text:
    Ferne B. Eike, Plaintiff-Appellee, v. Central National Life Insurance Company, an Illinois Corporation, Defendant-Appellant.
    Gen. No. 69-134.
    Third District.
    September 11, 1970.

      Robert H. Reck, of Mendota, for appellant.
    Jack Trager, of Ottawa, for appellee.
   ALLOY, J.

Defendant Central National Life Insurance Company appeals from a judgment of the Circuit Court of LaSalle County based upon a claim for indemnity for loss of life under a policy issued by the defendant-company to the husband of plaintiff, Feme B. Eike.

The record discloses that Marshall J. Eike, plaintiff’s deceased husband, purchased a health and accident insurance policy from defendant Central National Life Insurance Company in September of 1952. The premiums were payable upon the policy annually on the anniversary date of the policy (September 5). There was a 30-day grace period in the policy. In the years 1953, 1954, 1955, 1956, 1957, 1958, and 1960 the premium was paid after September 5 but within the 30-day grace period. The September 5, 1961 premium was not paid within the 30-day grace period, and the policy lapsed. Thereafter, a new application was made by Eike and the policy was reinstated on November 1, 1961. From 1961, the anniversary date of the policy was November 1 of each year. The decedent, Mr. Eike, continued to pay on the policy through 1966 and all payments except one were made after November 1, but before the end of the 30-day grace period. The payment due November 1, 1967, was not made within the 30-day grace period.

The policy contained a provision that if default was made in the payment of the premium on the policy subsequent acceptance of the premium by the company or any of its duly authorized agents would reinstate the policy only to cover accidental injury thereafter sustained and for such sickness as may begin more than ten days after the date of such acceptance. Under the terms of Ill Rev Stats, c 73, § 969.5 (containing a provision applicable to the policy at the times under consideration), the statute provides that if any renewal premium is not paid within the time granted the insured for payment, subsequent acceptance of the premium by the insurer or any agent “without requiring in connection therewith an application for reinstatement, shall reinstate the policy.”

Sometime before December 6, 1967, the Levinson Insurance Agency was notified by defendant-company that the Eike policy had lapsed and that the agency should contact Mr. Eike relative to a possible renewal. Mr. Eike did not contact Levinson and had no knowledge that the agency had been notified of the lapse until Edward Levinson had called at the Eike residence on December 6, 1967. Levinson discussed the reinstatement of the policy with Mr. and Mrs. Eike, and Mr. Eike expressed a desire to renew the policy. Levinson had a reinstatement form with someone else’s name on it and he modified it by writing in Mr. Bike’s name. Levinson asked about Mr. Bike’s health, but did not fill out the portion of the application for reinstatement which dealt with medical history. Mr. Eike then read the application and signed it, wrote out a check to the company for $79 for one year’s premium, and Levinson took the application and check and mailed it about an hour after leaving Mr. Eike. Mrs. Eike testified at the trial that Levinson told her and Mr. Eike on December 6, 1967, that the policy was reinstated as of that date. Levinson testified that he did not represent to Mr. Eike that the policy was reinstated on December 6, 1967, when he took the application and the check for $79. No receipt was left with Mr. Eike when the application was taken by Levinson on December 6,1967.

On December 11, 1967, the application form which Levinson had completed and Mr. Eike had signed was returned by the company to Mr. Eike with the request that he answer the medical questions. This was done and the application was mailed back to the company on December 12. Mr. Eike was accidentally killed on December 14, 1967. The defendant-company, after being notified of the death of Mr. Eike, wrote Mrs. Eike and stated that the policy was not in force on December 14, 1967, the date upon which Mr. Eike was killed. It was shown at the hearing, by testimony of a company executive, that the insurance company, in handling reinstatement applications, checks the statements with doctors or hospitals. The Eike application bore the handwritten notation “claims checked o. k.” which was a notation made by an employee of defendant insurance company that the check had been made on Mr. Eike. The company records show that the application was processed and Mr. Bike’s check was deposited on December 18, 1967, which was a period of four days after Mr. Bike was killed. The company had no record of when it received the Bike application the second time.

The policy under consideration was in the principal sum of $2,500 and a part of the policy provided that after the first year’s premium had been paid, “each annual renewal premium paid in advance on this policy shall add 10% of the amount payable for loss of life.” The court found in favor of plaintiff and held that the policy was in force at the date of the death of Mr. Bike. The court also awarded plaintiff an additional $2,500 on the annual increase provision, and likewise awarded plaintiff $1,000 in attorney’s fees pursuant to Ill Rev Stats, c 73, § 767. Judgment was entered for $5,000 on the policy, plus the $1,000 in attorney’s fees referred to.

The first issue for consideration was whether Edward Levinson was an agent of Central National Life Insurance Company pursuant to either express or implied authority. The record discloses that defendant-company first contacted the Levinson Agency when the Bike premium was past due. Until Levinson talked with him, Mr. Bike did not know that the Levinson Agency had been contacted in this matter. The defendant-company, therefore, set the whole process of renewal in motion. There was evidence from Mrs. Bike that when Mr. Bike signed the application he was advised by Mr. Levinson, when he left with the check and the application, that the policy had been reinstated as of that time. Under such facts, the trial court was justified in finding that Edward Levinson was the agent of defendant insurance company. In Moone v. Commercial Cas. Ins. Co., 350 Ill App 328, 112 NE2d 626, an attorney called on an agency to obtain coverage under a group bar association health policy. A Mr. Hughes who had an office in the insurance company building rent-free, and who was often sent out to answer inquiries for the insurance agency, was sent to see the lawyer by the agency. Hughes filled out an application for coverage with the company that sent him out and because of some problems on the application the question arose as to whether Hughes was an agent of the insurance company. While he was a licensed broker and insurance agent he was not licensed specifically as an agent for the insurance company. The trial court held that Hughes was not an agent for the insurance company. The appellate court on appeal, found that such conclusion was contrary to the manifest weight of the evidence and that Hughes was the agent of the insurance company. The court stated in that case (at page 335):

“Whether he was a broker or agent is determined not by what he is called, but by what he does. Midwest Transfer Co. v. Preferred Acc. Ins. Co., 342 Ill App 231. Whether Hughes was the agent of plaintiff or insurer, so as to charge one or the other with responsibility for the answers in the application, depends upon who first set him in motion, who could control his action, who is to pay him and whose interest was he there to protect.”

The court there concluded that defendant-company had set Hughes in motion, just as in the case before us, Central National Life Insurance Company had set Levinson in motion. In the Moone case, the court looked specifically to see whose interest the agent was trying to protect and it concluded he was looking after the insurance company interests, just as Levinson was presumably looking after Central National Life Insurance Company’s interest in the instant case. The court in the Moone case stated that it agreed with plaintiff that if Hughes was not expressly authorized to act as agent of the company, the trial court should have found that he was held out as agent of the company and that his actions under his apparent authority were binding on the insurer.

In the case before us, while the language of the policy was more limiting, the provisions of section 969.5 of chapter 73 of Ill Rev Stats automatically became part of the policy. Under that section, payment to an agent of the company automatically reinstated the policy, unless the agent issued a conditional receipt for the premium tendered. Levinson did not issue such conditional receipt in the cause before us and pursuant to that section, the policy was reinstated. This principle has been sustained in cases in other states (Bousquet v. Transportation Ins. Co., 354 Mass 99, 235 NE2d 807). Defendant has cited other cases in which there was an express condition that the application was not to be effective for the purpose of reinstatement until approved at the home office. No such statement is found in the application in the instant case.

The next question for consideration is whether the maximum increase under the policy for payment of premiums “in advance” was made properly applicable by the trial court. It is noted that the provision is that for each annual premium paid “in advance” on the policy, another 10% is added to the amount payable for loss of life. Defendant-company contends that this phrase means that the premium must be paid prior to the anniversary date of the policy each year in order to add the 10% increase. Plaintiff contends that the payment of the premium each year, being a payment in advance for the coming year, makes the 10% increase applicable regardless of whether such payment is made before the anniversary date or during the grace period. We agree with the contention of plaintiff. Since the language is ambiguous it should be construed liberally in favor of the insured (Van Hulle v. State Farm Ins., 99 Ill App2d 378, 241 NE2d 320; Reiner v. St. Paul Fire & Marine Ins. Co., 106 Ill App2d 210, 245 NE2d 655). If defendant-company intended that the 10 % yearly increase was not to be effective unless the premium was paid prior to the anniversary date, the company should have so provided specifically in the terms of the policy. The use of the phrase “in advance” may have been another means of describing the yearly advance premium due on the policy, and such premium could be paid prior to the anniversary date or during the grace period. The provision might well have been considered an effective means of inducing policyholders to keep policies in force for several years, rather than permitting them to lapse. Thus, a payment, at any time during the grace period would still allow the insured the 10% increase and accomplish the company’s objective.

Attorney’s fees are to be awarded in actions against insurance companies pursuant to chapter 73 of Ill Rev Stats, § 767, where the conduct of the defendant-company is “vexatious and without reasonable cause.” In such case, the court may allow 25% of the amount which is found recoverable by plaintiff, or $1,000. In the case before us, defendant had asserted two defenses to the action. One was that Levinson was not the agent of Central National Life, and the other was that Levinson had no authority to reinstate the policy when he called upon Mr. Eike on December 6, 1967. As stated in Zak v. Fidelity-Phoenix Ins. Co., 34 Ill2d 438, 444, 216 NE2d 113, at page 116, the purpose of the statute is not to allow attorney’s fees simply because a defendant-company was unsuccessful in litigation. In the cause before us there were issues and ambiguities to be resolved. On the basis of the record, we believe that the conclusion that the insurance company was guilty of vexatious conduct and acted without reasonable cause was not justified. Accordingly, we find that the allowance of attorney’s fees in the sum of $1,000 was improper.

