author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. LeRoy Knox, Defendant-Appellant.
    Gen. No. 68-195.
    Second District.
    November 13, 1969.

      John T. Beynon, Public Defender, of Rockford, and John F. McNamara, Assistant Public Defender, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, and John C. Tower, Assistant State’s Attorney, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

A jury found the defendant, LeRoy Knox, guilty of the offense of voluntary manslaughter in connection with the death of Claude Spearman. The court entered a judgment of conviction on the verdict, denied the defendant’s petition for release on probation and sentenced him to a term of not less than three nor more than ten years in the penitentiary.

The defendant appealed, urging that the jury was not properly instructed by the trial court; that the State failed to prove the defendant guilty of the charge against him beyond a reasonable doubt; and that, in the alternative, the court erred in denying the defendant’s petition for release on probation, or in imposing a sentence of three to ten years.

The death of Claude Spearman resulted from multiple gunshot wounds which took place on March 2, 1968. Spearman came to the defendant’s residence that evening looking for JoAnn Hunter, his estranged girl friend, who at the time was hiding in defendant’s bedroom. Spearman had been drinking and was armed with the gun which caused his death. He also carried additional rounds of live ammunition. He had come to the defendant’s house on prior occasions looking for JoAnn, and at the time in question, he accused the defendant of knowing where she was.

The defendant attempted to get Spearman to leave and put away his gun. Spearman agreed to leave the house if the defendant would go to a nearby bar with him. The defendant, who was not fully dressed, went to his bedroom to get his shoes. Spearman followed him into the bedroom and saw JoAnn’s clothes laying on a laundry hamper. He then drew his gun and threatened to kill the defendant, and did fire a shot which missed him.

Spearman then said he would give the defendant to the count of three to tell him where JoAnn was, or he would kill him. At the count of two, JoAnn, who was under the bed, jumped from her hiding place and yelled, “Here I am, Claude Lee.” Spearman then began to curse and yell, and told the defendant to turn on the light. The latter said there was none, but Spearman, nevertheless, renewed his request. The defendant then moved toward Spearman, lunged at him, and knocked the gun out of his hand and onto the floor. As JoAnn fled from the room and the house, both men were trying to get the gun.

At this point a witness, Pearl Hawks, came to the door of the defendant’s house. She had heard the struggle and fighting from the outside. She testified that she saw the defendant and Spearman standing close together facing each other in the hallway; that they had been scuffling; that the defendant had the gun in his right hand and was yelling, “I’ll kill you”; that three or four shots were fired, both men fell to the floor, and another shot was fired. Pearl Hawks also testified that the defendant’s hand came up with the gun; that he hit Spearman; and that he then stood up and kicked him.

Dr. Keith M. Truemner, who performed the autopsy, testified as to the position of the wounds on the body. The State contends that such evidence tended to show the number of shots fired and the relative position of the deceased and the defendant when the shots were fired; and that such facts were important to the issue of whether or not the defendant was acting in self-defense when he shot the deceased.

The defendant contends that the instruction on circumstantial evidence was improper. The instruction read:

“The court instructs the jury that circumstantial evidence in criminal cases is the proof of such facts and circumstances connected with or surrounding the commission of the crime charged as tend to show the guilt or innocence of the party charged, and if the facts and circumstances shown by the evidence in this case are sufficient to satisfy the jury of the guilt of the defendant beyond a reasonable doubt, then such evidence is sufficient to authorize the jury in finding such defendant guilty. The law authorizes a conviction whenever there is sufficient legal evidence to show the defendant’s guilt beyond a reasonable doubt, and circumstantial evidence is legal evidence.”

The testimony of the doctor clearly was admissible. The People v. Ciucci, 8 Ill2d 619, 625, 626, 137 NE2d 40 (1956); The People v. Kreutzer, 354 Ill 430, 437, 188 NE 422 (1933); 14A ILP, Criminal Law, § 346. Also, we think it was proper to give an instruction on circumstantial evidence, based upon the testimony of the doctor. The defendant contends that even if an instruction on circumstantial evidence should have been given, the instruction is an incorrect or confusing statement of the law. The defendant suggests that Blinois Pattern Jury Instructions, Criminal No. 3.02, is a correct statement of the law and indicates it is the type of instruction which should have been given. It states:

“Circumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of (the) (a) defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.”

