specifically stated, “No, I am not.”

2) The defendant next contends that the State failed to prove him guilty beyond a reasonable doubt. In support of that contention he argues that the testimony of the complaining witness is incredible and should not be believed; that further, it is inherently unreasonable to believe that defendant would have the temerity to commit a crime in his own immediate neighborhood. We find it unnecessary to repeat the testimony of the complaining witness, which has already been presented in detail in this opinion. It is a well-settled rule of law that the credibility of the witnesses is a question for the trier of fact who saw and heard the witnesses, and that his determination will not lightly be disturbed on review. People v. White, 63 Ill App2d 105, 211 NE2d 9; People v. Cox, 22 Ill2d 534, 177 NE2d 211.

This rule is particularly applicable where, as here, the testimony in question has been corroborated by other evidence at trial. The testimony of the complaining witness is corroborated by that of Officer Dougherty, who testified that when the defendant saw his police car following him he darted around the corner, began running down an alley, and after being apprehended again attempted to escape and had to be subdued. Although the attempted flight of an accused does not of itself raise a presumption of his guilt, still it is a circumstance tending to prove guilt. People v. Rappaport, 362 Ill 462, 200 NE 165. See also People v. Davis, 14 Ill2d 196, 151 NE2d 308; People v. Neiman, 90 Ill App 2d 337, 232 NE2d 805.

Defendant also suggests that it is unreasonable to believe he would commit a crime in his own immediate neighborhood. That contention is without merit. The precise question has been considered and answered in People v. Jelks, 92 Ill App2d 374, 235 NE2d 339 in which the court stated that the queston was a matter of credibility for the court to resolve after considering all the circumstances in the case. We find nothing incredible or improbable about the circumstances present in the instant case. After a careful consideration of the record we cannot say that the trial judge was unjustified in his evaluation of the evidence and in finding the defendant guilty beyond a reasonable doubt.

3) The defendant argues that the sentence imposed was too severe, and that under the facts a less severe minimum sentence would be adequate punishment. The applicable statute provides for punishment of a term from one to twenty years. (Ill Rev Stats 1965, c 38, § 18-1.) Under the circumstances in the instant case, and in consideration of defendant’s prior record, we conclude that the sentence was not improper. People v. Taylor, 33 Ill2d 417, 424, 211 NE2d 673.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER and ENGLISH, JJ., concur.

       Ill Rev Stats 1965, c 38, § 18-1.
      Robbery.] (a) A person commits robbery when he takes property from the person or presence of another by the use of force or by threatening the imminent use of force.


author: MR. JUSTICE SEIDENFELD

text:
    August Goeller and Helene A. Goeller, His Wife, Plaintiffs-Appellees, v. City of Chicago, a Municipal Corporation, Defendant-Appellant.
    Gen. No. 52,117.
    First District.
    December 2, 1968.

      Raymond F. Simon, Corporation Counsel, of Chicago (Marvin E. Aspen and Howard C. Goldman, Assistant Corporation Counsel, of counsel), for appellant.
    Maurice J. Nathanson, of Chicago (Paul Peter Black, of counsel), for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant, City of Chicago, appeals from a Declaratory Judgment which ordered that its zoning ordinance as it applied to plaintiffs’ property be declared null and void and held that the plaintiffs could use the premises to construct an apartment building subject to the R4 provisions of the Chicago Zoning Ordinance, with five dwelling units and five parking places in accordance with plans introduced in the case.

The validity of the provisions of the City’s B4-1 classification is put in issue as applied to plaintiffs’ property:

“CHICAGO ZONING ORDINANCE—
“8.3-4 PERMITTED USES—B4-1 to B4-5 RESTRICTED SERVICE DISTRICTS.
“A. Uses permitted in the B4-1 to B4-5 Districts inclusive are subject to the following conditions:
“(1) Dwelling units and lodging rooms other than those in a transient hotel or motel, are not permitted below the second floor unless otherwise set forth or superseded hereinafter. (Amend 7-10-61 Coun J page 5239.)
“(2) Business establishments are restricted to a maximum gross floor area of 18,750 square feet each, exclusive of any floor area devoted to off-street parking or loading facilities. (Amend 4-27-60, Coun J page 2501.)
“8.4-4 SPECIAL USES—B4-1 to B4-5 RESTRICTED SERVICE DISTRICTS.
“(3) Dwelling units may be established on the ground floor in B4-1 to B4-5 Districts only, subject to the side yard and rear yard provisions of the corresponding residential district; except for improved property, side yard and rear yard provisions may be otherwise permitted, subject to the provisions of chapter 66 of the Municipal Code. (Amend 7-10-61 Coun J page 5238.)
“8.6-1 MINIMUM LOT AREA—Bl-1 to Bl-5 LOCAL RETAIL DISTRICTS.
“(1) In a Bl-1 District, there shall be provided not less than 2,500 square feet of lot area per dwelling unit, except in Bl-1 District which fronts on a Section Line Street, Half-Section Line Street, or the following Major Diagonal Streets: Archer Avenue, Clark Street, Clybourn Avenue, Columbus Avenue, Elston Avenue, Grand Avenue, Higgins Avenue, Lincoln Avenue, Milwaukee Avenue, Northwest Highway, Ogden Avenue, Ridge Avenue, South Chicago Avenue, and Vincennes Avenue, there shall be provided not less than 1,650 square feet of lot area per dwelling unit. For efficiency units however, there shall be provided not less than 1,650 square feet of lot area per unit, and for lodging rooms there shall be provided not less than 1,250 square feet of lot area per room. (Amend 7-10-61 Coun J page 5239.)
“8.6-4 MINIMUM LOT AREA—B4-1 to B4-5 RESTRICTED SERVICE DISTRICTS.
“(1) In a B4-1 District, the minimum requirements for lot area per dwelling unit shall be the same as in a Bl-1 District.”

The plaintiffs’ property, a vacant lot, is located at the northeast corner of West Addison Street and North Oketo Avenue in the City of Chicago, Illinois. This real estate has a frontage of 36 ft. 2%" on West Addison Street and a depth on North Oketo Avenue of approximately 125 ft. to a 16 ft. public alley with a total area of approximately 4,500 sq. ft.

West Addison Street is a half section line street within the City of Chicago. It is an active thoroughfare which runs from Lake Michigan on the east to the city limits on the west. It is a mixed use street, containiing business enterprises, apartment buildings, and family dwellings. In the business areas the buildings contain retail type merchandising stores and apartments on the ground floor and apartments above, so that the street has a prime character of being a multiple dwelling street intermingled with business.

The B4-1 district which contains the plaintiffs’ property is encompassed by R-2 single-family residences. The B4—1 district runs east from Osceola Avenue to Odell Avenue on an alley just south of Addison and north of Cornelia, north on Odell to an alley just north of Addison and south of Waveland Avenue. West on that alley from Odell past Oketo Avenue to an alley just into the OketoOsceola block. South on that alley to Addison and then west on Addison to Osceola. Finally it runs south on Osceola to the alley south of Addison and north of Cornelia.

Surrounded by single-family residences, the situation on Addison Avenue through the B4r-1 district is as follows : Between Harlem Avenue and Osceola on the north side of Addison proceeding west there is a Gulf Gasoline Station, followed by an automobile repair shop to Oconto. Between Oconto and Octavia both corners are occupied by two single-family residences with six residential structures between Octavia and Odell (five single-family residences and one two-family residence). Between Odell and Oketo, the frontage where the subject property is located, there is a single-family home on the northwest corner of Odell and Addison. Proceeding west, there is a grocery store with a residence in the rear and a residence on the second floor, two single-family homes. Between Oketo and Osceola on the north side of the street there is a grocery store, a real estate office with a residence in the rear, five single-family homes and a five-flat building on the corner of Osceola and West Addison Street.