This cause will, therefore, be affirmed as to the judgment for $5,000 and reversed as to the allowance of the $1,000 attorney’s fee. This cause is, therefore, remanded to the Circuit Court of LaSalle County with directions to modify the judgment in accordance with the views expressed in this opinion.

Affirmed in part, reversed in part and remanded.

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


source: Caselaw Access Project

author: MR. JUSTICE ABRAHAMSON

license: Public Domain

text:
    Michael B. Compton, a Minor, by Otis A. Compton, His Father and Next Friend, Plaintiff-Appellant, v. Dundee Township Park District, a Municipal Corporation, Defendant-Appellee.
    Gen. No. 70-14.
    Second District.
    September 14, 1970.
    Rehearing denied November 2, 1970.

      Strass, Terlizzi and Skjoldager, of Dundee, for appellant.
    O’Brien, Burnell, Puckett & Barnett, of Aurora, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiff prosecutes this appeal from a judgment in favor of the defendant in his suit brought against the Dundee Township Park District to recover damages for personal injuries suffered by him.

The defendant Park District owned and maintained Keith Andres Park in Carpentersville, Illinois. In 1964 or 1965, the Park District constructed a coasting slope in the park by the removal of trees from a heavily wooded area and the regrading of the surface to utilize the natural contour of the land. When it was completed, the slope was approximately 55 feet high, 30 feet wide and 408 feet long. A handrail was constructed about 80 feet to the side of the slope and two signs directed the public to use the handrail to ascend the slope. The park itself was small in size and no supervision was provided.

On January 9, 1967, Michael B. Compton, then a few days from his ninth birthday, returned from school and took his sled to the coasting slope directly across the street from his home at about 4:00 p. m. There were approximately 10 to 15 other children on the slope that afternoon. Michael went up and down the slope about 5 times and on each occasion went up the face of the slope instead of by the handrail. On his last ascent, Michael was a few steps behind another boy who used a stick or pole about 3 to 4 feet long to help him up the hill. When they were about halfway up, the other boy dropped the pole to the side and continued his ascent. Michael picked up the pole with his right hand, and dragging his sled with his left, took 2 or 3 more steps up the slope before he lost his footing on the ice. Michael fell and the pole went into his right eye. A week later the eye was removed.

Michael brought suit, through his father, Otis Compton, on June 26, 1967, and alleged that the Park District was negligent in the maintenance of the area and in its failure to provide supervision on the slope, and that its negligence was the cause of the serious injuries suffered by him. He prayed for judgment in the amount of $250,000 for his damages. The matter proceeded to trial before a jury on May 15, 1969, and a verdict was returned “for the defendant, and against the plaintiff.” The jury also answered “no” to the defendant’s special interrogatory “Was the plaintiff, Michael B. Compton, guilty of any negligence which proximately caused or contributed to cause the injury he sustained?”

The principal contention of the plaintiff in the trial court was that the Park District was negligent in its failure to provide supervision for the coasting slope. On appeal, he complains that the Park District was improperly permitted to raise as defense to that allegation a lack of funds to employ a supervisor and the negligence of the boy’s parents.

An examination of the record discloses that the issue of funds available to the Park District was first introduced during the plaintiff’s examination of Charles O’Neil, a park commissioner, called as an adverse witness pursuant to section 60 of the Civil Practice Act. O’Neil testified that he was a member of the committee that would determine if and where recreational facilities would be constructed within the park district and that he took part in the decision to construct the coasting slope. He was then asked if the committee considered the “necessity or desirability of having supervision on this particular slope ?” He answered:

“Yes. We talked about supervision, but not having a recreation tax, we did not know how we could provide it.”

O’Neil then gave his opinion that supervision was desirable but not necessary.

Joel Carter was the superintendent of the park district at the time of the accident and testified for the defendant. Carter also was of the opinion that supervision would be desirable at the slope but was not practical in this case. He was then asked why it was not practical and replied:

“From a financial standpoint, first of all. The Park District simply did not have funds to provide employees for that purpose. ...”

It is recognized by the counsel for the plaintiff that he neither objected to the testimony thus given nor moved that it be stricken from the record. However, he argues that his failure so to do should not be held against the plaintiff in view of his minority and the special protection afforded minors by the law. It is true that Illinois follows the rule that the court “has a duty to see that the rights of an infant are adequately protected, and is bound to notice substantial irregularities even though objections are not properly presented on its behalf.” Muscarello v. Peterson, 20 Ill2d 548, 555, 170 NE2d 564; Giles v. Keunnen, 50 Ill App2d 389, 391, 200 NE2d 143. This so-called “Muscarello” rule does not mean, however, that every failure to object to improper testimony by counsel for a minor litigant gives rise to reversible error. Reeves v. Eckles, 108 Ill App2d 427, 430, 248 NE2d 125. The testimony in regard to the lack of adequate funds to provide a supervisor at Keith Andres Park was unquestionably irrelevant to the issue of this case and objections to it if properly raised should have been sustained. However, the failure to raise such objections did not result in such a “substantial irregularity” as to fall within the doctrine of the Muscarello case.

The plaintiff employs the same argument to support his further contention that it was error to allow a magistrate to preside at the trial since the ad damnum reasonably exceeded $10,000. Section 622 of chapter 37 (Ill Rev Stats 1967, c 37, § 622) provides that civil proceedings shall be assigned to magistrates where the damages claimed do not exceed $10,000. However, section 628 provides that “All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins.” The Supreme Court in the case of Coleman v. Scott, 38 Ill2d 387, 389, 231 NE2d 408, considered these sections and concluded that absent such objection there was “no absence of jurisdiction” even though the ad damnum is that case (and judgment) was $10,000. In our case, the record indicates that respective counsel stipulated that the magistrate hear the case and that no question would be raised as to his jurisdiction. Counsel for the plaintiff now maintains that he had no authority to so stipulate and cites a number of cases in which it has been held that various rights of a minor cannot be waived. A magistrate is a full judicial officer; People for the Use of Cullerton v. Crawford, 80 Ill App2d 237, 243, 225 NE2d 80; and unless an objection is raised before a trial begins as to the propriety of a particular assignment to him, it is waived, Coleman v. Scott, ibid. We do not feel that the “right” to object to the jurisdiction of a magistrate is of the same class as those rights that have been held beyond waiver by a minor. If we were to accept the logic of the plaintiff in support of these contentions, the conduct of a lawsuit on behalf of a minor would be virtually beyond the discretion of trial counsel and reposed in the court. We do not feel that the Muscarello doctrine or the interests of justice compels such a conclusion.

The plaintiff also complains that the jury should have been instructed that the negligence of his parents could not be charged against him since the court improperly permitted evidence on that issue to be presented to it. Since the father had assigned his right to recover for certain medical expenses to his son, it is not certain that such evidence was improper. Hahn v. Beurskens, 66 Ill App2d 423, 213 NE2d 301. In any event, the jury was instructed that “contributory negligence of the parents is not an issue in this case” and the further instruction offered by plaintiff would have been redundant.

It is next maintained that it was error not to give plaintiff’s instruction 6 (IPI No. 5.01) to the effect that the failure of the Park District to have all members of the Board testify raised a presumption that their testimony would have been adverse. It is not clear that the members of the Board would have any knowledge pertinent to the suit and in any event, as public officials, they were clearly “equally available” to either party. For these reasons, the instruction was properly refused.

Lastly, it is argued that the court should have granted the motion of the plaintiff for judgment notwithstanding the verdict in view of the answer to the special interrogatory and after the improper evidence was disregarded. The rule has been that a “judgment n. o. v. (should be) entered only in those cases in which all of the evidence, when viewed in its aspect most favorable to the opponent, so overwhelmingly favors movant that no contrary verdict based on that evidence could ever stand.” Pedrick v. Peoria & E. R. Co., 87 Ill2d 494, 510, 229 NE2d 504. Based on that test, the motion was properly denied by the trial court and the judgment should be affirmed.

Judgment affirmed.

DAVIS, P. J. and SEIDENFELD, J., concur.


author: PRESIDING JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John W. Parker, Defendant-Appellant.
    Gen. No. 52,874.
    First District, Second Division.
    September 15, 1970.

      Stradford, Lafontant, Gibson, Fisher & Cousins, of Chicago (Jewel Lafontant and Cornelius E. Toole, of counsel), for appellant;
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and James B. Klein, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

PRESIDING JUSTICE McCORMICK.

Not to be published in full.


author: JUSTICE LYONS.

text:
    Milton M. Hermann, et al., Counterplaintiffs-Appellants, v. Roy G. Rowlen, et al., Counterdefendants-Appellees.
    Gen. No. 53,387.
    First District, Second Division.
    September 15, 1970.
    Albert Koretzky, of Chicago, for appellants;
    Lubershane and Danger, of Chicago, for appellees.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


text:
    Roy G. Rowlen and Ada L. Rowlen, Plaintiffs and Counterdefendants-Appellees, v. Milton M. Hermann and Mildred L. Hermann, Defendants and Counterplaintiffs-Appellants.
    Gen. No. 53,787.
    First District, Second Division.
    September 15, 1970.
    Albert Koretzky, of Chicago, for appellants;
    Maxwell Lubershane, Lubershane and Langer, of Chicago, for appellees.
   Opinion by

JUSTICE LYONS.

Not to be published in full.


author: ALLOY, J.

text:
    Rita Sales Corporation, an Illinois Corporation, Plaintiff-Appellant, v. Robert Bartlett and First National Bank of Moline, a National Banking Association, Defendant-Appellee.
    Gen. No. 70-19.
    Third District.
    September 16, 1970.

      Herbert M. Specter, of Rock Island, for appellant.
    Virgil Bozeman, of Moline, for appellee.
   ALLOY, J.