We agree that the IPI instruction is much to be preferred. However, the IPI instructions were not available when this case was tried. While we do not approve of the form of instruction as given, we conclude that it was not so misleading as to warrant a reversal. Likewise, neither do we believe that it caused a different verdict than otherwise would have been rendered by the jury, nor that any defects in the instruction constituted prejudicial error. The People v. Ciucci, supra, 628; People v. Gonzales, 107 Ill App2d 44, 55, 245 NE2d 791 (1969).

Also, at the conference, the defendant did not object to the instruction on the basis that it was an improper statement of the law. The only objection was that there was no evidence on which to justify such instruction. Defects in instructions are waived unless objection is made thereto in the trial court. People v. Kelley, 105 Ill App2d 481, 485, 244 NE2d 818 (1969).

The only exception to the foregoing rule is that substantial defects are not waived in a criminal case by a failure to make a timely objection, if the interest of justice so requires. Supreme Court Rule 451 (Ill Rev Stats 1967, c 110A, par 451). Supreme Court Rule 451 places upon one, who seeks, in the reviewing court, to avoid a waiver for failure to make a specific objection, the burden of establishing: (a) that the defects in the instruction are substantial, and (b) that the giving of the instruction resulted in denying to the defendant a fair trial and justice. People v. Price, 96 Ill App2d 86, 95, 238 NE2d 881 (1968). We do not believe that the defendant has sustained that burden in the case at bar.

The defendant also contends that the giving of People’s Instruction No. 10 was error. This instruction reads:

“The Court instructs the jury that any free and voluntary statements or admissions made by the defendant as to any material fact in this case is competent evidence against the defendant, and it is the duty of the jury to consider such statements or admissions in connection with all other evidence in the case.”

He contends that this instruction leaves to the jury the determination of the material facts of the case. It is true that the determination of questions of law is the province of the court, and that instructions, which leave to the jury the determination of what are the material issues in a criminal case, are erroneous. The People v. Scott, 401 Ill 80, 85, 81 NE2d 426 (1948); The People v. Arcabascio, 395 Ill 487, 499, 70 NE2d 608 (1947). However, it is for the jury to determine facts of the case, and where the instructions, as a whole, inform the jury of the facts which are essential to the proof of the commission of a specific crime, any error in giving an instruction — such as People’s Instruction No. 10 — will not be considered so prejudicial as to warrant a reversal.

We agree that IPI, Criminal No. 3.06, is a better instruction on this issue. However, in the case at bar, the instructions as a whole, indicate that the jury was properly instructed as to what elements were material in determining the innocence or guilt of the defendant, and they were not so numerous and complex as to confuse and mislead the jury. Again, the defendant did not object to the instruction on the ground which he now asserts. His only objection at the conference was that the instruction was “very poor.”

The defendant also objects to People’s Instruction No. 11 which was, essentially, the language of section 7-1 of c 38, Ill Rev Stats 1967, relating to the justifiable use of force against another. The instruction was in the exact statutory language, except that it did not contain the last phrase, “or the commission of a forcible felony.” The defendant here agrees that the latter phrase was not applicable and should not have been included.

However, the defendant argues that the first sentence of the statute, and instruction, pertains to that use of force which is justified in defending oneself against another’s imminent use of unlawful force, and the second sentence deals with the justifiable use of a force which is likely to cause death or great bodily harm. He contends that only the second sentence is applicable to this case and that it was error to include the first sentence in the instruction. We cannot agree! The second sentence is in the nature of a restriction and it limits what otherwise might be a justifiable force under the first sentence. One may use force against another when and to the extent that he reasonably believes it necessary to defend himself against another’s imminent use of unlawful force, but he may use such force as is likely to cause death or great bodily harm to another, only if he reasonably believes it necessary to prevent imminent death or great bodily harm to himself or another.

Thus, where, as here, the use of force by the defendant was a gun at close range, the statute and instruction advise that this is justifiable only if he believes it necessary to avoid imminent death or great bodily harm to himself. It may be appropriate under proper circumstances to give only the first sentence of the statute in an instruction — such as where the force used to defend was not likely to kill or cause great bodily harm to another — but no circumstances have been called to our attention wherein it would be proper to give only the second sentence. See: Committee Note IPL, Criminal No. 24.06. Thus, we conclude that the trial court properly gave the People’s instruction No. 11 and properly refused to give the defendant’s tendered instruction on this issue.