The five-family unit building on the northeast corner of Osceola and Addison is a nonconforming use but was built before the 1957 amendment and is in compliance with the 1942 ordinance which immediately preceded the 1957 amendment.

This building is one block west of the subject property. There are similar buildings on the northwest and southwest corners at this same intersection.

On the southwest corner of Addison and Ottawa Avenues, five blocks west of plaintiffs’ property, are a group of buildings similar to that proposed by the plaintiffs.

There is an R-4 district on the north side of Addison between Ottawa and Oriole, five blocks west of the plaintiffs’ property.

There are shopping centers four blocks and eight blocks away from the B4-1 zone. The buildings in the B4-1 zone comply almost uniformly with the B4-1 requirements, but business is poor in this area and no significant development businesswise has taken place in the zone in at least the last ten years.

Testimony evidenced that the B4-1 business use was impractical because the plaintiffs could not comply with the 100% B4-1 off-street parking requirements. Plaintiffs could comply with the R-4 75% off-street parking requirements. Testimony given valued the plaintiffs’ property at $11,000 to $14,000 as a B4-1 business use and $18,000 to $20,000 for a five-apartment use. There was no evidence of the value of the 3-apartment special use and variation granted to the plaintiffs.

Defendants presented testimony that a B4-1 use was the highest and best use both from the owners’ economical development standpoint and from a general planning standpoint. Plaintiffs presented testimony that the best and highest use was for a five-apartment dwelling.

In 1958, one year after the comprehensive amendment, plaintiffs purchased their property for around $12,000. On July 13, 1965 the plaintiffs were granted a special use (to build a 3-apartment building with an apartment on the first floor) and a variation (permission to build 3 apartments although their 4,500 sq. ft. was under the minimum requirement of 4,950 sq. ft. or 1,650 sq. ft. per unit).

On December 29, 1965, the plaintiffs initiated this action for a declaratory judgment alleging that the zoning ordinance was confiscatory and that the highest and best use was for a five-apartment building.

The City urges that the plaintiffs have failed to overcome the presumption of the validity of the zoning ordinance, in that: (1) the proof offered by plaintiffs revealed that the square block within which the subject property is located, is completely occupied by either single-family or B4-1 uses, and the general neighborhood is predominantly devoted to either single-family or B4-1 uses; and (2) no hardship to the plaintiffs was proved inasmuch as the owners, who had purchased with knowledge of the classification, had previously sought and secured not only a special use under the zoning ordinance to construct a dwelling unit on the ground floor which would have permitted the erection of a three-apartment building, but also a variation of certain lot area regulations and no proof was offered to establish the difference in value between the property with the right to build as granted by the zoning board and the value testified to for a five-apartment building site; and (3) the presumption of the validity of the density restriction of the ordinance was not overcome by any evidence, and the court incorrectly considered only uses rather than intensity of use.

Plaintiffs’ theory throughout has been that the only issue involved is whether the presumption of the validity of the B4-1 ordinance requiring a business use on the first floor has been overcome. They argue that the City’s classification ignores the trend of development along West Addison Street, which has shown no business development for ten years and construction of or conversion to multiple-apartment uses. They claim hardship in that they cannot develop their property for business use because they cannot furnish off-street parking in the square foot area, and in that testimony in the record shows a value for the B4-1 use of $11,000, but for the highest and best use as a five-apartment building under B4, of $20,000. Finally they argue that the density provisions of the ordinance should have no application “when there is both two-flat and apartment zoning on Addison Street.”

The general legal principles applicable to zoning cases have been well established and no purpose is seen in repeating them here. Each case must determine the applicability of these principles in balancing the factors of the character of the neighborhood, the use to which nearby property is put, the extent to which property values are diminished by the restrictions imposed by the ordinance, and the gain to the public compared with the hardship imposed on the complaining property owners against the presumption of the proper exercise of legislative discretion. See, e. g., LaSalle Nat. Bank of Chicago v. City of Chicago, 5 Ill2d 344, 350-351, 125 NE2d 609 (1955); LaSalle Nat. Bank v. County of Cook, 12 Ill2d 40, 46,145 NE2d 65 (1957).

The degree of hardship is reduced where a purchaser buys subject to property restrictions because the effect of those restrictions is reflected in his purchase price. Such is the situation here. Furthermore, the hardship to the plaintiffs is somewhat conjectural on this record since the only proof of plaintiffs on this issue showed that the property would be worth $20,000 for the proposed use and $11,000 under the business use of the first floor. However, the proof ignored any comparison of the permitted special use and variation granted as against the five-apartment use proposed with the result that the evidence of existing hardship is incomplete and insufficient. Cosmopolitan Nat. Bank of Chicago v. Chicago, 22 Ill2d 367, 374-375, 16 NE2d 795 (1961); Mutz v. Village of Villa Park, 83 Ill App2d 1, 10, 226 NE2d 644 (1967); Lapkus Builders, Inc. v. Chicago, 30 Ill2d 304, 310, 196 NE2d 682 (1964). (It is to be emphasized that the fact plaintiffs successfully secured a special use and variation in no way inhibits their right to challenge the validity of the ordinance.)

On the question of whether the City properly took into account the change in use and development in the area in enacting its zoning ordinance, we, in effect, must consider whether the zoning ordinance retained a meaningful relationship to the needs of the neighborhood and the comprehensive plan of the City.

We consider first the use restriction. Although many factors are considered important (see Locker v. City of McHenry, 89 Ill App2d 457, 463, 231 NE2d 685 (1967); Jacobson v. City of Evanston, 10 Ill2d 61, 70, 139 NE2d 205 (1957), the primary factor to be considered is whether or not the property is zoned in conformity with the surrounding existing uses and whether those uses are uniform and established. Viggiano v. City of Elmhurst, 67 Ill App2d 140, 142, 213 NE2d 571 (1966). Or stated in terms of neighborhood character, the question is whether there has been a substantial changing trend in the development of the zoned area. Scott v. City of Springfield, 83 Ill App2d 31, 39, 226 NE2d 57 (1967).

The facts demonstrate that little B4-1 business development has taken place and that, in fact, former first-floor businesses have been changed into residential apartments. Legal parking for businesses along the Addison Street area has become an acute problem with evidence that what business has survived the competition of nearby shopping centers must rely on illegal parking for their customers.

The evidence indicates that no new business has developed in this area since the 1957 ordinance, but rather that if any trend at all exists, it has been toward conformity with the neighboring area which is low intensity residential.

It is evident from both the general planning view of the City as well as the character of the neighborhood in particular that the first-floor business use restriction has become obsolete.

We do not believe, however, that the case may be disposed on this issue. Considering the ordinance as a whole, it seems apparent that the City drafted into it a recognition of a specific special use of the ground floor for dwelling rather than business in providing:

“(3) Dwelling units may be established on the ground floor in B4-1 to B4-5 Districts only, subject to the side yard and rear yard provisions of the corresponding residential district. . . .” (Chicago Zoning Ordinance, section 8.4-4 Special Uses, supra.)

Thereby the City would seem to have provided a flexible approach which would permit a nonbusiness use on the ground floor when the public need for such use would so warrant. The Zoning Board, in fact, so applied its restriction in granting the special use and variation to the plaintiffs here.