The record in this case discloses that Michael Rita, president of Rita Sales Corporation, purchased a number of lots and a building in Moline, Elinois, in 1945 on behalf of plaintiff. Following some minor grading of the lots, plaintiff began use of the adjoining lot, to the north of the property purchased, for the purpose of driving trucks and equipment over such lot when entering and leaving the north doors of the building purchased by plaintiff. This use by plaintiff continued for certain periods until April, 1969, when the owner who had acquired the lot to the north of plaintiff’s property informed plaintiff that such owner intended to use the lot north of plaintiff’s property for the purpose of constructing a building across from the north doors of plaintiff’s building to within three feet of plaintiff’s property line. Plaintiff sought an injunction to prevent defendant from building in the area which plaintiff had been using on the theory that plaintiff had obtained an easement by prescription to the use of a portion of the adjoining lot (50 by 75 feet). Following a hearing in that cause, the trial court in Rock Island County dismissed the complaint.

The president of plaintiff corporation (under a long-term contract) purchased lots 16, 17 and 18 in a subdivision in the City of Moline. Adjoining lot 18 on the north was lot 19, which was followed by lots 20 through 22. Each lot was approximately 50 feet north and south by 150 feet east and west. The Rita contract was made with persons named Finkelstein, who, at the time of the making of the contract in 1945, owned lots 16 through 22. At the time when plaintiff took possession, in January 1946, there was a small 27 by 72-foot building on the northeast corner of lot 18, about 6% feet south of lot 19. While Michael Rita testified that when he purchased the building in 1945, there were doors on the north end of the building, he answered, on cross-examination, that he did not recall sliding doors at that location. There was a conflict of evidence as to whether there were any doors on the north side of the building at the time. It was, however, clearly shown that there were doors on the east side of the building which opened out onto an alley (not the property over which an easement is claimed).

The evidence also disclosed that in January 1946, before any vehicle could enter through the north door of the building on lot 18, a two-foot dip just north of the doors had to be filled in with dirt. This filling was done by Rita and his employee. At this time in 1946, lot 19 was vacant, and Rita and his employee completed the approach to the north door of the building on lot 18 by putting down cinders and gravel to make a roadway all the way east to the alley. There was no conversation or agreement, written or oral, between plaintiff and the owner of lot 19 at the time plaintiff began use of lot 19 in 1946. This use of lot 19 was continued at various times for various activities. There is some conflict as to the extent of plaintiff’s use of the building and the adjoining lot and as to the continuity of such use during these years. From 1946 to 1953 the building which stood on lot 18 was used for painting and repairing house trailers. The trailers were brought in after being pulled across lot 19. In 1954 Rita added a concrete building on the west side of the original building. From 1956 to 1961 plaintiff made the most extensive use of his buildings, and of lot 19 at a time when plaintiff constructed house trailers. The trailers would be started in the east building and taken across lot 19 and pulled into the building on the west. From 1961 through 1964, the building housed a used car business and there was no manufacturing in any of the buildings. While Rita testified that they regularly used the north doors from 1961 through 1969, there was testimony to the contrary. A man who operated a pattern shop on the lots to the north of lot 19 testified that during the period between 1967 and 1969 he only saw the north doors of plaintiff’s building open two or three times a year.

The owner of lot 19 (prior to the sale to defendant Robert Bartlett) testified that in the last 5 or 6 years before trial he had never seen the north doors open on the Rita building. Such owner, Mr. Sandberg, also testified that in 1964 Rita tried to buy from him that portion of lot 19 just north of his building. In 1965 Rita asked Sandberg if Sandberg would allow a lessee of Rita to use the east-west driveway on lot 19, and Sandberg agreed to such use. At one time in the period between 1965 and 1969, Rita had delivery trucks, people working, and trailers all over lot 19 and even in front of Sandberg’s building on the west part of lots 21 and 22. Sandberg finally told Rita to get them off the driveway but that Rita could park on the factory lot. Rita testified that he never talked to anyone about the use of lot 19 during the time he used it. Another witness who walked past the Rita building on his way to work daily testified that he observed the use of the north doors in the Rita building and that use had been made of such doors for 15 years, with the longest period of nonuse being about a month. An attorney, who examined the abstract in 1969 when defendant Bartlett purchased lot 19, testified that he made a physical examination of the property to determine whether use was being made of lot 19 by the plaintiff, and from the weeds on lot 19, it did not appear that any use was being made of lot 19.

Rita obtained his deed to lot 18 in 1954. In 1948, prior to the conveyance to Rita, the Finkelsteins sold lots 19 through 22 to Sandberg. In May 1967, Robert Gardner purchased lots 19 through 22 from the Sandbergs and lot 19 at this time was grown up with trees and brush in the back of the Rita building. Gardner had to cut these down and bulldoze the area before he could even see the Rita building on the north part of lot 22.

In March 1969, Rita considered a sale of his buildings. A real estate dealer brought a Mr. Robinson to look , at the Rita buildings. When Robinson was informed that Rita’s north line was just a few feet from the north doors of the two buildings, Robinson said he must have assurance that he could use these north doors before he purchased the property. Rita took Robinson to see Mr. Gardner who owned lot 19. Rita told Robinson that Gardner was a “good guy” and that he thought Robinson could make an arrangement for the use of lot 19. After explaining what Mr. Robinson wanted, Rita left Robinson alone with Mr. Gardner. Robinson made an offer for Rita’s property and a part of the Gardner property, and both offers were rejected. Robinson then purchased lots 19 through 22 from Gardner, with title being placed in the names of defendants, Robert Bartlett, and First National Bank of Moline. Two days before closing the transaction, Robinson, Gardner, and an attorney went to talk with Rita and told him they planned a building 200 by 60 feet on lot 19, which would come within three feet of Rita’s north line. Rita made no claim at this time of a right to use lot 19, although there was some discussion by Rita that he would be blocked off from his north doors. Robinson offered to consider a door in their new building through which plaintiff could enter and it was stated by Robinson “maybe I’ll work out something else if you need them desperately,” referring to the north doors. This was the last discussion between plaintiff and defendant’s representative. After purchase of the property, defendants graded lot 19 in such a manner that plaintiff could not drive out the north doors. Plaintiff sought an injunction to establish a 50 by 75 foot easement across the east end of lot 19. As indicated previously, the trial court, after hearing all of the evidence, dismissed the complaint.

In determining whether the trial court correctly dismissed plaintiff’s complaint, following the hearing on the merits, it is necessary to determine whether plaintiff acquired an easement by prescription over a portion of defendants’ lot 19 by plaintiff’s use as established in the record. There appears to be no dispute between plaintiff and defendant as to the applicable law in the case before us. As stated by the court in Poulos v. F. H. Hill Co., Inc., 401 Ill 204, 214, 81 NE2d 854:

“. . . to establish a way by prescription the use must be adverse, uninterrupted, exclusive, continuous and under a claim of right for a period of twenty years.”

Where the use is merely permissive (from the owner) it is not adverse and furnishes no basis upon which a right of way by prescription can rest (Waller v. Hildebrecht, 295 Ill 116, 123, 128 NE 807). Essentially, to establish an easement by prescription, the use must be of such character as is required to establish title to land in fee by adverse possession (Rose v. City of Farmington, 196 Ill 226, 227, 63 NE 631).

The question of establishment of an easement by prescription is nearly always a question of fact (Petersen v. Corrubia, 21 Ill2d 525, 532, 173 NE2d 499). In the Petersen case the court stated specifically (at page 532) that whether there was an adverse use of the way under claim of right for a period of 20 years, or whether the use of the way is only permissive is almost wholly a question of fact, and, unless the evidence is clearly to the contrary, “a court will presume that a parol agreement to impress property with a servitude was made with knowledge of the provisions of the Statute of Frauds, and was therefore intended as a license only and not as an easement or other interest in the land itself.”

It is contended by the plaintiff that a prescriptive right has been established in accordance with the language of Petersen v. Corrubia, supra. In that case the court stated (at page 531):

“There is, however, a rebuttable presumption of a grant or adverse right present where a way has been used openly, uninterruptedly, continuously and exclusively for more than 20 years and the origin of such way is not shown. In the absence of evidence tending to show the use of the way to have arisen from a license or other special indulgence which is either revocable or terminable, the conclusion is that it has grown out of a grant by the owner of the land, and has been exercised under a title so derived. The facts to admit of such presumption, however, are not presumed but must be established by the greater weight of the evidence.”

Such presumption is prima facie and may be rebutted. This presumption, to which appellant refers, however, is not applicable to situations where there is use of vacant land. As stated in Waller v. Hildebrecht, 295 Ill 116,123,128 NE 807:

“The use of vacant, uninclosed and unoccupied land will be presumed to be by permission and not adverse.”

The court in Poulos v. F. H. Hill Co., Inc., 401 Ill 204, at 214, 81 NE2d 854, in discussing the presumption relating to vacant land stated:

“The use of vacant and unoccupied land is presumed to be permissive and not adverse, and permissive use can never ripen into prescription no matter how long such permissive use exists. The burden in most cases of establishing the prescriptive right rests on the party pleading it and all elements must be distinctly and clearly proven.”

In view of the facts in the instant case, we do not believe that the trial court was in error in finding that plaintiff did not obtain an easement by prescription. At the time plaintiff acquired lot 18 in 1945, the adjoining lot 19 was vacant and unoccupied and remained in this condition when plaintiff began using lot 19 as a driveway. There was, therefore,, no presumption that such use amounted to a claim of an easement. As we have indicated heretofore, presumption of a grant of an easement does not come into operation where the original use is of vacant or unoccupied land. Likewise, for such presumption of an easement to arise, the courts state that there should be “no evidence to show the origin of the way.” In the case before us, there was evidence to show the origin of plaintiff’s alleged easement by prescription. Shortly after plaintiff purchased lot 18, he leveled the ground on lot 19 north of lot 18 and began to use the north doors of the building standing on lot 18. The building on lot 18 had doors to the east opening on the alley which allowed plaintiff access to his building. The origin of the way in the instant case is known, and such fact, coupled with the fact that this original use was of vacant and unoccupied land, makes it clear that in the instant case there is no presumption of an easement arising from the mere use by plaintiff. Since there was no presumption of such easement to aid proof of plaintiff, the burden was on plaintiff to show the existence of each of the elements needed to establish the easement by prescription. We do not believe plaintiff sustained such burden, and we conclude that the trial court correctly dismissed the complaint.