The defendant also contends that the State failed to prove him guilty beyond a reasonable doubt. Where, as in the case at bar, the truth lay within a controverted set of facts which were before the jury for determination, and where sufficient evidence is offered by the State to establish guilt beyond a reasonable doubt, and such evidence is believed by the jury, we will not reverse the jury’s verdict. The People v. Goodpaster, 35 Ill2d 478, 480, 221 NE2d 251 (1966); 15 ILP, Criminal Law, § 911.

The jury had to determine from the facts before it whether the defendant’s belief that he had to use deadly force against Spearman was reasonable. The jury could well have believed from the testimony of Pearl Hawks, as well as from other portions of the evidence— which indicated that the defendant had disarmed Spear-man — that Spearman was then begging for his life as the then armed defendant threatened him; that the hunter had become the hunted; that the struggle for control of the gun had ended; and that the defendant then shot Spearman five times, then hit and kicked him. The jury may well have concluded that the defendant’s conduct, under these circumstances, indicated a mind bent on revenge, or retaliation rather than on extrication from reasonably apparent danger. People v. Dorsey, 98 Ill App2d 259, 268, 269, 240 NE2d 391 (1968). The jury’s finding that the defendant was guilty, beyond a reasonable doubt of voluntary manslaughter, was not contrary to the manifest weight of the evidence.

The defendant further contends that the trial court erred when it denied his petition for probation, and, alternatively, that the court erred in imposing a sentence of from three to ten years in the penitentiary. Within the limits of the statute relating to probation (Ill Rev Stats 1967, c 38, par 117-1), the granting or denying of probation is within the discretion of the trial court. It is not within our discretion to determine whether or not the trial court should have granted probation. It is for us to determine the narrow question of whether the trial court, in fact, exercised discretion, or acted in an arbitrary manner in denying probation. People v. McAndrew, 96 Ill App2d 441, 444, 445, 239 NE2d 314 (1968). It appears from the record that the court heard the testimony at the trial, and, in addition, had before it the probation officer’s report, and had the benefit of a full hearing on the matter of probation. There is no affirmative showing that the court acted arbitrarily or discriminatorily, and under these circumstances the action of the trial court will not be disturbed. The People v. Pelikan, 6 Ill2d 275, 277, 278, 128 NE2d 741 (1955).

As to the propriety of the sentence imposed, we note that the crime of which the defendant was convicted, carries as its penalty an indeterminative sentence of from one to twenty years. Although it appears that the defendant had no criminal record prior to this offense, nevertheless, it does not appear that the trial court abused its discretion in imposing the sentence in question.

We considered a similar contention in People v. Juve, 106 Ill App2d 421, 245 NE2d 293 (1969) and therein stated, at pages 428, 429, that when the sentence imposed is within the limits prescribed by the legislature, we may not disturb the sentence unless it constitutes a great departure from the fundamental law and its spirit and purpose, or is manifestly disproportionate to the nature of the offense.

We cannot say that the trial court abused its discretion in imposing the sentence in question. Accordingly, the conviction and sentence of the defendant is affirmed.

Judgment affirmed.

MORAN, P. J. and SEIDENFELD, J., concur.


source: Caselaw Access Project

author: JUSTICE MORAN.

license: Public Domain

text:
    Eva Reak, Plaintiff-Appellant, v. First State Bank of Elizabethtown, an Illinois Corporation, Dorothy Barnerd and Troy Barnerd, Defendants-Appellees.
    Gen. No. 68-61. (Abstract of Decision.)
    Fifth District.
    November 17, 1969.
    Rehearing denied January 7, 1970.

      J. D. Quarant, of Elizabethtown, for appellant; Harris, Holbrook & Lambert, of Marion, for appellees Dorothy and Troy Bamerd, and James G. Gullett, of Elizabethtown, for appellee First State Bank of Elizabethtown.
   Opinion by

JUSTICE MORAN.