While plaintiffs argue that the City’s action in granting the special use only exemplifies its recognition of the obsolescence of the ground-floor business classification, we cannot give it that narrow interpretation. We are of the opinion that the ordinance, as drafted, more closely supports the City’s position that the 1957 ordinance introduced a new concept predicated on intensity of use of lot area rather than on former rigid concepts of uses or types of structures. Cosmopolitan Nat. Bank of Chicago v. Chicago (supra) at pages 369-370. Density restrictions are presumptively reasonably related to the health, welfare and morals of the community. Lapkus Builders, Inc. v. Chicago (supra).

Further reference to the density restrictions in effect throughout the area supports the view that a comprehensive plan with reasonable gradations of intensity of use from district to district was imposed. In the large surrounding R2 area, a maximum of 5,000 square feet of lot area per unit was provided, with exceptions to a minimum of 3,750 square feet. In the bordering B4-1 district a density of 1,650 square feet of lot area per unit is provided. The effect of the judgment of the trial court is to permit a building with only 900 square feet per unit, less than one-fourth of that in the surrounding R2 area.

As mentioned above, the plaintiffs purchased the property subject to the existing restrictions. While a purchaser of property is not precluded from challenging a zoning restriction existing at the time of his purchase, the existence of such a restriction is a factor to be considered in determining the validity of the restriction as applied to the property in question, particularly inasmuch as other adjacent property owners may have purchased their property relying upon the restriction and are entitled to protection in such reliance. Vedovell v. City of Northlake, 22 Ill2d 611, 614, 177 NE2d 124 (1961).

Plaintiffs’ argument that the issue of density is not applicable to the case because the property in question does not take its character from the R-2 districts, but rather from the Addison Street frontage, and that density control is not intended when there is both two-flat and multiple zoning on Addison Street is not persuasive under the facts in this case. No proof was adduced to show lack of conformity in the district to the intensity of use restriction. It is reasonable to assume that the municipal authorities intended to maintain the lesser density of the surrounding R-2 single-family district area when they zoned the adjacent area containing the subject property B4-1 (it is presumptively so), and in light of the lack of proof that such districting is not reasonably related to the contemporary conditions of the neighborhood, the presumption that the density ordinance is valid should prevail.

We are of the opinion that the trial court erred in entering the judgment for the plaintiffs. The presumption of the validity of the zoning ordinance was not overcome under the facts and circumstances of this case, and we, therefore, reverse the judgment below.

Reversed.

ABRAHAMSON, P. J. and DAVIS, J., concur.


author: MORAN, J.

text:
    Sophie Grebe, Plaintiff-Appellee, v. Vacek & Company, Inc., a Corporation, Defendant-Appellant.
    Gen. No. 52,151.
    First District.
    December 2, 1968.

      Philip S. Aimen, of Chicago, for appellant.
    Michael J. Cudahy, of Elmwood Park (Morris Solomon, of Chicago, of counsel), for appellee.
   MORAN, J.

Defendant appeals from a decree of the Chancery Division of the Circuit Court of Cook County, Illinois.

Plaintiff filed a complaint on August 11, 1964, seeking specific performance of an alleged oral agreement made by and between plaintiff and defendant to sell, transfer and assign to the plaintiff a beneficial interest in a certain land trust; or, in the alternative, to recover $5,000 alleged paid to defendant by plaintiff as a down payment for the purchase of said beneficial interest. The cause was referred to a Master-In-Chancery who heard the evidence and the testimony of the plaintiff who was the only witness to testify in the proceedings.

Plaintiff testified that on June 26, 1963, one Rusin, who was the employer of plaintiff’s brother-in-law, John Grebe, while accompanied by Grebe, proposed to plaintiff that if she would put up $5,000 so that John Grebe could purchase an apartment building, plaintiff would receive some interest in a land trust in which this building was a part, which interest she would retain as security for her money until the property could be refinanced, at which time her interests in the land trust would be extinguished and she would get back her $5,000 plus a $1,000 commission; that Rusin told her that he was a real estate broker for the defendant, and that plaintiff should make her check payable to the defendant who was the owner of the apartment building. Plaintiff drew a check for $5,000 payable to defendant, Yacek & Company, which was cashed.

She further testified that she did not see Rusin again until a couple of weeks later, when he told her that he was no longer involved in the deal. In July of 1968, plaintiff visited the defendant and talked to a Mr. Kezon, President of Vacek & Company, who told her that the mortgages on the apartment building could not be refinanced because of John Grebe’s poor credit rating, but that plaintiff could take over the property if she put up an additional $10,000. Plaintiff told Kezon that she could not put up more money and that she was interested only in getting her money back. Kezon never told plaintiff he would assign an interest in the trust to her nor did he offer to return the money, nor did he tell her that Rusin was not acting for the defendant. Plaintiff never saw Kezon again after the July meeting.

At the close of the plaintiff’s case, defendants moved to dismiss the complaint for want of equity and to strike those portions of the plaintiff’s testimony which pertained to her conversations with Frank Rusin. The master found that the plaintiff made out a prima facie case and recommended that said motions be denied and that the cause be re-referred for the purpose of hearing the testimony of the defendants and returned his Master’s Report to the court together with defendant’s objections which were made exceptions thereto.

The court overruled defendant’s exceptions and re-referred said cause to the master for further evidence. Defendant elected to submit plaintiff’s part of the case to the court on the record as it then stood and not submit any evidence, which election was reported to the court in the Supplemental Master’s Report.

On January 13, 1967, the court entered judgment in favor of the plaintiff and against the defendant in the sum of $6,000 and costs, from which judgment this appeal is taken.

The defendant first contends that the court erred in denying defendant’s motion to strike plaintiff’s testimony regarding her out-of-court conversations with Rusin, which it contends were offered solely for the purpose of proving the truth of the matters asserted therein and, as such, was plainly hearsay testimony and was incompetent and inadmissible in evidence. We believe that these conversations were admissible under the res gestae rule. The term “res gestae” refers to those circumstances which are admissible when illustrative of an act. “Whenever it becomes important to show, upon the trial of a cause, the occurrence of any fact or event, it is competent and proper also to show any accompanying act, declaration or exclamation which relates to or is explanatory of such fact or event.” People v. Mulvaney, 286 Ill 114, at 117, 121 NE 229; O’Donnell v. Travelers Ins. Co., 332 Ill App 222, 74 NE2d 735. When an out-of-court statement assists in constituting the transaction, the statement is competent because it does not depend for its effect on the credit or credibility of the declarant, but derives its probative force from its close connection with the occurrence which it accompanies and tends to explain, and is admissible as original evidence and not objectionable as hearsay. Dunn v. Dunn, 241 Ill App 11. In the case of Lambe v. Manning, 171 Ill 612, 49 NE 509, the court considered the question of whether oral evidence could be admitted to explain a deed. The scrivener who drew the deed was called as a witness to state what the grantor had said in regard to the grantees under the deed and as to the reason why he directed an additional writing to be fastened to the deed. The court said that the declarations were made at the time of the transaction, were explanatory of the transaction, and were admissible as a part of the res gestae. In the present case, plaintiff testified that on June 26, 1963, she made a check payable to defendant and delivered said check to Rusin. She testified to her conversations with Rusin so as to explain why the check was written and made payable to defendant. These declarations relate to the delivery of the check and are explanatory of this act. Therefore, Rusin’s statements were made at the time of the transaction, were explanatory of this transaction, and were admissible as a part of the res gestae—delivery of the check to Rusin.