The record also fails to show a sufficient adverse use by plaintiff, since there was no evidence that Rita ever claimed a right to the use of lot 19. No conversation was shown to have occurred when plaintiff began using lot 19 in January 1946. There is no evidence of any statement by Rita or an agent of the corporation that such right to use lot 19 was claimed. In 1965, Rita asked the owner of lot 19, Mr. Sandberg, if a lessee of Rita could use a portion of lot 19. There was also evidence that, at one time in 1964, Rita tried to buy a portion of lot 19. There was also evidence that at one time during the period from 1965 to 1969, Rita had trucks, trailers and individuals working for him on all the lots from 19 through 22 with the owner’s permission, and that the owner of lot 19 requested Rita to remove them, which he did. Also, in 1969, when Mr. Robinson talked to Rita about buying lot 18 from Rita, Rita told Robinson he would introduce him to Robert Gardner who then owned lot 19, and that Robinson might be able to work something out with Gardner as to lot 19. All of these acts and statements by Rita were properly considered by the court in support of the conclusion that Rita had claimed no right to the use of lot 19. Since the evidence did not affirmatively show that Rita claimed such right, it is clear that the trial court could properly have concluded that the use by Rita was not adverse.

It is contended that the acquiescence by defendants and their predecessors in title showed that an easement by prescription had been obtained. On the basis of the record, the acquiescence by the owners of lot 19 would be consistent with a permissive use by plaintiff, even if plaintiff had shown a continuous use of lot 19 for over 20 years. As stated in Waller v. Hildebrecht, 295 Ill 116,124,128 NE 807:

“A mere permissive use never ripens into a prescriptive right. It must appear the use was enjoyed under such circumstances as to indicate that it was claimed as a right and was not regarded by the parties as a mere privilege or license, revocable at the pleasure of the owner of the soil. The use of a way without objection or hindrance is not inconsistent with use by permission. (Chicago, Burlington and Quincy Railroad Co. v. Ives, 202 Ill 69; Stewart v. Andrews, 239 id. 186.) It is a matter of common observation that the public makes use of any open, uninclosed space which affords a more convenient way of reaching any given place than the regular way would, and it would be contrary to established legal principles, and to natural justice as well, to allow the public, under such circumstances and by the mere acquiescence of the owner, to acquire the permanent right of way.”

In the case before us, the evidence did not establish that the use by plaintiff was adverse. A permissive use never ripens into a prescriptive right (Waller v. Hildebrecht, 295 Ill 116, 128 NE 807; Monroe v. Shrake, 376 Ill 253, 33 NE2d 459; Rose v. City of Farmington, 196 Ill 226, 63 NE 631). Plaintiff contends that the construction of a new building in 1954 and 1956 on his north line, with doors opening on lot 19, showed that he claimed an adverse use. We do not believe that this is sufficient to change plaintiff’s use from a permissive to an adverse use, since there was no evidence that he claimed a right to use lot 19, as indicated by his conversation with Mr. Robinson some ten years after the construction of such building. Mere acquiescence of the owner of lot 19 in such use would not be inconsistent with a permissive use.

In summary, plaintiff contends that his use alone of lot 19 over a 20-year period was sufficient. Even assuming such uninterrupted use (which is questioned), plaintiff failed to show that such use was ever adverse. In fact, such use was presumed to be permissive use, and a permissive use will never ripen into an easement by prescription. As stated in Rose v. City of Farmington, 196 Ill 226, at 229, 63 NE 631:

“There is nothing in the testimony to show that appellant or any of her grantors, or anyone else, ever claimed an adverse right to the use of this supposed way. All the testimony is consistent with the permissive use of the same because the owner did not need it for his own use, — was disposed to be accommodating to his neighbors.”

Plaintiff also contends that he obtained an easement by implication over lot 19. As stated in Walker v. Witt, 4 Ill2d 16, 21, 12 NE2d 175, easements by implication require certain elements as follows: In 1945 there was no evidence to show that any use of the building on lot 18 also necessarily involved driving over lot 19. There were doors on the east side of the building on lot 18 when plaintiff purchased it, and there was even a question as to whether any doors existed on the north side of the building on lot 18 at the time of purchase. There was no long-continued obvious and manifest use of lot 19 in conjunction with the use of the building on lot 18, which must have been intended to be permanent.

“(1) there must be a separation of title; (2) before the separation occurs, the use which would give rise to an easement must have been so long continued, obvious or manifest to that degree which will show the use was meant to be permanent; and (3) it is necessary that the use of the claimed easement be essential to the beneficial enjoyment of the land granted or retained.”

On the basis of an examination of the entire record, therefore, we conclude that the judgment of the Circuit Court of Rock Island County was proper and should be affirmed.

Affirmed.

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


author: MR. PRESIDING JUSTICE DEMPSEY

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Alfred Bracey, Defendant-Appellant.
    Gen. No. 53,147.
    First District, Third Division.
    September 17, 1970.
    Rehearing denied October 8, 1970.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, and Kenneth L. Gillis, Special Assistant State’s Attorney, of counsel), for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

In a non jury trial the defendant, Alfred Bracey, was found guilty of armed robbery. After a hearing in mitigation and aggravation which disclosed five prior convictions — one of them for robbery — he was sentenced to the penitentiary for a term of two to seven years. He contends that there is a reasonable doubt that he was the perpetrator of the offense, that the procedure leading to his identification was improperly conducted and that, due to his vague and uncertain identification, his alibi evidence should have resulted in his acquittal.

John Becola, an insurance agent, testified that on the morning of June 17, 1967, he made a collection on the 12th floor of an apartment building in Chicago. After making the collection he entered the elevator; as he turned around and faced the door, a man came in, took out a knife with a thick, long blade, and said, “This is a stickup. Play it cool.” When the elevator door closed behind him, the man took $92 from Becola’s pockets. The elevator descended several floors and stopped. The man pushed Becola off and continued to ride down.

Becola estimated that the encounter lasted about a minute and a half. He testified that the lighting in the elevator was good and that he saw the robber’s face very clearly when he entered the elevator and during the robbery. Becola immediately reported the robbery to the police and described his assailant as about 28 years of age, between 5' 9" and 5' 10" tall, weighing about 140 pounds and light complexioned. At his trial eight months later, the defendant testified that he was 29 years of age, between 5' 9" and 5' 10" tall and weighed approximately 150 pounds. He described his complexion as dark brown.

Approximately a month after the robbery, Becola was called by the police and informed that they had arrested someone for some other incident who more or less fit the description which he had given them of his assailant. When Becola arrived at the station, he was taken to a large room in which there were civilians and policemen. Bracey and some other people were brought to the room. Becola recognized Bracey right away. Becola sat in the room several minutes and watched from a distance, while other people talked with Bracey. He saw him walk and noticed the same mannerisms he had noticed when Bracey walked into the elevator. He also noted that he was wearing the same light jacket. Later he was taken toward Bracey who was in the back of the room. He was asked if Bracey looked familiar. He replied, “Yes, sir, that is the man that held me up.” Braeey, who was standing between two policemen larger than he, denied knowing him.

Becola identified Braeey in court as his assailant and stated that a knife, which had been found in the defendant’s possession, was the same or similar to the one he had seen during the robbery.

Braeey denied the robbery. He testified that he and his friend Albert Brooks spent the night of June 16, 1967, at the apartment of another friend. The apartment was located about two blocks from where the robbery took place. On the morning of June 17th, he and Brooks went to an outdoor art show at Lake Meadows Shopping Mall, on Chicago’s south side. They arrived approximately at 9:00 a. m. and left at 1:30 p. m. While they were there, Brooks purchased some clothing at one of the stores in the mall. After they left the art show, they bought some liquor and returned to the apartment. Bracey’s testimony as to the events and activities of June 17th was corroborated by Brooks.

Braeey testified that the knife which he had when arrested had been found by him in late June or early July on a bus. He also called attention to an “L-shaped” scar which extended from his right eye down to his lip and then back toward his ear. He said he received the scar in a 1958 automobile accident and underwent facial surgery in 1960 in an attempt to conceal it.

Becola did not mention the scar in his description of the robber and this is the chief ground for the defendant’s contention that there is a reasonable doubt of his guilt. He further points out that Becola did not mention that the robber had a moustache. As to the moustache, it appears that the defendant had one at the time of his trial, but there is no testimony in the record that he had one at the time of the robbery. As to the scar, Becola’s identification was not vitiated by his failure to notice it. It was not so clearly visible that it could not have gone unnoticed. The trial court examined the scar and stated:

“In regards to the scar, I would note that I do not believe that the scar is quite as noticeable as counsel would indicate, it certainly is discernible under inspection, but not clearly observable unless particular attention is called to it.”

The defendant subsumes his alibi with his identification and claims that because of the uncertainty of the latter the former should not have been disregarded. First, Becola’s identification was not uncertain. Second, the fact that the alibi testimony was not believed does not mean that it was disregarded. The trial judge considered this testimony and commented at the conclusion of the trial that he was skeptical of Brooks’ corroborative testimony. There is no obligation for a trial court to believe alibi testimony over positive identification, even though such testimony may have been given by a larger number of witnesses. People v. Setzke, 22 Ill2d 582,177 NE2d 168 (1961).

The testimony of one witness is sufficient to support a conviction if it is positive and the witness credible. People v. Uselding, 107 Ill App2d 305, 247 NE2d 35 (1969). In a nonjury trial it is the responsibility of the trial judge to determine the credibility of the witnesses and the weight to be given their testimony, and unless the evidence is so unsatisfactory as to raise a reasonable doubt of the defendant’s guilt, the finding of the trial judge will not be disturbed. People v. Vail, 74 Ill App2d 308, 221 NE2d 165 (1966). The evidence was sufficient to establish the defendant’s guilt beyond a reasonable doubt.