Not to be published in full.


author: TRAPP, P. J.

text:
    Irene Cain, Plaintiff-Appellant, v. Lawrence Hougham, Executor of the Will of Lula B. Hougham, Deceased, Lucille Hougham and Lawrence Hougham, Conservator of the Estate of Lucille Hougham, an Incompetent, Defendants-Appellees.
    Gen. No. 11,077.
    Fourth District.
    November 17, 1969.
    Rehearing denied December 16, 1969.

      Herrick, Rudasill & Moss, of Clinton (Ray Moss, of counsel), for appellant.
    Dunn, Dunn, Brady, Goebel, Ulbrich & Hayes, of Bloomington (William M. Goebel, of counsel), for appellees.
   TRAPP, P. J.

The court heard evidence upon a complaint for specific performance of an alleged agreement to make a will devising real estate. It included therein a claim for compensation for services alleged to have been performed for and in behalf of the decedent, and for and in behalf of decedent’s daughter. The latter’s conservator is joined as a defendant but the complaint makes no further allegations concerning an alleged liability in the incompetent’s estate. The abstract does not suggest that any claims for such personal services were filed in the respective estates prior to bringing this action for specific performance. The court granted defendants’ motion for judgment at the close of plaintiff’s evidence. Plaintiff appeals.

The decedent, Lula B. Hougham, died July 29, 1963, at the age of 83, leaving a will executed in 1949, through which her daughter, Lucille, received all of the decedent’s property. The real estate at issue was a house occupied by decedent and her daughter. Mrs. Hougham had a heart condition and was ill a large portion of the last ten years of her life. The daughter was an epileptic and required considerable care.

The plaintiff, Irene Cain, lived about 20 miles from Bloomington on a farm with her husband and family. She began doing housework for Mrs. Hougham in the early 1950’s, and gradually spent more time there. Commencing about 1960 or 1961, Mrs. Cain was spending approximately three-fourths of her time at the Hougham home. Her most recent rate of compensation was $15 per day.

Thelma Johnson, a neighbor of Mrs. Hougham for 25 years, first knew Irene Cain in 1962 or 1963. She saw her hanging up clothes, doing housework, taking the Houghams shopping in the car, and cooking meals. Mrs. Johnson stayed at the home on one occasion when Lucille was taken to the hospital, and on one occasion when Mrs. Hougham was taken to the hospital. She said Irene Cain would come and stay nights and spend parts of weeks, or weeks there. Mrs. Hougham’s health was frail. Lucille Hougham had to be watched constantly. Mrs. Johnson said on one occasion Mrs. Hougham said she didn’t know what she would do without plaintiff to help.

Mary A. Nobling, who is a niece of Mrs. Hougham, visited her every four to six months and more often a year before her death. When she visited her, Irene Cain and Lucille Hougham were there. Mrs. Cain was taking care of Mrs. Hougham and Lucille Hougham, doing housework and cooking. Mrs. Hougham and Lucille were not able to take care of themselves physically. Mrs. Nobling had a conversation with Mrs. Hougham in her home in the spring of the year, out of the presence of Mrs. Cain and Lucille. She testified that Mrs. Hougham talked about how good Irene had been to her. She said she was going to change her will and said she was going to leave her house to Irene in payment for how good she had been to her. She testified Mrs. Hougham had said this on many occasions.

Mrs. Nobling also testified that at one time Mrs. Hougham said she was going to leave everything to the Houghams, that they were going to take Lucille into their home. She said Arlene Bane (Hougham) had agreed to this. Mrs. Nobling testified Lula Hougham and Lucille Hougham were in the hospital frequently in the last ten years of Mrs. Hougham’s life. On redirect examination, Mrs. Nobling said the conversation about leaving the property to the Houghams was twenty years before. She also retracted an answer which had indicated this conversation was during the last three years of Lula Hougham’s life.

A janitor, Shirley Rusk, said on one occasion, that Mrs. Lula Hougham said that maybe someday she would leave the house to him but he understood it as a joke. Edward Jackson, a painting contractor, testified that Irene Cain acted as housekeeper and nurse for Mrs. Hougham. He said that in 1956, 1957 or 1958, she wanted him and his wife to move in with her and take care of her, and in return he was to receive the house on Franklin Street. He did not accept the offer. He did know that she made the same offer to Irene Cain. He recalled occasions when Lucille had seizures, and occasions when both Mrs. Hougham and Lucille were bedfast with Mrs. Cain taking care of them. He did not know whether the offer to Mrs. Cain included her moving into the Hougham home. He did not know whether Irene Cain even accepted Mrs. Hougham’s offer.