When words play a part along with conduct in determining the total significance to be attached to an act, the uttered words are a verbal part of the act and admissible in evidence to explain the act. Without the words the act may be unexplainable. Therefore, the words are admissible in evidence to explain the significance of the act. Plaintiff testified that Rusin told her that Vacek & Company was the owner of the building and that Rusin was a real estate broker for defendant. The conversation took place on June 26, 1963, when Rusin approached plaintiff about the proposed deal. Their conversations were admissible to explain why the plaintiff made out a check for $5,000 payable to defendant. Her act in making out the check for $5,000 would have no significance in and of itself unless she were permitted to explain why she made the check out to defendant. Rusin’s statement is admissible not to show that what Rusin said was true, but only that he said those things which resulted in her making the check payable to defendant. This is what is known as the res gestae or verbal act doctrine and is fully explained in Volume VI of Wigmore, 3rd Edition, paragraphs 1766 through 1786.

The defendant also contends that plaintiff cannot prove that Rusin was an agent for the defendant by what Rusin said and did, and cites Sommerio v. Prudential Ins. Co. of America, 289 Ill App 520, 7 NE2d 631, for the rule that a supposed agent’s statements and acts are incompetent by themselves to prove an agency relationship. We do not disagree with this statement, but an alleged agent’s statements are relevant when it is shown that the alleged principal has consented or ratified such statements. The power of an agent can be proved only by tracing it to the source of his alleged authority, his principal. Sommerio v. Prudential, supra. In Wohl v. Yelen, 22 Ill App2d 455, at p 459, 161 NE2d 339, the court said:

“An agency cannot be proved by the statements of the purported agent that he was the agent; but the conduct of the purported agent, what he did with respect to the subject matter of the transaction, his assumption of authority, and his actions in relation to his supposed principal, are all circumstances which may be put in evidence.”

The defendant accepted the check payable to itself from the plaintiff. When the plaintiff met with defendant in July of 1963, defendant did nothing to negate plaintiff’s assumption that Rusin was an agent for the defendant. In fact, plaintiff testified under cross-examination that Kezon had a heated telephone conversation with Rusin while plaintiff was talking with defendant and that he told her she could buy the apartment building if she would put up an additional $10,000. Therefore, it was reasonable for the court to infer from these actions of the defendant that he consented to and ratified the statements and acts of Rusin making him an agent of the defendant. In American Car & Foundry Co. v. Industrial Commission, 335 Ill 322, at 329, 167 NE 80, the court said:

“If one, not assuming to act for himself, does an act for or in the name of another upon an assumption of authority to act as an agent of the latter, even though without any precedent whatever, if the person in whose name the act was performed subsequently ratified or adopted what has been done, then the ratification relates back and supplies the original authority to do the act.”

The trial court found in the present case:

“FIRST: That the court has jurisdiction of the parties to this cause and the subject matter hereof.
“SECOND: That the plaintiff, SOPHIE GREBE, did, on or about the 26th day of June, 1963, issue her check in the sum of $5,000.00 payable to the order of Vacek and Company, which check was subsequently endorsed and deposited by Vacek and Company, defendant herein.
“THIRD: That said check was delivered by the plaintiff to one FRANK RUSIN who represented himself to be an agent of said defendant company.
“FOURTH: That the plaintiff was informed by said FRANK RUSIN that she would have an interest in the beneficial interest of a certain land trust with the American National Bank and Trust Company of Chicago, trustee under trust number 17136. That she would retain such interest until such time as certain refinancing arrangements could be made at which time her money, plus commission of $1,000.00 would be paid to her.
“FIFTH: That plaintiff has received neither the return of her $5,000.00 nor said commission of $1,000.00 nor an interest in the trust referred to herein.
“SIXTH: That the plaintiff has presented a prima facie case.
“SEVENTH: That the plaintiff should have recovery for $200.00 Master’s fees paid by her.
“EIGHTH: That by her Complaint filed herein plaintiff has asked for relief in the alternative, to-wit, that plaintiff either have a Decree for Specific Performance or a money judgment against Vacek & Company;
“NOW, THEREFORE, IT IS ORDERED AND DECREED that plaintiff, SOPHIE GREBE, do have and recover of and from defendant, VACEK & COMPANY, a corporation, the sum of $6,200.00, and costs, and that execution issue therefor.”

In Brown v. Zimmerman, 18 Ill2d 94, 163 NE2d 518, our Supreme Court said at page 102:

“Finally, aside from the foregoing disposition of the legal points raised, the determination of this case depends largely upon the facts to be found in the record. In such situations the findings and judgment of the trial court, in chancery and nonjury cases, will not be disturbed by the reviewing court, if there is any evidence in the record to support such findings.”

Examination of the record here shows there was ample evidence to support the trial court’s judgment. We therefore affirm the judgment and decree of the trial court.

Judgment and decree affirmed.

EBERSPACHER and GOLDENHERSH, JJ., concur.


author: CULBERTSON, J.

text:
    Village of Mount Prospect, a Municipal Corporation, Plaintiff-Appellant, v. Emerson J. Malouf, Defendant-Appellee.
    Gen. No. 53,099.
    First District, First Division.
    December 2, 1968.

      Ross, Hardies, O’Keefe, Babcock, McDugald & Parsons, of Chicago (R. Marlin Smith and Robert W. Bartlett, of counsel), for appellant.
    No brief filed for appellee.
   CULBERTSON, J.

Defendant, Emerson J. Malouf, was tried before a magistrate in the Circuit Court of Cook County under a charge of operating a motor vehicle while under the influence of intoxicating liquor in violation of section 18-702 of the Municipal Code of the Village of Mount Prospect. At the close of the village’s case, the trial court directed a verdict for defendant, entered judgment in his favor, and ordered his discharge. The village has appealed and, inasmuch as defendant has failed to appear or to file a brief in this court, we would be justified in reversing the judgment without further discussion. (American Nat. Bank & Trust Co. v. Bergstedt, 90 Ill App2d 381, 234 NE2d 56; Klein v. Priest, 92 Ill App2d 74, 235 NE2d 870.) We are not required to do so, however, and since the issues raised are of great importance to the village and motorists using its streets, we will decide the case on its merits.

Briefly stated, the issues on appeal arise from rulings of the trial court which were substantially as follows: (1) that the State, by the enactment of section 47 of the Uniform Act Regulating Traffic on Highways (Ill Rev Stats 1965, c 95%, par 144), has “preempted the field” of proscribing and punishing the operation of a motor vehicle while under the influence of intoxicating liquor; and (2) that to permit the punishment of defendant under the municipal ordinance could subject him to double jeopardy. These rulings, in turn, raise the question of whether the village has the authority to enact and enforce its ordinance, in light of the concurrent existence of a statute proscribing the same conduct.

No useful purpose can be served by detailing the evidence presented by the village, particularly since the trial court did not base its directed verdict upon matters of evidence. Suffice it to say that we are in accord with the village that a prima facie case was made. There are, however, certain differences between the ordinance and the statute which should be noted, the first being that the ordinance makes it unlawful for a person under the influence of intoxicating liquor to operate a vehicle “within this village,” while section 47 makes the same conduct unlawful when a vehicle is operated “within this State.” They differ also with regard to penalty provisions, the ordinance providing only for a fine of not less than $100 nor more than $500. The statute, on the other hand, provides for imprisonment for not less than 2 days nor more than one year, or a fine of not less than $100 nor more than $1,000, or both fine and imprisonment, and also provides penalties for a second conviction. In addition, the State act requires that the Secretary of State “shall revoke the chauffeur’s or operator’s license of any person convicted under this section.” Ill Rev Stats 1965, c 95%, par 144; see also: par 6-205.