It is argued that the defendant was denied procedural due process by the circumstances of his post-arrest identification. He claims that the procedure was so unnecessarily suggestive that it induced a mistaken identification both at the police station and at the trial. See Stovall v. Denno, 388 US 293,87 S Ct 1967 (1967).

The argument starts with the telephone call that Becola received from the police saying that they had a suspect in custody who fitted the description he had given them. Whenever a victim of a crime is asked to come to a police station to look over persons arrested, there is an unavoidable intimation that the police have arrested someone who might be the perpetrator of the crime. People v. McIntosh, 82 Ill App2d 90, 227 NE2d 76 (1967). The record affords no support to the implication that Becola was influenced either by their call or by what took place at the station. At the station he watched the defendant from a distance and saw him walk and heard him speak; he especially noted the defendant’s “features”; the only question posed to him by the police as they brought him close to the defendant was whether he had seen the man before. There were other civilians in the room while he was observing the defendant but it is not clear whether they were victims of crimes or additional suspects. Even so, the identification procedure fell short of a lineup. Although it was not the most desirable method of identification, it did not make Becola’s in-court identification inadmissible. The law does not require that there always must be a lineup to insure correct identification of a defendant. People, v. Brinkley, 33 Ill2d 403, 211 NE2d 730 (1965). The identification in the police station was preceded by the observation of the defendant at the time of the robbery. Becola saw Bracey under adequate lighting, in an enclosed elevator, for a sufficient period of time. He heard his voice, saw him walk and noted his features, physical characteristics and clothing. The detailed description he gave the police conformed almost exactly to that which Bracey furnished of himself at the trial. Further corroborative evidence was Becola’s recognition of the knife found on Bracey when he was arrested. These facts disclose an uninfluenced observation of the defendant prior to and independent of the intervening confrontation at the police station which was an adequate foundation to support the in-court identification. See People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152 (1969); People v. Nelson, 40 Ill2d 146, 238 NE2d 378 (1968); People v. Owens, 126 Ill App2d 379, 261 NE2d 785 (1970). The trial court did not err in denying the defendant’s motion to suppress the in-court identification.

The defendant’s not being represented by counsel at the police station confrontation was not a violation of due process. United States v. Wade, 388 US 218, 87 S Ct 1926 (1967) and Gilbert v. California, 388 US 263, 87 S Ct 1951 (1967) hold that a lineup is a critical stage of the prosecution and that a suspect placed in a lineup is entitled to the assistance of counsel. These cases have been construed as applying only to post-indictment confrontations. People v. Palmer, 41 Ill2d 571, 244 NE2d 173 (1969). The police station encounter between Becola and Bracey occurred, of course, prior to the latter’s indictment.

The judgment is affirmed.

Affirmed.

SCHWARTZ and McNAMARA, JJ., concur.


text:
    Mary Lou Heinrich, Plaintiff-Appellee, v. Illinois Department of Public Aid and Harold O. Swank, Director, Defendants-Appellants.
    Gen. No. 54,409.
    First District, Third Division.
    September 17, 1970.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Herman T. Tavins, Assistant Attorneys General, of counsel), for appellants.
    Stanley A. Bass and William P. Schwarz, of Chicago, for appellee.
   MR. PRESIDING JUSTICE DEMPSEY

delivered the opinion of the court.

The plaintiff, Mary Lou Heinrich, a recipient under the program for Aid to Families with Dependent Children (AFDC), brought this action under the Administrative Review Act. She contested a decision of the Illinois Department of Public Aid which approved deductions from the assistance payments made to her each month; the deductions were for the purpose of recovering an emergency clothing allowance granted to her by the department. The Circuit Court reversed the department and the department appeals. The plaintiff cross-appeals from that part of the court order denying her a retroactive restoration of two deductions already withheld.

In November 1968, Mary Lou Heinrich was twenty-five years of age, the mother of two children, six and two years old, and had been an AFDC recipient since June 1964. Included in the grant which she received monthly was a sum which was intended to cover the clothing requirements of her children and herself. In November 1968, she requested a special emergency clothing allowance and submitted to the Cook County Department of Public Aid an itemized list of wearing apparel which she contended was needed to properly clothe her family. She protested that all of the items she had were either worn out or outgrown, that she had never been issued a special clothing allowance and had not been able to buy enough clothing on her regular monthly clothing allowance. After consultation with her caseworker which resulted in a reduction in the number of items requested, Mrs. Heinrich was informed that she would be given a special allowance in the amount of $208.27.

A condition attached to the allowance was that the $208.27 was to be repaid over a twelve-month period by the deduction of $17.36 each month from her welfare grant. Mrs. Heinrich agreed to the condition with the understanding that it would be appealed to the State Department of Public Aid. In her appeal she contended that her regular monthly clothing allowancé was inadequate and that the deduction would reduce her family’s standard of living below the minimum standard set by the department.

Mrs. Heinrich and representatives of the County department testified at the hearing and exhibits were introduced into evidence. The hearing officer recommended affirmance of the County department’s ruling. The recommendation was approved by the director of the State department who wrote Mrs. Heinrich a letter stating in detail the reasons for his decision. He explained that it was the policy of the department to require deductions when special emergency allowances were granted for items which were in the recipient’s regular budget; that the department set standards which provided a livelihood compatible with health and well-being and that, once having issued public aid funds in conformity with these standards, to reissue the same allowance for the same period would result in duplicate assistance. Upon Mrs. Heinrich’s appeal to the Circuit Court, a preliminary injunction was entered prohibiting further deductions from her welfare check. Up to the time of the court’s order in March 1969, the department had taken two monthly deductions which the court did not order restored. The court’s final order was to the same effect as the preliminary injunction.

The Department of Public Aid possesses statutory authorization to “establish standards by which need for public aid will be determined and amend such standards from time to time as circumstances may require.” El Rev Stats 1967, c 23, § 12-4.11. Pursuant to this authorization, the department has promulgated regulations, including regulations regarding the disbursement of emergency clothing allowances. The pertinent regulations in effect at the time Mrs. Heinrich sought an emergency allowance were these:

“Emergency Need for Clothing. The cost of providing or replacing essential clothing is budgeted when:
“Clothing has been destroyed by fire, flood or other disaster;
“There is insufficient clothing at the time of the initial grant or within 90 days thereafter;
“Clothing allowances have not been used to meet need because of poor management and immediate action is taken to help the recipient plan expenditures wisely.
a
• • •
a
“Budget Adjustment: Where the recipient has failed to use his regular clothing allowance to purchase essential clothing, the entire amount allowed for emergency need for clothing is to be deducted from the grant. The amount may be pro-rated over a period not to exceed 12 months.” Illinois Department of Public Aid Categorical Assistance Manual, Chapter 1000, Topic 1006.3.

The department’s Categorical Assistance Manual also provided that, if emergency grants were made for items included within the regular grant, an adjustment reflecting the duplicate assistance would be made in future grants:

“When there is emergency need for an item for which an allowance was included in the grant, assistance may be issued in an amount to meet this need.
“An adjustment in the grant for the following month or months to deduct assistance payments which constitute duplicate assistance is required.” Chapter 1500, Topic 1501.1.

The testimony before the State hearing officer disclosed that the special disbursal to Mrs. Heinrich was not made for any of the permissible reasons listed in Topic 1006.3 of the department’s regulations: it was not made to replace clothing destroyed by fire, flood or other disaster; it was not made within 90 days of her initial grant and it was not made because she had failed to use her regular clothing allowance to purchase essential clothing or because she had mismanaged the funds previously disbursed to her. Further, the evidence showed that the emergency allowance was granted without verification of her needs or inspection of the clothing she had on hand. The testimony revealed that she joined an organization which promised that if she demonstrated with the other members she could get clothing for herself and children. The group “demonstrated” at the local public aid office and the clothing lists, furnished by the organization and checked by each demonstrator, were collected by a supervisor who turned them over to caseworkers. Mrs. Heinrich’s caseworker sent for her, went over her list and revised it from $263.25 to $208.27.

Whether the County department responded to a genuine need or yielded to pressure is immaterial to the issue before this court. The regular clothing allowance budgeted for the Heinrich family starting in January 1969 was $17.33 per month or $207.96 for the year. The emergency allowance of $208.27, in effect, allotted them a year’s supply of clothing in advance. But the allowance was not granted as an advancement. It was granted, presumedly, because the County department determined that Mrs. Heinrich and her children had an urgent need for additional clothing. The condition that accompanied the emergency allowance — the deduction of $17.36 per month from her regular monthly grant for the twelve months of 1969 — eliminated her clothing allowance for those months. The deduction was in accord with Topic 150L1 of the department’s regulations. The issue, however, is whether the deduction was in accord with the law governing public aid.

The Illinois legislature has singled out three instances when a recipient’s aid grant may be reduced:

“Aid payments shall not be reduced except for changes in (1) the cost of items included in the standards, (2) the expenses of the recipient, or (3) the income or resources available to the recipient.” Ill Rev Stats 1967, c 23, § 12-4.11.

None of these instances occurred in Mrs. Heinrich’s case. The deductions the department made in her welfare grant constituted a reduction in aid, but did not come within the statutory standards for making such a reduction. A reduction in aid to compensate for emergency assistance contravenes the Illinois statute. Therefore, the judgment of the Circuit Court disallowing future deductions is affirmed.

Our decision disallowing a deduction when an emergency allowance is granted is consonant with the present policy of the Illinois Department of Public Aid. The department’s Official Bulletin No. 70.28(A), issued May 22, 1970, directs that “amounts, authorized to meet emergency need for . . . clothing . . . will not be deducted from future grants to recipients.” Illinois, as do all other states, participates in the federal Aid to Families with Dependent Children program. 42 USC, § 601 et seq. This program is financed jointly by the United States and the several states. Each state is free to determine the standard of need of the eligible families within its borders but this standard must be compatible with the federal statutes because of the federal funds allocated to the state. Dandridge v. Williams, 397 US 471, — L Ed2d — (1970); King v. Smith, 392 US 309, 20 L Ed2d 1118 (1968). The May 1970 directive of the Illinois Department, drawn to meet the requirements of the United States Department of Health, Education and Welfare, orders county departments to discontinue deductions made because the recipient has received duplicate assistance. Under this regulation, the problem posed by the instant case is not likely to arise again.