Jane Ann Thomas, who is Irene Cain’s daughter, testified that her mother was at the Hougham home three-fourths of the time between 1961 and 1963. Her mother stayed overnight much of the time. During the spring of 1963, Lucille Hougham lived at Irene Cain’s home. After Mrs. Hougham’s death in July, 1963, Mrs. Cain visited Lucille Hougham in a nursing home frequently.

Helen Bryan, a self-employed nurse, stated she took turns with Mrs. Cain, staying with Lucille Hougham when Mrs. Hougham was in the hospital. Helen Bryan was employed there the last three years of Mrs. Hougham’s life. Mrs. Cain was there more frequently than Helen Bryan. Mrs. Hougham told Helen Bryan that Mrs. Cain would be well remembered.

Courts of equity will enforce a contract to make a will where it is based upon a valid consideration. However, the evidence of the contract must be clear and convincing. Jatcko v. Hoppe, 7 Ill2d 479, 131 NE2d 84; Harper v. Kennedy, 15 Ill2d 46 on 52, 153 NE2d 801.

Here the evidence falls short in several respects. At best, it appears to be testimony of Mary A. Nobling that Mrs. Hougham, out of the presence of Irene Cain, said she was going to change her will to leave her house to Irene Cain in payment of how good she had been to her, and the testimony of Edward Jackson that Mrs. Hougham had made the same offer to Mrs. Cain to leave her the house that Mrs. Hougham had made to Mr. Jackson. Mr. Jackson’s testimony concerns conversations between Mrs. Hougham and himself, and does not relate directly to a statement from Mrs. Hougham to Mrs. Cain. There is no evidence that Mrs. Cain had a specific offer, or that she accepted it. In the case of Mr. Jackson, the proposition required that he and his wife move in with Mrs. Hougham. This is why he refused the proposition. He did not know whether this requirement was in the proposition he was told by Mrs. Hougham had been made to Mrs. Cain.

There is no evidence that Mrs. Cain changed her position in reference to the alleged proposition. She did not leave her home and family and move in with Mrs. Hougham.

The evidence fails to show a definite promise, an acceptance or a change of position resulting from the promise. Mrs. Cain was paid $15 a day for her services, and there is no showing of any additional services that were to be performed for the additional consideration.

The cases of Jatcko v. Hoppe, 7 Ill2d 479, 131 NE2d 84 and Chabot v. Kelly, 72 Ill App2d 150, 218 NE2d 868, cited by plaintiff, are very clear cases and differ in several respects from the present one.

In the Jatcko case, plaintiff and her husband moved in with decedent, cared for her for 15 years, built several rooms on decedent’s house, all without pay. Decedent did tell several people she was leaving the house to her daughter, the plaintiff. She did make a will leaving the house to the daughter. The case, therefore, was one of a definite promise which had been reduced to writing in the form of a will, a promise communicated to numerous people, a response to the promise by change of position of the plaintiff, including fifteen years of service without pay.

In the Chabot case, plaintiff managed a boarding house and cared for decedent without pay. She advanced $3,600, almost half of the purchase price, to buy the property. Decedent originally made a will leaving her the property. Decedent told a number of people that he Was leaving the property to plaintiff in return for her services.

Finally, there is nothing in the evidence to show that plaintiff was not willing to perform the services for the compensation of $15 per day. In cases of an alleged oral contract to make a will it is ordinarily required that the facts should be such that they cannot reasonably be harmonized with any other theory than that the work was done for the alleged promise. Hutton v. Busaytis, 326 Ill 453 on 461, 158 NE 156.

Plaintiff alleges error in denying admission into evidence of plaintiff’s Exhibit No. 1, a document produced pursuant to Rule 214. It consisted of certain notes in the handwriting of decedent’s attorney who had died prior to these proceedings. It is argued that such notes support plaintiff’s contention as to the intent of decedent to devise the property to plaintiff. The relevance of such notes is remote and speculative, both in time and substance, and the trial court did not err in refusing admission into evidence for want of foundation.