In our opinion the trial court was plainly wrong when it held that the State statute had “preempted the field,” implying thereby that the village lacked the power to pass its ordinance. Municipalities are given express authority by section 11-1-1 of the Illinois Municipal Code (Ill Rev Stats 1965, c 24, § 11-1-1), to pass and enforce all necessary police ordinances, and, generally speaking, it has long been settled that municipalities may exercise police power concurrently with the State, even though their police regulations may differ from those of the State on the same subject, so long as the municipal regulation is not in conflict with the State regulation. (City of Litchfield v. Thorworth, 337 Ill 469, 475, 169 NE 265; City of Decatur v. Schlick, 269 Ill 181, 109 NE 737; City of Chicago v. Union Ice Cream Mfg. Co., 252 Ill 311, 96 NE 872; Hankins v. People, 106 Ill 628; Wragg v. Penn Tp., 94 Ill 11.) More recently, by reasoning and statutory construction with which we are in full accord, it was specifically held in City of Highland Park v. Curtis, 83 Ill App2d 218, 226 NE2d 870, that section 47 of the Uniform Act was not intended to supersede or preempt municipal ordinances regulating drunken driving, or to deprive municipalities of the authority to enact such ordinances, and that municipalities may still regulate such conduct concurrently with the State, provided the municipal ordinance is not in conflict with, or repugnant to, the State regulation. (See also: Village of Winnetka v. Sinnett, 272 Ill App 143.) In light of this decision, the problem here becomes one of whether the ordinance of the Village of Mount Prospect is in conflict with the State act, so as to render the ordinance invalid and incapable of enforcement.

Simply stated, it was the opinion of the trial court that a conflict exists because the ordinance, unlike the statute, contains no provision requiring the Secretary of State to revoke the chauffeur’s or operator’s license of a person convicted of violating the ordinance. Stated in another way, it was the trial court’s conclusion that the lesser penalty provided by the ordinance caused it to conflict with the statute. Our courts have consistently held, however, that provisions for a lesser penalty do not affect the validity of a municipal ordinance, or bring it into “conflict” with the concurrent State legislation on the subject. (E. g., Village of Winnetka v. Sinnett, 272 Ill App 143, 148; City of Evanston v. Wazan, 364 Ill 198, 202, 4 NE2d 78.) The same decisions, together with City of Chicago v. Union Ice Cream Mfg. Co., 252 Ill 311, 96 NE 872, make it clear that when courts have stated that municipal ordinances may not conflict with, or be repugnant to, State legislation, they have had reference to the conduct regulated rather than the penalty. That is to say, they are speaking of a municipal prohibition of conduct permitted by statute, or vice versa, which is a complete departure from the policy of the State as declared by general legislation. Union Ice Cream Mfg.” Co., supra, for example, involved a Chicago ordinance which prohibited the sale of adulterated foods. State legislation on the same subject had been adopted, and in holding that the ordinance was not in conflict with the State statute, the court said at page 315:

“This ordinance does not prohibit what the statute permits. While the ordinance attaches a less penalty for its violation than does the statute, we find no repugnancy between them. The general policy under both is the same.”

The same observation may be made here. The policy of the ordinance is completely consistent with the general policy declared in section 47 of the statute, and the lesser penalty provided by the ordinance does not cause it to conflict with, or be repugnant to, the State act. We hold that the ordinance of the village in the case at bar was valid and enforceable.

While not forthrightly or clearly stated, there is an indication in the record that the court’s decision that the ordinance was void and unenforceable was partly motivated by his belief that problems of double jeopardy could arise in the event defendant should subsequently be prosecuted for a violation of the State statute. In our opinion it was completely improper to determine the invalidity of the ordinance on such a speculative ground, and we do not consider that the issue of double jeopardy is properly before us. That problem, as we see it, would not become an issue unless and until an attempt is made to prosecute defendant under the State law, and the defense of double jeopardy is directly presented and determined.

For the foregoing reasons, limited by the fact defendant has not seen fit to file a brief, the judgment of the circuit court of Cook County is reversed, and the cause is remanded to that court for a new trial.

Reversed and remanded, with directions.

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


author: EBERSPACHER, P. J.

text:
    Ohman Dick and Charley Sanders, Petitioners Below, Appellants Herein, v. Charles A. Mitchell, et al., Respondents Below, Appellees Herein.
    Gen. No. 68-1.
    Fifth District.
    December 3, 1968.

      Gerald D. Owens, of Benton, for appellants.
    Richard 0. Hart, Hart & Hart, of Benton, for appellees.
   EBERSPACHER, P. J.

This is an appeal from the Circuit Court of Franklin County from an order dismissing a Petition for Tax Deed.

On October 19, 1964, Ohman Dick and Gene Flowers purchased certain real estate situated in Franklin County, Illinois, for taxes due and unpaid pursuant to the provision of chapter 120, § 716a, Ill Rev Stats 1963. Thereafter, Gene Flowers, one of the purchasers, assigned his interest in the original certificate of purchase issued by the County Clerk to Charley Sanders.

On June 27,1966, Petitioners, Ohman Dick and Charley Sanders, holders of the original certificate of purchase, filed their Petition for an Order Directing the Issuance of a Tax Deed in the Circuit Court of Franklin County. The petition set forth the date that the time allowed by law for the redemption of the real estate would expire and stated that an order directing the County Clerk to issue a Tax Deed would be entered if said real estate was not redeemed from the tax sale. The petition was filed within five months prior to the expiration of the time of redemption as required by section 747, chapter 120, Ill Rev Stats 1965. On July 16, 1966, personal notice was served by the Sheriff of Franklin County on Respondent, Charles A. Mitchell, the record owner of the real estate, advising him of the purchase by petitioners of the property at the tax sale and also advising him of the date of expiration of the redemption period and that the Petition for Tax Deed had been filed and stating the date and time of the proposed hearing for issuance of an order for said deed, if not redeemed. Thereafter, on October 3, 1966, Respondent Charles A. Mitchell, filed his Answer denying that petitioners were entitled to the proposed tax deed.

Petitioners on June 27, 1967, filed with the County Clerk an extension of time of redemption from the tax sale, extending the time of redemption to October 19, 1967. Also, on June 27, 1967, petitioners filed an Amended Petition for Tax Deed. Subsequent to the filing of the Amended Petition the petitioners gave notice to several interested parties by certified mail and by publication and on July 26, 1967, notice of the extended period of redemption and a copy of the Amended Petition for Tax Deed were served on Charles A. Mitchell by the Sheriff of Franklin County, Illinois.

Respondents, Charles A. Mitchell, and others, on August 28,1967, filed a Motion to Dismiss Amended Petition for Tax Deed alleging the petitioners’ failure to provide them with proper notice of the tax deed proceedings. The motion was heard, and before the time for redemption had expired, the court entered an order dismissing the Amended Petition with prejudice upon payment to petitioners by Charles A. Mitchell of the amount of the purchase price of the certificate of purchase, together with the amounts of the real estate taxes subsequently paid, in the amount of $225.68, apparently computed in accordance with the direction of section 747 of the Revenue Act. Charles A. Mitchell tendered the sum of $225.68 which petitioners refused.