There remains to be considered the plaintiff’s cross-appeal regarding the restoration of the monthly payments withheld by the department. These two deductions were made in accordance with the department’s policy which we have found violative of the statutes of our State. Consistent with this finding we must reverse the trial court’s order which held that the deductions previously taken from the plaintiff’s regular monthly grant would not have to be returned. Because of this holding the trial court did not reach another question which has arisen between the parties: whether the department’s appropriation would permit direct reimbursement or whether the plaintiff would have to proceed through the Court of Claims. The cause will be remanded for the resolution of this question and for the entry of an order consistent with this opinion.

Affirmed in part, reversed in part and remanded with directions.

SCHWARTZ and McNAMARA, JJ., concur.


author: STOUDER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Jack Eugene Lampson, Defendant-Appellant.
    Gen. No. 69-109.
    Third District.
    September 17, 1970.
    John Donald O’Shea, of East Moline, for appellant.
    James N. DeWulf, State’s Attorney of Rock Island County, of Rock Island, for appellee.
   STOUDER, J.

Defendant, Jack Eugene Lampson, has appealed from a judgment and sentence of the Circuit Court of Rock Island County entered on the verdict of a jury finding defendant guilty of burglary. About 4:15 a. m. on the morning of June 19, 1969, an automatic alarm connected to the Rock Island Police Department indicated that a break-in might have occurred at Gene-O’s Tavern located in Rock Island. Officer Hird was the first officer to arrive on the scene, and as he approached the rear of the building, he saw a man emerging therefrom. Hird stopped his car, gave chase, fired two shots at the fleeing man but lost him after the suspect had turned a corner. As Hird started chasing the suspect, he heard the sound of shattering glass and it was at this juncture that Officer Rice arrived on the scene.

Rice approached the tavern and the street in front of the tavern. As he neared the tavern, the large front plate glass window of the tavern was shattered from the inside and a person emerged from the tavern through the hole in the broken window. The person was wearing a light green shirt and khaki trousers, and after emerging through the window, the suspect ran across the street. Rice stopped his car almost in front of the tavern and pursued the suspect. Rice fired five shots both as warning shots and in the direction of the fleeing suspect. After the suspect had rounded a corner, Rice lost track of him but was advised by some unidentified person that someone had run between the buildings into the backyard. Rice went into the backyard area, where after searching with his flashlight, the defendant was discovered in the bushes. He was ordered to come out and did so, at which time he was placed under arrest. He was wearing khaki pants, light green shirt and cotton gloves. Officer Hird, after losing the suspect he was chasing, came to the aid of Rice and they were both present at the time and place of defendant’s apprehension, which was about a block and a quarter from Gene-O’s Tavern.

According to other police officers called to testify by defendant, another person, Leroy Drain, was arrested for the burglary at 4:30 a. m., the arrest taking place a short distance from the tavern. The details leading to the arrest of Drain were described by the officers, but it further appeared that the charges against Drain were dropped at the preliminary hearing.

In seeking to reverse the judgment of the trial court, defendant has made several assignments of error principally relating to the admission of evidence. The first assignment of error relates to the testimony of officers Rice, Hird, Barker and Smiley.

According to the testimony of Hird and Rice, after defendant was arrested he was handcuffed and “Miranda’d” (advised of his constitutional rights as required by Miranda v. Arizona, 384 US 436, 16 L Ed2d 694). The defendant indicated that he did not wish to make a statement and that he wanted to talk with a lawyer. As they were walking back toward Gene-O’s Tavern, Rice told defendant he was lucky he did not get shot. The defendant replied that he wished he had been, because he was no good.

Later in the morning at about 8:45, defendant was brought to the Detective Bureau of the Rock Island Police Department and according to the testimony of Officers Barker and Smiley, defendant was again advised of his rights. Defendant again indicated he did not want to make a statement and that he wanted to talk to an attorney, naming one known to both officers. Defendant was not questioned, but neither was he returned to his cell nor were any arrangements made for his consultation with an attorney. Defendant remained in the Detective Bureau or area for 30 to 40 minutes and at some time during this period, he made an observation that if he committed the burglary then Drain did not, and if Drain committed the burglary, then he did not.

Defendant argues that the above testimony violated his constitutional rights, as well as depriving him of a fundamentally fair trial. According to defendant, such testimony was prejudicially erroneous because the testimony advised the jury that the defendant had refused to make a statement and had asked for an attorney, neither of which facts could have any bearing on defendant’s guilt or innocence.

It is our view that the trial court did commit prejudicial error in permitting the testimony referred to. In People v. Rothe, 358 Ill 52, 192 NE 777, the Court held that the admission of the testimony of a police officer was prejudicially erroneous when such testimony referred to the refusal of the defendant to make, a statement at the police station. Although such error was only one of several errors which resulted in reversal of the conviction in Rothe, we believe the reason for the rule in Rothe is even more important today. Rothe was decided prior to Miranda v. Arizona, supra, and at the time no advice to the defendant of his right to remain silent was required. Since such advice is now required in all cases of custodial interrogation, the defendant would, indeed, be afforded little protection if his exercise of an admitted right could then be turned into an inference of guilt. To do so would, in effect, be the same as permitting the State to comment on a defendant’s failure to testify in his own behalf, a practice condemned In People v. Chellew, 104 Ill App2d 100, 243 NE2d 49.

For the foregoing reason, the judgment of the Circuit Court of Rock Island County is reversed and remanded with directions that defendant be granted a new trial.

Reversed and remanded with directions.

RYAN, P. J. and ALLOY, J., concur.


author: MR. JUSTICE SEIDENFELD

text:
    City of Rockford, a Municipal Corporation, Plaintiff-Appellant, v. Carl T. Sallee and Virginia Sallee, Defendants-Appellees.
    Gen. No. 69-199.
    Second District.
    September 17, 1970.

      John W. Nielsen, of Rockford, for appellant.

      Reno, Zahm, Folgate and Skolrood, of Rockford, for appellees.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

The city sought an injunction against defendants’ use of a former church building as a warehouse, and against the use of the former parsonage as both a home and a business office. This appeal is from the denial of the injunction.

The property was purchased by the defendants in 1966. The lot containing the church building was then zoned B-Residential, the lot containing the residence was then zoned A-Residential, both under the county zoning ordinances. The church building was immediately used to store materials. The Sallees had either actual or constructive knowledge of the existing zoning classification prior to their purchase.

Some ten days after purchasing the property, defendants applied for a county building permit to construct a loading dock and overhead garage door. Mr. Sallee told the employees of the County Building Department of his intended use of the church building as a warehouse in connection with his floor-tile installation business and his intended use of the parsonage as both a residence and a business office. He was erroneously told by a county zoning employee that such use was permissible as long as the defendants did not sell any goods at retail. A permit was granted to build an 18-inch platform and an access door at the rear of the building.

In April of 1967, the property was annexed into the City of Rockford and placed in an A-Residential use district by City Ordinance. In March of 1968, the City issued a building permit to remove the church steeple.

Also in March of 1968, the Sallees moved their residence into the former parsonage. On or about April 9th, 1968, the City Building Inspector, responding to a complaint, inspected the premises and informed the defendants of a zoning violation involving the use of the church as a warehouse which defendants were ordered to cease.

No evidence of the cost of the modifications made to the premises was offered.

The evidence of business activity on the premises included testimony by Mr. Sallee that two customers per month came to his home to see samples and that such demonstrations resulted in approximately ten percent of his gross business. There was further evidence that two panel trucks were used in connection with the business, carrying the legend “Ted Sallee’s Floor Contractors.” One truck remained on the premises, the other was driven to the home of defendants’ one full-time employee each night.

The decree contained findings by the trial court that defendants’ alteration of the former church building was made in reliance upon the issuance of a County Building Permit and that the defendants made no misrepresentations to secure the permit. The court further found that defendants conducted certain limited business activity, such as record-keeping, telephone conversations and demonstrations of materials and color samples to an average of two customers per month, resulting in approximately ten percent of defendants’ gross business; that no business signs were used; and that no retail or wholesale sales were made from the property. The court decreed that the use of the premises did not constitute a nuisance, that use of the residence constituted a “home-occupation” exception under the A-Residential zoning regulations of the City of Rockford, that the use of the church was lawfully nonconforming and that the city was equitably estopped from interfering with the warehouse use.

The city urges that the basis for equitable estoppel must be an act of the city and not merely that of a ministerial employee; that the use of a home by defendants does not come within the home-occupation exemption; and that there is no lawful nonconforming use under the facts of the case.

It appears from the record that the classification of Lot 16, under the County Zoning Ordinance, permitted the use of the property for church purposes but excluded its use as a warehouse, and the trial court so found. A lawful nonconforming use cannot be predicated upon the act of the County’s ministerial officers in permitting the construction of a loading dock and an overhead garage door in violation of the zoning ordinance; rather, a nonconforming use must be predicated upon the continuation of a lawful use existing at the time of the adoption of the ordinance. Eggert v. Board of Appeals of City of Chicago, 29 Ill2d 591, 596, 195 NE2d 164 (1963); Exchange Nat. Bank of Chicago v. Village of Skokie, 86 Ill App2d 408, 412, 229 NE2d 913 (1967). See also 6 ALR2d 956, 960, 962, Annotated; County of Cook v. Triem Steel & Processing, Inc., 19 Ill App2d 126, 129,153 NE2d 277 (1958).