We do not find any evidence to support the claim of 140.5 days service without pay.

The guardian ad litem appointed by the trial court has filed a petition for the allowance of a guardian ad litem fee upon this appeal. It appears that he has, heretofore, been allowed a fee for services as guardian ad litem in the Circuit Court of McLean County.

This Court is without knowledge of the fees customarily charged by members of the Bar of McLean County. It further does not appear that notice has been given to the parties concerned for purposes of presenting evidence upon the nature and extent of the services performed and the value thereof. It is, therefore, proper that the award of a fee for the services of the guardian ad litem be fixed in the Circuit Court of McLean County.

The judgment of the court below is affirmed, but the cause is remanded to the Circuit Court of McLean County for the purpose of the necessary proceedings and determination of any appropriate fees for the services of the guardian ad litem upon this appeal.

. The judgment of the Circuit Court is affirmed.

Affirmed.

SMITH and CRAVEN, JJ., concur.


author: SMITH, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Billy Wasson, Jr., Defendant-Appellant.
    Gen. No. 11,086.
    Fourth District.
    November 17, 1969.
    Albert E. Hurt, Public Defender, of Decatur, for appellant.

      Basil G. Greanias, State’s Attorney of Macon County, of Decatur, for appellee.
   SMITH, J.

Defendant was found guilty by a jury of the crime of burglary and armed violence, new trial was denied, and he was sentenced to a term of fifteen to fifty years in the penitentiary. His appeal is based solely on the proposition that both the minimum and maximum sentence is excessive, and should be reduced by this court.

The defendant entered the apartment of the complaining witnesses in Decatur and was armed with a revolver. The record does not indicate how he entered the apartment, but the wife found him sitting on her bed. He threatened both the husband and wife with the revolver. He waived his right to present evidence in mitigation. The People offered in evidence three prior convictions and his record appears as follows:

9-4-54 at the age of 20 years pleaded guilty to the crime of burglary and was granted probation for one year.
9- 23-58 convicted by a jury for burglary and sentenced to the Illinois State Penitentiary for a period of 2-10 years.
10- 5-60 released on parole.
8- 31-61 returned to the penitentiary as a parole violator.
1965 released from the penitentiary after serving sentence.
9- 19-67 convicted of theft in Indiana — 1-5 year sentence was suspended and he was admitted to probation for 3 years.
8-21-68 while still on probation from Indiana, convicted in the instant case for burglary and armed violence.

We agree with the observation in People v. Carroll, 76 Ill App2d 9, 221 NE2d 528, that a utopian sentence punishes sufficiently, safeguards the public interest adequately and reforms and rehabilitates the offender for his release as a useful member of society. In People v. Haynes, 73 Ill App2d 85, 218 NE2d 489, we noted that rehabilitation must ever be a benign goal and purpose of criminal jurisprudence, that the achievement of such goal rests not alone with the court, not alone with society, but the record of the defendant himself must show some desire, some ability and some willingness to reform and to rehabilitate. In People v. Land, 112 Ill App2d 345, 251 NE2d 92, we observed that the record there showed the defendant to be a recidivist, that he offered no evidence in mitigation, that the trial court could reasonably conclude that a fourth try at rehabilitation would be unavailing, and there approved a sentence of not less than four nor more than seven years on a charge of burglary. This record establishes that this defendant was not rehabilitated by probation granted on his first offense nor by parole granted on his second offense, nor by probation granted in another state on this third offense. He offers us nothing that would reflect a motivated desire to rehabilitate. He came to Decatur to visit his children armed with two guns. His explanation for his conduct on the evening in question was a denial of the right to see his children which resulted in his intoxication. The fact remains that this was an invasion of a home in the nighttime and while armed. On this record, rehabilitation of this defendant is more a prayerful hope than a reasonably foreseeable reality.