Petitioners appealed, stating the sole issue to be whether the trial court correctly dismissed their Petition for a Tax Deed. In support of their appeal the petitioners argue that the procedure for notice set forth in sections 744 and 747 of the Revenue Act is not an absolute condition precedent to the issuance of a tax deed. In other words the petitioners urge that their substantial compliance with the statutes, so far as notice is concerned, was sufficient for the issuance of a tax deed. In this regard the petitioners have cited for our consideration the following cases: People v. Orth, 21 Ill2d 205, 171 NE 2d 626 (1961); Zeve v. Levy, 37 Ill2d 404, 226 NE2d 620 (1968); People v. O’Keefe, 18 Ill2d 386, 164 NE2d 5 (1960); Farlow v. Oliver, 29 Ill2d 493, 194 NE2d 262 (1963).

We note that in each of the cases cited by the petitioners a tax deed had been issued and the proceedings were to set the tax deed aside. In the present case, in contrast to the cases cited by the petitioners, there is a judicial finding by the trial court that the petitioners failed to comply with the statutory notice requirements.

We agree with the petitioners that the constitution does not require the notices specified in sections 747 and 747a of the Revenue Act and that the giving of such notices is not an absolute condition precedent to the issuance of a tax deed. Farlow v. Oliver, supra. However, it does not logically follow that the tax deed petitioner shall be entitled to a tax deed in spite of his noncompliance with the notice provisions. The primary purpose of the Revenue Act provisions for tax titles is to render tax titles incontestable. Once the tax deed has been issued it will not be rendered void by reason of mere error or impropriety but only by lack of jurisdiction by the issuing court of either the subject matter or the necessary parties. People v. O’Keefe, supra. But by the same token, it is the duty of the trial court to closely scrutinize the record to determine that there has been statutory compliance before directing the issuance of the deed. Farlow v. Oliver, supra. Construction favoring the validity of tax deeds once they have been issued is not synonymous with the disregard of statutory procedure before they are issued.

Section 744 of the Revenue Act (c 120, Ill Rev Stats 1967) provides in part:

“No purchaser or assignee of such purchaser of real estate sold for nonpayment of general taxes or special assessments, shall be entitled to a deed until the following conditions have been complied with, to-wit: Such purchaser or assignee shall serve, or cause to be served, notice of such purchase, not less than 3 months prior to the date when the time of redemption, or extended time of redemption as hereinafter provided shall expire, upon the following persons: Upon occupants or persons in actual possession of such real estate; upon the person in whose name the real estate was last assessed for general taxes, if, upon diligent inquiry, he or she can be found in the county; and upon the owners of or parties interested in such real estate, including trustees and mortgagees of record, if they can upon diligent inquiry be found in the county. If the person in whose name the real estate was last assessed for general taxes cannot upon diligent inquiry be found in the county, notice shall be sent by registered mail or certified mail, return receipt requested, to the address shown for such persons on the assessor’s books. Such notice by registered or certified mail, return receipt requested, shall also be sent to the owners of or parties interested in such real estate, including trustees and mortgagees of record, provided such persons cannot upon diligent inquiry be found in the county. In such notices the purchaser, or his assignee, shall state when he purchased the real estate, in whose name last taxed, the description of the real estate he has purchased, what taxes or special assessments were included in the judgment or decree for which the real estate was sold, and when the time of redemption will expire. . . .”

In the present case the petitioners filed their Amended Petition for Tax Deed on June 27,1967. On July 26, 1967, a copy of the Amended Petition for Tax Deed was served on Charles A. Mitchell, the record owner of the real estate. In it the date when the redemption period would expire, as extended, was stated to be October 19, 1967. From an examination of the record, service of this copy of the Amended Petition itself was the only notice given the record owner of the filing of the Amended Petition, which prayed for the deed, and alleged that all notice required by law had been or would be given. We believe the trial court was justified in not considering such notice adequate in meeting the requirements of the last quoted sentence of section 744, supra. The Amended Petition does not state specifically when the real estate was purchased ; does not state “in whose name last taxed”; and does not state what years taxes were included in the judgment or decree for which the real estate was sold. Furthermore, it was not served “less than 3 months” prior to the date of the extended time of redemption, as is required by section 744. The notice requirements of section 744 cannot be said to be nullified by the later expressed policy of liberal construction to be found in section 747 of the Revenue Act, which requires the notice prescribed by section 744. This noncompliance with the notice requirements in itself is sufficient to justify the trial court’s refusal to issue the tax deed. For this reason we find it unnecessary to pass upon the remaining allegations of noncompliance raised by the respondent.

Accordingly, the judgment of the Circuit Court of Franklin County dismissing the proceedings to obtain a tax deed shall be affirmed.

Judgment affirmed.

GOLDENHERSH and MORAN, JJ., concur.

       The Amended Petition advised “That at the regular Ten (10) year sale of lands and lots for General Taxes levied and assessed for the years prior to 1964.”


author: MR. JUSTICE DRUCKER

text:
    Village of Park Forest, a Municipal Corporation, Plaintiff-Appellant, v. Vivian L. Nicklas, DefendantAppellee.
    Gen. No. M-51,470.
    First District, Fourth Division.
    December 4, 1968.

      Richard W. Hall and Henry X. Dietch, of Park Forest, for appellant.
    Professor James R. Thompson, Northwestern University School of Law, of Chicago, amicus curiae.
   MR. JUSTICE DRUCKER

delivered the opinion of the court.

This is an appeal from an order quashing a complaint which sought to charge defendant with a violation of a municipal ordinance. Defendant did not appear in this court but, on motion of the Village, James R. Thompson was appointed amicus curiae and he filed a brief which ably presents the case for defendant and supports the judgment of the trial court. The Village contends that the complaint was sufficient in law and that the court erred in quashing it and dismissing the defendant.

On February 28,1966, at 8:45 p. m. a traffic ticket was issued to defendant. The form of the ticket is devised so that it can be utilized by prosecuting authorities for all traffic offenses under the Uniform Act Regulating Traffic on Highways, the Illinois Vehicle Law (Ill Rev Stats 1965, c 95%) and for violations of municipal ordinances. This is accomplished by providing small squares which are marked by the officer when applicable. After its issuance and filing, the ticket becomes the complaint in court.

The complaint in the instant case stated that Vivian L. Nicklas of 954 Park Drive, Kankakee, on February 28, 1966, at 8:45 p. m. did drive and operate a motor vehicle on Sauk Trail near 322 Sauk Trail within the Village of Park Forest and did then violate section 77.305(B) of Ordinance 309 of the Village of Park Forest as amended by Ordinance 440 by “Careless Driving (Accident).” The complaint under a subheading “Leading Causes of Accidents” has a marked square reading “too fast for conditions.” Under an adjoining subheading “Conditions that increased seriousness of violation” the marked squares show that traffic was “medium,” that the road had snow on it, that the accident was “head on,” that there was property damage and that the accident happened in a residential area.

After denying a motion to strike the complaint, the trial judge heard the testimony presented by the Village. The court then denied defendant’s motion for a directed verdict but allowed the defendant’s motion to quash the complaint. The Village appealed.

Opinion

In City of Chicago v. Lewis, 28 Ill App2d 189, 191, 194-195, 171 NE2d 70 (1960), the court thoroughly discussed the rules of pleading in cases involving municipal ordinance violations and stated:

Under the law of Illinois, a suit to recover a penalty for violation of a city ordinance is governed by the rules of pleading and the laws relating to civil practice, and not by the rules and laws applicable to criminal proceedings. City of Decatur v. Chasteen, 19 Ill2d 204, 216, 166 NE2d 29; Village of Maywood v. Houston, 10 Ill2d 117, 139 NE2d 233; City of Chicago v. Williams, 254 Ill 360, 98 NE 666; City of Chicago v. Dryier, 325 Ill App 258, 59 NE2d 700 (abst opinion); City of Chicago v. Baranov, 189 Ill App 25.
There is room for improvement, no doubt, but it would be of questionable wisdom to subject prosecutions for violation of city ordinances to the rigid technical requirements of pleading in criminal cases. It would be no boon to defendants and would only add to the problems that now confront the courts in the disposition of these cases.