Under the great weight of authority the illegal issuance of a permit by a ministerial officer does not, as a general rule, estop a municipality from relying on the illegality, notwithstanding the fact that the applicant may have expended money or incurred obligations in good faith and in substantial reliance upon the permit. 1 ALR2d 338, 351, Annotated; 6 ALR2d, Annotated, supra, at page 965. See J. Burton Co. v. City of Chicago, 236 Ill 383, 391, 86 NE 93 (1908); Wise v. City of Chicago, 183 Ill App 215, 220 (1913); Johnson v. City of Chicago, 107 Ill App2d 182, 190, 246 NE2d 115 (1969); Sinclair Refining Co. v. City of Chicago, 246 Ill App 152, 161, 162 (1927).

Defendants rely upon People ex rel. American Nat. Bank v. Smith, 110 Ill App2d 354, 249 NE2d 232 (1969), and cases therein cited, in support of the argument that the city is equitably estopped to urge the invalidity of either the County building permit, or the City’s permit to raze the steeple issued subsequent to the annexation of the property into the city. It is argued that equitable estoppel involves a determination of the facts present in the particular case before it. Thus, defendants urge that the issuance of a permit, the giving of full information to the County zoning employees, the modifications made to the building, the lapse of more than two years between the acquisition of the County zoning permit and the challenge by the city, and the evidence that the present use was not adverse to public health, safety, morals and general welfare, support the judgment below. The city also relies upon the opinion in Smith and points out that there must be a showing of positive acts of municipal officials which induced action by the plaintiff in order to support the doctrine of equitable estoppel.

While the court in Smith, at pages 366, 367, recognized that the doctrine of equitable estoppel may be invoked where action has been induced by the conduct of municipal officials, and where, in the absence of such relief, a municipality would be permitted to stultify itself by retracting what its agents had done, it also declared, that estoppel could not be based upon issuance of a permit through an administrative mistake of a member of the municipal staff involving no policy decisions.

The trial court here found that it was inequitable to deny defendants’ use of the premises in the manner shown because they had substantially changed their position in good faith and with the apparent acquiescence of both the county and the city officials over the period of time involved. We are of the opinion, however, that the court misconceives its authority to apply general principles of equity to the case.

The more precise and limited principles of the doctrine of equitable estoppel rather must be applied, and we find no acts of government authority in the record sufficient to invoke the doctrine. Mere nonaction by a city is insufficient to invoke estoppel. Gregory v. City of Wheaton, 23 Ill2d 402, 408, 178 NE2d 358 (1961). See also Haba v. Cuff (Ohio App), 201 NE2d 343, 346, 347 (1963).

Moreover, essential elements of the doctrine of equitable estoppel against the city have not been proven. Because the defendants had already occupied and used the church premises in a manner proscribed by both the county and city zoning ordinances prior to the grant of the city permit to remove the steeple, it cannot logically be contended that the defendants relied on the city permit in their use of the church as a storage facility.

We reject the contention that by its grant of the steeple removal permit the city acquiesced in the defendants’ use of the church as a warehouse. The record is devoid of any indication that the city was thereby made aware of defendants’ use of the church in a proscribed manner and sanctioned such use when the permit issued.

The major thrust of defendants’ argument is that they were entitled to rely upon the issuance of the county permit because they in good faith substantially changed their position by reason of its issuance. However, good faith reliance is substantially diminished by their actual or constructive knowledge of the residential classification of the property before application was made for the permit. Further, the record is silent as to the amount of expenditures made by defendants upon such alleged reliance.

The use of Lot 18 was found by the court below to be within the city zoning ordinance as a “home-occupation,” an exception permitted in a residential area. We are of the opinion that this was erroneous. It is not argued that such use was nonconforming inasmuch as defendants did not begin to reside in the parsonage and use it in connection with their business activities until after the annexation by the city. The city ordinance provided an exception to the A-Residence district for “accessory uses incidental to the above uses, including private garages, home occupations, and signs advertising premises for sale or rent, but not the conduct of any retail or wholesale business or manufacture.” A further provision of the zoning ordinance defined home occupation as “any gainful occupation or profession engaged in by an occupant of a dwelling unit as a use which is incidental to the use of the dwelling unit for residential purposes.” The ordinance further provided that the occupation must be carried on wholly within the principal building or within a building accessory thereto and only by members of the family occupying the premises. It also provided that no article should be sold or offered for sale on the premises except such as is produced by the occupation on the premises. A further provision defined accessory buildings as buildings which must be on the same lot as the main building and the use of which is clearly incidental to use of a main building.

Defendants’ use and business activities could not be said to be within such exception. The business activity was not conducted solely within the residence or from an accessory building on the same lot; the business involved a regular outside employee, not a member of the family; the articles offered for sale were not those produced on the premises; and it could not be said that the use was such as would be customarily incidental to the residential use of the dwelling. Village of Riverside v. Kuhne, 335 Ill App 547, 560-562, 82 NE2d 500 (1948); Nelson American Law of Zoning, § 10:02; City of Muskegon Heights v. Wilson, 363 Mich 363, 109 NW2d 768, 770-771 (1961); Maurer v. Snyder (Md), 87 A2d 612, 618 (1952); Perron v. City of Concord, 102 NH 32,150 A2d 403, 405, 406 (1959).

In our view of the case, we do not reach the issue which the plaintiff has raised on the pleadings.

We reverse and remand with directions to grant the municipality’s prayer for injunction.

Reversed and remanded with directions.

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

       Defendants have argued that the County Zoning employee had the power to construe the provisions of the zoning ordinance, relying on People ex rel. Interchemical Corp. v. Chicago, 29 Ill 2d 446, 194 NE2d 199 (1963). However, this rule is subject to the proviso that the order of the ministerial officer is not in contravention of ordinances existing at the time of the decision. (See the opinion at page 448.)


author: RICHARD MILLS, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Oliver, Defendant-Appellant.
    Gen. No. 11,177.
    Fourth District.
    September 17, 1970.
    Rehearing denied October 15, 1970.

      Bruce I. Gordon, of Springfield, for appellant.
    Richard A. Hollis, State’s Attorney of Sangamon County, of Springfield (D. Bradley Blodgett, Assistant State’s Attorney, of counsel), for appellee.
   RICHARD MILLS, J.,

delivered the opinion of the court.

At approximately 4:00 a. m. one morning, the attendant at a service station in Springfield observed an automobile in the station area, saw the defendant get out of the car, proceed to open a vending machine at the station, then empty the coin box into his right-hand coat pocket. The attendant noticed a female passenger in the automobile and also observed the license number of the car as the defendant drove away. He immediately called the police, reported the incident and gave a description of the automobile.

The desk sergeant instantly put out a call to all cars, and within a few minutes defendant’s automobile was apprehended by the police several blocks from the service station. The police then ordered the defendant to drive his automobile to the downtown police station, preceded by one police car and followed by another. Officer Bryant was in the squad car behind and noticed defendant take his hands off the steering wheel and make movements to shove something under the front seat. The defendant’s car was parked in front of the police station and he and his female companion, Carlene Rogers, were taken inside and searched. Oliver had $13.15 in change on his person, and the girl had over $30 in change in her purse.

During the booking process, Miss Rogers excused herself and was escorted to the ladies’ room by a female attendant. After her charge utilized the facilities, the matron heard a noise in a wastepaper can near Miss Rogers that sounded like metal hitting against metal. Upon checking the trash container, the matron discovered a ring of keys, one of which it later developed would open the vending machine at the station in question.

Meanwhile, back on the street, also during the booking process, Officer Bryant took his flashlight and shined it through the window into the defendant’s automobile. Sticking out from underneath the driver’s seat was a portion of a gun barrel. He then opened the car door, and as he pulled the barrel of the pistol out from under the seat, a ring of keys also came out.

Oliver was subsequently indicted for possession of burglary tools and misdemeanor theft. A jury found him guilty on both counts, probation was denied and he was sentenced to the penitentiary for 1-2 years. The trial court had denied Oliver’s motion for a new trial which was grounded essentially upon the five points relied upon in this appeal. We now proceed to consider in like order the errors urged.

Point One: Is a “vending machine” a “depository” within the animus of the Criminal Code? (Ill Rev Stats 1967, c 38, § 19-2). The pertinent statutory language reads as follows:

“§ 19-2. Possession of Burglary Tools.) Whoever possesses any key, tool, instrument, device, or any explosive, suitable for use in breaking into a building, housetrailer, watercraft, aircraft, motor vehicle as defined in the Hlinois Motor Vehicle Law, approved July 11, 1957, as amended, railroad car, or any depository designed for the safekeeping of property, or any part thereof, with intent to enter any such place and with intent to commit therein a felony or theft shall be imprisoned in the penitentiary from one to 2 years.” (The salient phrase has been emphasized.)

Oliver argues that we are impaled on the horns of a dilemma: since the General Assembly failed to specifically include vending machines among the classes of objects protected by that section, the “plain meaning” excludes vending machines; on the other hand, if we try to include vending machines under “depository,” we are also effectively throttled because a penal statute must be construed strictly in favor of the accused, and such attempted inclusion would traverse the literal meaning of “depository,” which is a place for the keeping of a “deposit,” which in turn is a “naked bailment of goods to be kept for the depositor without reward.” Black’s Law Dictionary, Revised Fourth Edition (1968), pp 526-528.

Let us dispose of the left horn first: The sine qua non of defendant’s argument is that since “vending machines” were well known to the General Assembly at the time of enactment and not specifically included within the protected classes of section 19-2, the doctrine expressio unius est exclusio alterius applies. Mr. Oliver is mistaken. The doctrine that applies is expressio eorum quae tacite insunt nihil operatur.

The other horn: Defendant cites People v. Kirkrand, 397 Ill 588, 74 NE2d 813, for the authority that a criminal statute must be construed strictly in favor of the accused. We find no quarrel with this maxim, but point out that Kirkrand continues to say: “The object, however, in construing criminal and penal, as well as all other statutes, is to ascertain the legislative intent. The rules as to strict or literal construction are of value only as assisting in finding the real meaning of the statute.” (P 815.) As for the “bailment” argument, we view it as void of virtue. The popular definition of “depository” is “a place where anything is lodged for safekeeping.” Webster’s Dictionary, Unabridged, Second Edition. Ergo, a reading of section 19-2 in such context makes it beyond dispute that the legislature intended a vending machine be included in the protected miscellany class. It would seem both a travesty on common sense and a prostitution of logic to hold otherwise.