Under these standards the instant complaint sufficiently stated a cause of action and adequately informed defendant of the nature of the offense. See also City of Chicago v. Berg, 48 Ill App2d 251, 199 NE2d 49 (1964).

Defendant argues that these cases are not applicable because section 102-15 of the Code of Criminal Procedure of 1963 (111 Rev Stats, c 38, § 102-15) defines an offense under that Code as any “violation of any penal statute of this State or of any penal ordinance of its political subdivision” and that therefore a complaint must comply with section 111-3 (a) of that Code. That section provides that:

... a charge shall be in writing and allege the commission of an offense by: (1) stating the name of the offense; (2) citing the statutory provision alleged to have been violated; (8) setting forth the nature and elements of the offense charged; (4) stating the date and county of the offense as definitely as can be done; (5) stating the name of the accused. (Ill Eev Stats, c 38, § 111-3 (a) (1967).)

Defendant insists that the complaint does not meet the requirement of “setting forth the nature and elements of the offense charged.” In the recent case of People v. Tammen, 40 Ill2d 76, 77-79, 237 NE2d 517, the court in answering defendant’s argument that his constitutional right to be informed of the nature and cause of the accusation had been violated and that the complaint failed to meet the requirements of section 111-3 of the Code of Criminal Procedure of 1963 stated:

The constitutional right of a defendant to know the nature and cause of the accusation means that the offense charged be set forth with all necessary certainty so that defendant will be able to intelligently prepare his defense and to prevent his being tried a second time for the same offense after being once put in jeopardy. (People v. Griffin, 36 Ill2d 430; People v. Peters, 10 Ill2d 577.) The modern trend is to do away with technicalities of pleading and stress simplicity which does not detract from clarity in order that the accused will understand the charge against him.
The traffic ticket issued to defendant was in writing and did allege the commission of an offense by naming the offense, citing a statutory provision, stating the time and place of the offense with certainty and stating the name of the accused. The ticket which was issued was in the form of the “Illinois Uniform Traffic Ticket and Complaint” and does not set forth the nature and elements of the offense of “drag racing.” Since the Uniform Traffic Ticket provides no space for setting forth the nature and elements of the offense charged, the common practice is to merely charge the offense by name and citation.
Inasmuch as the Uniform Traffic Ticket is only used for misdemeanors, is written by an arresting officer rather than a State’s Attorney and is generally written at the time the offense is committed, we believe that naming the offense and citing it is sufficient and will generally be understood by the person charged.

Defendant points out that People v. Tammen, supra, deals with a charge of drag racing which is specifically defined in the statute while People v. Green, 368 Ill 242, 13 NE2d 278, relates to a charge of reckless driving and requires a factual description of the particular activity; that since reckless driving can be equated with careless driving, the instant complaint, on the authority of the Green case, is insufficient. In finding the information in Green lacking in particulars necessary to apprise the defendant of the nature of the charge the court stated at page 254:

The information in the present case did not allege a single fact and there was nothing in it from which the defendant could tell definitely, or even guess, what acts he may have been charged with. It might have been driving while intoxicated, or running through a stop-light, or driving at an excessive speed or without brakes, lights or horn; he may have been driving on the wrong side of the road or on the sidewalk, or without keeping proper lookout for children, or any one of dozens of things which might constitute wilful and wanton disregard for the safety of persons or property. Neither does it specify where the offense took place, as it might have been on any street or highway in the whole of Chicago, and it might have taken place on any date within eighteen months prior to the filing of the information. All that appears in this information is that in the opinion of the person who wrote it and the person who signed it, the defendant had been guilty of driving a vehicle with wilful and wanton disregard for the safety of persons or property. It thus fails to meet either of the two basic requirements of an information. It does not give defendant enough information to prepare his defense and it is not sufficiently definite to be of any value as a bar to further prosecution.

We believe the later pronouncement of our Supreme Court in Tammen must be applied where appropriate, as it is not in essential disagreement with Green, and yet is based on a rationale that recognizes the exigencies of dealing with over one and one-half million traffic tickets a year. Surely in the instant case the defendant was informed by the complaint as to where and when the careless driving took place, that the road had snow on it, that traffic was “medium” in a residential area, that defendant was driving “too fast for conditions” and that a head-on collision occurred causing property damage. We believe that even if we were to apply the requirements of section 111-3 (a) of the Code of Criminal Procedure the complaint sufficiently apprised defendant of the nature and cause of the accusation and enabled her to intelligently prepare her defense, and would prevent her from being tried a second time for the same offense. See People v. Raby, 40 Ill2d 392, 240 NE2d 595.

However, we cannot conclude that section 111-3 (a) of the Code of Criminal Procedure applies to ordinance violations. It is undisputed that a complaint charging a municipal ordinance violation must allege that the offense was committed within the confines of that municipality. Laying of venue in the county is not sufficient, whereas the Code requirement would be met by stating the “county of the offense,” thus demonstrating that section 111-3 (a) is not applicable to ordinance violations. In consequence, the rules of pleading in force prior to the adoption of the Code still govern. We might point out that under the title “Charging an Offense” [which includes section 111-3(a)] other sections of the Code of Criminal Procedure clearly relate only to criminal prosecutions by the State and not to ordinance violations. In Village of Park Forest v. Bragg, 38 Ill2d 225, 229, 230 NE2d 868, in discussing Supreme Court Rule 604 which enumerates the decisions from which “the State” may appeal in criminal cases, the court stated:

[T]he term “State” would not ordinarily be considered as applying both to the State itself and to its political subdivisions ....

In a recent case, People v. Stout, 41 Ill2d 292, 242 NE2d 264, the court held that a prosecution to recover a penalty for violation of a city ordinance is not a “criminal proceeding” and that section 9 of article II of the Constitution of the State of Illinois is not applicable thereto. We note that in section 100-2 of the Code of Criminal Procedure (Ill Rev Stats 1965, c 88, § 100-2) the scope of the Code is set out as follows:

These provisions shall govern the procedure in the courts of Illinois in all criminal proceedings except where provision for a different procedure is specifically provided by law. (Emphasis supplied.)

In City of Chicago v. Williams, 254 Ill 360, 98 NE 666, and City of Chicago v. Terminiello, 400 IKL

We therefore find that in determining the sufficiency of a complaint charging a violation of a municipal ordinance the rules of civil procedure apply and that in the instant case the complaint states a cause of action and adequately apprises defendant of the nature and cause of the accusation.

The judgment quashing the complaint and dismissing the charge is reversed and the cause is remanded for further proceedings.

Reversed and remanded.

MCCORMICK, P. J. and ENGLISH, J., concur.

       Section 77.305(B): “No person shall operate any vehicle in a careless or negligent manner so as to endanger life or property.”

       Ill Rev Stats, 1967, c 95%, § 145.1:
      For the purpose of this Section “drag racing” means the act of 2 or more individuals competing or racing on any street or highway in this State in a situation in which one of the motor vehicles is beside or to the rear of a motor vehicle operated by a competing driver and the one driver attempts to prevent the competing driver from passing or overtaking him, either by acceleration or maneuver, or one or more individuals competing in a race against time on any street or highway in this State.