Furthermore, we conclude that this question has been laid to rest by the Illinois Supreme Court in People v. Weaver, 41 Ill2d 434, 243 NE2d 245. There, Weaver was prosecuted for this same offense based upon possession of a key that fit the vending machine burglarized. After reciting the visceral portions of section 19-2, the court concluded:

“Again we find that the State’s evidence was sufficient to justify the jury in concluding that all elements of the statutory offense had been established beyond a reasonable doubt. A key had been used to open the door of the vending machine at which the defendant was standing. A key that opened the door of that machine was found in the police car where the defendant had been squirming to the extent of putting one foot on the dashboard. The proof went further, and established that a bag of keys suitable for similar purposes was found in the car in which the defendant rode to the laundromat.”

Although the exact issue of whether a vending machine is a depository designed for the safekeeping of property was not raised on review in Weaver, by the affirmance of the jury conviction therein and the above finding that all elements of the statutory offense were proved leads us to the inescapable conclusion that possession of keys designed for introgression of vending machines with intent to enter and commit therein a theft does constitute the crime of possession of burglary tools.

Point Two: He argues that the search of his automobile occurred without a warrant and without his consent at the very moment that he was being booked in the station, and that the gun and keys there seized should have been suppressed. Under the facts herein, this is a totally hollow argument. The question of illegal search is not even remotely involved here, since the uncontroverted evidence was that a portion of the gun barrel was in plain view. “It is well-settled law that observation of that which is open to view does not constitute a search, so that seizure of articles in plain view cannot be considered unreasonable.” People v. Tate, 38 Ill2d 184, 230 NE2d 697, 698. And in People v. Elmore, 28 Ill2d 263, 192 NE2d 219, 220, it was held that where evidence was visible through the car windows, no search was involved, because no search was necessary, since “A search implies a prying into hidden places for that which is concealed and it is not a search to observe that which is open to view.” There was no error here.

Point Three: Oliver attacks the chain of evidence and continuity of possession of the ring of keys found in his automobile and the keys found in the washroom waste can. The challenge falls. An examination of the record reflects that Officer Bryant positively identified both sets of keys as those taken that night from Oliver’s car and from the restroom trash can. Furthermore, cross-examination by Oliver’s counsel failed to impeach the testimony — in fact, it reinforced the positive identification by Officer Bryant of both exhibits. There was no error whatever in admitting these exhibits into evidence. People v. Fisher, 340 Ill 216, 236, 237, 172 NE 743; People v. Dilworth, 67 Ill App2d 384, 214 NE2d 9, 12.

Point Four: Defendant assails his conviction on the ground that exclusive possession of burglary tools must be established, that the only key capable of opening the subject vending machine was on the key ring found in the ladies’ restroom, and that the instruction to the jury that possession by a coeonspirator could be construed as possession by the defendant constituted reversible error. This position is untenable. The record is clear and reflects abundant grounds to resolve that Oliver and Miss Rogers were entangled in a joint misadventure, a common criminal affair. Illinois law is decisive in this regard, holding that “If the circumstances show a common design to engage in an unlawful transaction, whatever one does in furtherance of it is the act of the other.” People v. Glass, 16 Ill2d 595, 158 NE2d 639, 641. Under the posture of the evidence, we can come to no other conclusion but that adequate possession of the key ring by Oliver was proved and the court’s instruction to the jury was proper.

Point Five: Lastly, appellant questions the discretion exercised by the trial judge in refusing to declare a mistrial during the voir dire examination. We are at a loss to know exactly what transpired during the voir dire, since no record was made of that portion of the trial. The problem apparently centered around a single venireman, who asked to have the statement of the case read back to him, then said that he had read newspaper accounts of the case and that the defendant sounded to him like a “two-time loser.” From what record we have, it was not until after the entire voir dire was concluded, and all twelve members of the jury selected, that counsel and the court went on the record outside the presence of the jury. The trial judge, in denying the motion for mistrial, said that he thought the juror meant that there were two counts in the indictment. We have no way of knowing at what juncture in the total voir dire the alleged remark took place, or whether other jurors even heard the remark, or what other questions were posed to other jurors regarding the effect of the remark, or what examination the court may have undertaken to ascertain the impartiality of the other jurors, or whether the court admonished the others to disregard the remarks. There appears of record no “bystanders bill,” no stipulation between counsel as to what actually took place, no other matter of record which can assist us. In such a polemic vacuum, it would be sheer and pure surmise as to what really occurred, and without a record there is no way of knowing whether prejudice attached. The trial judge heard all that transpired in his courtroom, observed the veniremen, participated in the voir dire and was in a position to personally satisfy himself as to the impartiality of each juror. And one thing of record is certain: the prospective juror in question was excused. It is axiomatic that a declaration of mistrial lies within the sound discretion of the trial court, and unless error is clearly shown by the record, such discretion will not be second-guessed by a reviewing court. There is no record, or acceptable substitute, here; consequently, there is nothing to second-guess.

The verdict of the jury in a criminal case will not be set aside on appeal unless that verdict is “palpably contrary to the weight of the evidence or so unsatisfactory as to justify a reasonable doubt of defendants’ guilt.” People v. Peto, 38 Ill2d 45, 230 NE2d 236, 238. Upon the tenor of all the evidence in this case, Oliver’s guilt is persuasively demonstrated and we cannot entertain argument that any test for reversal has here been met.

The judgment below is affirmed.

Affirmed.

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


author: TRAPP, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William Henry Nelson, Defendant-Appellant.
    Gen. No. 11,188.
    Fourth District;
    September 17, 1970.

      Donald B. Mackay, Public Defender of McLean County, of Bloomington, for appellant.
    Paul R. Welch, State’s Attorney of McLean County, of Bloomington, for appellee.
   TRAPP, J.

A jury convicted defendant of theft over $150, c 38, § 16-1, Ill Rev Stats 1967. He was sentenced to a term of 5 to 10 years. Upon appeal, defendant contends that he was entitled to discharge for failure to bring him to trial upon this charge within 120 days.

The facts are to be examined in the context of chapter 38, § 103-5 (e), Ill Rev Stats 1967, which in substance provides that if a person is simultaneously in custody upon more than one charge pending in the same county, he must be tried upon at least one of the charges within 120 days, and upon all other charges pending within 120 days of the termination of the trial of the charge first prosecuted.

On August 28, 1968, defendant was taken into custody upon a "charge of theft and also upon a charge of tampering with public records in violation of chapter 38, § 32-8, Ill Rev Stats 1967. Different transactions were concerned. As to the charge of tampering, the proceedings were by criminal complaint. An indictment, No. 68-706Y, charging the theft, was returned on September 13, 1968. Defendant was represented at all times by the public defender who prosecutes this appeal.

On December 11th, defendant was brought to trial upon the complaint for tampering. There was objection to such trial upon the ground that the offense must be prosecuted by indictment, and that there had been no waiver of grand jury. The trial proceeded following stipulation of counsel that participation in such jury trial would not bar the raising of the issue of the court’s jurisdiction on appeal. In the event, a mistrial was declared when the jury was unable to reach a verdict. On December 20, 1968, without notice to defendant, the State’s Attorney moved to dismiss the indictment for theft, No. 68-706Y. Such motion prayed that the defendant be discharged on this indictment, and the order of dismissal expressly ordered such discharge. We need not examine the effect, if any, of such portion of the order. The defendant remained in custody upon the charge of tampering as to which there had been a mistrial. The statutory period of 120 days expired on December 29,1968.

On December 31,1968, a new indictment, No. 68-965Y, was returned upon the offense of theft. Defendant was thereafter arraigned and was tried on such indictment on April 17,1969. Prior to trial defendant filed a motion for discharge under chapter 38, § 103-5, Ill Rev Stats 1967. Such motion was denied.

The motion to dismiss by the State’s Attorney alleged a substantial defect in the original indictment, No. 68-706Y, in that it averred that the several items stolen were the property of one person, but that the evidence would show that at least one item of the stolen articles was, in fact, owned by a second person. Defendant argues that reindictment was not necessary upon the charge of theft for the reason that the possession of the questioned item by the person named as owner in the first indictment was paramount to that of the defendant so that a conviction of theft could be sustained. The sufficiency of the first indictment is immaterial unless there is some showing that the dismissal and reindictment was solely for the purpose of evading the statute. People v. Stuckey, 83 Ill App2d 137, 227 NE2d 135 and The People v. Hamby, 27 Ill2d 493, 190 NE2d 289. Other than the argument noted, there is no showing that the prosecution was seeking to evade the statute at issue.

The defendant agrees that the trial on the indictment for theft was within 120 days of the termination by mistrial of the charge of tampering. It is urged, however, that chapter 38, § 103-5 (e), concerning a person in custody upon simultaneous charges is not operative in this case. The argued hypothesis is that the offense of tampering found in chapter 38, § 32-8, provides a possible penitentiary sentence so that there must be an indictment, or a waiver thereof, for the prosecution of the offense. Ergo, since there was no indictment upon the charge of tampering, there was, in fact, no trial upon that offense within the meaning of the statute affecting a person in custody upon simultaneous charges and its provision permitting a period of 120 days for the trial of a charge following the prior trial of a concurrently pending charge.

For us to declare that a trial upon the charge of tampering did not exist in fact would require a collateral review of a case which has not been appealed and is not before us except as a matter of argument. This we cannot do.

The stipulation made in the trial for tampering, which purports to reserve for appeal the question of jurisdiction of the court to try the tampering charge without indictment, may be effective as to the trial of that case, but it does not relate to this case on appeal.

The judgment is affirmed.

Affirmed.

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