       111 Rev Stats, 1965, e 38, § 111:
      § 111.2. Pertains to prosecution of felonies.
      § 111.3. Has language pertaining to grand jury and signing of informations by State’s Attorney.
      § 111.4. Language pertaining to joining separate counts charging felonies with counts charging misdemeanors.

      § 111.5. Provides for amendment of indictment, information or complaint on motion by the State’s Attorney.

      § 111.6. Provisions of bill of particulars by State’s Attorney and limiting of State’s evidence.
      See also: § 114.4. Motion for continuance by a defendant or the State.

      § 114.6. Change of Place of Trial (County).
      § 114.8. Severance-—prejudice to defendant or State.

      § 114.9. State to furnish list of witnesses.
      § 114.10. State to furnish written confession.
      (Emphasis supplied.)

       This section in relevant part states: “In all criminal prosecutions the accused shall have the right ... to demand the nature and cause of the accusation . . . .”


author: MR. JUSTICE SCHWARTZ

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Joseph Grieco (Impleaded), Defendant-Appellant.
    Gen. No. 51,048.
    First District, Third Division.
    December 5, 1968.
    Rehearing denied January 10,1969.

      Bellows, Bellows & Magidson, of Chicago, for appellant.
    John J. Stamos, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Anthony J. Onesto, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

The appellant Joseph Grieco, together with his brother Donald Grieco, was indicted for the crimes of aggravated battery and battery. They were tried by the court and found guilty on the battery count. The court fined defendant Joseph Grieco $500 and sentenced him to serve six months in the Cook County Jail. The codefendant Donald Grieco was placed under the supervision of the court for a period of two years. That appears to be a method by which the court retains jurisdiction for the purpose of observing the conduct of a defendant over a period of time before imposing a sentence.

In this appeal Joseph Grieco contends that the indictment failed to inform him of the nature of the charges against him, that it failed to charge an offense and that evidence was erroneously admitted of a threat against the complaining witness and of the transfer of certain money, both events having occurred after the alleged battery. The facts follow.

George Quarnstrom, the complaining witness, testified that in September 1963 he was in financial straits. A fellow employee referred him to the Independent Loan Company at 2015 Larrabee Street in Chicago. Quarnstrom went to a pizza parlor at that address and there was introduced to a man identified as Don Grieco. He applied for a loan and Grieco said he would let him know in a few days whether a loan would be approved. Several days later the loan transaction was completed. The face amount of the loan was $725, but Quarnstrom testified that he received only $475. He was obligated to make 25 weekly installments of $28 each plus a final payment of $25. A collector appeared every week at the Chicago Daily News Building where Quarnstrom was employed and he (Quarnstrom) made the first twelve payments promptly. The thirteenth payment came due on December 4, 1963, and defendant was in default.

On December 6, 1963, Quarnstrom was in Mike’s Aragon Tavern at Lawrence Avenue and Broadway in Chicago drinking beer. He testified that Don Grieco and the appellant Joseph Grieco entered the tavern at about 2:30 p. m. and asked to talk to him in the washroom. Donald Grieco stood by the door while Joseph Grieco struck Quarnstrom in the face about nine times and in the chest three or four times. Defendant concluded the meeting by saying, “Get the twenty-eight dollars in, you -.” Quarnstrom testified that following the altercation he bled from the mouth and nose and his face was swollen. The bartender gave him a towel and a drink of liquor, after which he washed his face and went home. Following the incident at the tavern he made six more payments on the loan. On one of those occasions Don Grieco came to collect the installment and Quarnstrom asked him, “Why did you have to do this to me? Only one payment behind,” to which Grieco replied, “Look, don’t get smart. I will throw you right out this window here.”

On February 26,1964, Quarnstrom went to the Chicago Police Department and received $28 which he then paid to a collector named “Al,” to whom he had paid some of the previous installments. The serial numbers of the bills had been recorded by the police and the marked money was later found during a search of a prisoner named Albert Si, identified as “Al,” who had been arrested at the Grieco office along with the Grieco brothers.

We proceed to consideration of appellant’s first contention—that the indictment was so “vague and uncertain” as to deprive him of his right to be apprised of the nature of the charges against him, as provided by the Fifth and Sixth Amendments to the Federal Constitution. Count II of the indictment upon which appellant was convicted recites in pertinent part that the appellant “committed the offense of battery, in that [he] intentionally and knowingly, without legal justification, committed a battery on George Quarnstrom which caused great bodily harm to said George Quarnstrom, in violation of chapter 38, section 12-3, of the Illinois Revised Statutes, 1963. . . .” The indictment describes the offense in virtually the same terms as the language of the statute. Ill Rev Stats, c 38, § 12-3 (1963).

An indictment may properly be phrased in the language of the statute when the statute itself particularizes the offense sufficiently for the defendant to know the precise offense with which he is charged. People v. Sims, 393 Ill 238, 66 NE2d 86; People v. Klemann, 383 Ill 236, 48 NE2d 957. The word “battery” has a common usage apart from its technical use in the Criminal Code. It has been defined as the “act of battering or beating.” Webster’s New International Dictionary, 2nd ed, unabridged. In common parlance a battery is a beating and a beating is a battery. It does not require subtle language to describe its nature or elements. The charge that the defendant “[c] ommitted a battery on George Quamstrom which caused great bodily harm to said George Quarnstrom” was sufficient to notify the defendant of the nature of the offense. Had he desired further details, he could have moved for a bill of particulars.

Defendant argues that he was prejudiced by the admission of evidence relating to a threat against the complaining witness. He contends that the threat constituted a separate offense not charged in the indictment and occurring subsequent to the alleged battery. Five days after the alleged battery and outside the presence of the appellant, Donald Grieco threatened to throw Quarnstrom through a window. Appellant argues that this evidence was irrelevant and prejudicial as to him. The defendants were tried together and no objection was made to the joinder. At the beginning of the testimony regarding the threat, counsel objected on behalf of both clients on the sole ground that the threat was made after the alleged battery. Counsel who tried the case did not object specifically on behalf of appellant who was not present when the threat was made nor did he ask the court to disregard the testimony as to Joseph Grieco. The sole objection preserved for review therefore is whether evidence of a subsequent act was properly admitted.

Evidence of other crimes is admissible where it shows motive or intent, absence of mistake or accident, or the existence of a common scheme or design. People v. Lehman, 5 Ill2d 337, 125 NE2d 506, citing 1 Wigmore, Evidence, § 216, 3rd ed, 1940. When, as here, the question is whether the defendant’s conduct evidenced a plan to commit the charged offense, it was proper to admit evidence of subsequent conduct supporting the charge. Testimony regarding Donald’s relationship with Quamstrom bears upon Donald’s motives and the degree of his participation in the alleged crime and it established a connection between Donald and the loan transaction which led to the beating.

Proceeding to the final point, appellant contends that the testimony regarding the transfer of marked money suggested that appellant was guilty of some undefined offense other than the battery and that he was prejudiced by that insinuation. The indictment charged that appellant intentionally and knowingly committed the battery. Existence of the debt and the methods employed to collect it relate to appellant’s motive and intent. Quarnstrom testified that he made numerous payments to a collector other than the codefendants and that the marked money showed only that the payments were collected on behalf of the codefendants. All the evidence reveals that failure to keep current with the obligation was the motive for the attack on Quarnstrom. The State may show that a crime was committed pursuant to a conspiracy, even though the indictment does not charge a conspiracy, when that evidence tends to prove the intent, motive or common design to commit the crime charged. People v. Novotny, 371 Ill 58, 20 NE2d 34.

We find no reversible error in the record. The judgment is affirmed.

Judgment affirmed.

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