Accordingly, the determination to be made by the trial court and this court is whether or not the time has come for the protection of society and for punishment without however depriving the defendant of a reasonable opportunity to rehabilitate and to return to society as a useful citizen, if he cares to do so. We recognize that both the minimum and the maximum here given are within the limits prescribed by the statute and on this record we cannot say that the trial court abused its discretion. We do not deal with a first offender. In fact there is nothing pointed out in this record that suggests a reduction of the sentence would bring about rehabilitation. The defendant testified that he came to Decatur to see his children who were in a home in Decatur. Strange enough, he came armed with two revolvers and this is not the conduct of one who has undertaken his own rehabilitation while on probation. Efforts of society over the past fifteen years have been without any appreciable results, but we would not close the door on the possibility that there might come a day when this defendant would be rehabilitated. We think on this record that he ought, in a penal institution, establish the fact that he is so interested. There appears to be little likelihood of this being accomplished in a relatively short period of time. Society has tried; it is now his turn to try.

For the reasons assigned, the judgment of the trial court is affirmed.

Affirmed.

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


author: CRAVEN, J.,

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Daniel Webster Carleton, Defendant-Appellant.
    Gen. No. 11,136.
    Fourth District.
    November 17, 1969.
    Rehearing denied and opinion modified December 17, 1969.

      Hagin Harper, of Champaign, for appellant.
    John Morton Jones, State’s Attorney of Vermilion County, of Danville (Larry P. Cramer, Special Assistant State’s Attorney, of Urbana, of counsel), for appellee.
   CRAVEN, J.,

delivered the opinion of the court.

The defendant entered a plea of guilty to the charge of illegal possession of marijuana in violation of chapter 38, section 22-3, 111 Rev Stats 1967. His petition for probation was denied after a hearing thereon. Upon stipulation that the probation hearing would stand as the hearing in aggravation and mitigation, the defendant was sentenced to the Illinois State Penitentiary for a term of not less than two nor more than four years. He appeals the denial of probation. Another charge, unlawful sale of marijuana, was dismissed on motion of the People.

Sections 117-1 (a) (l)-(3) of the Code of Criminal Procedure (Ill Rev Stats 1967, c 38, §§117-1 (a) (l)-(3)) provide that a person who has been found guilty of any offense except a capital offense, sale of narcotics or rape is eligible for probation when it appears that the applicant is not likely to commit another offense, that the public interest does not require incarceration, and that rehabilitation does not require incarceration. In People v. McAndrew, 96 Ill App2d 441, 239 NE2d 314 (2nd Dist 1968), we find an excellent discussion of the statutory and procedural framework with reference to probation and the scope of review in connection with its denial.

The Committee Comments relative to the authority to grant probation observed:

“The basic philosophy of probation is that young and unhardened criminals should not be exposed to the ‘contaminating influence of association with hardened or veteran criminals,’ but should have an opportunity to rehabilitate themselves under the supervision of a probation official without institutional confinement. (Citing case.) . . . Ill Ann Stats c 38, § 117, Committee Comments p 3 (Smith-Hurd 1964).

The positive value of probation as a meaningful and rehabilitative disposition of young and unhardened criminals is widely accepted. In discussing this issue, Boldt, in an article, Recent Trends in Criminal Sentencing, Fed Prob, March 1963, p 3, at 5, observed:

“Every available study on the results of probation in actual practice indisputably shows it to be a highly successful form of sentence. The percentage of probation sentences has been steadily rising without such a rise in revocations as to indicate need for stopping, or even slowing, the trend toward wider use of probation. My personal experience in a large number of cases, carefully recorded, has dispelled every last doubt I ever had as to the wisdom and justice of not excluding the possibility of probation in the vast majority of cases. In my opinion, the granting of probation should be ruled out only when the judge is satisfied that security of the community and its individual citizens so requires. From the evidence it is apparent more and more judges throughout the nation are having the same results and are reaching substantially the same conclusion.”

The record in this case indicates that the defendant was 20 years of age, was a student at the University of Hlinois, and the offense happened during his sophomore year. While at the University he became acquainted with some people who were using marijuana and from that association the defendant likewise used marijuana. This use and the association with other users culminated in the instant offense. Other than this offense the defendant has had only one contact with police authorities. That was in the year 1963, when, at the age of 14 years, there was an incident involving the throwing of apples at cars. That matter was disposed of by “station adjustment.” The defendant is from a stable home environment. He is described as having been “reared in a better than average community by well educated and reputable parents.” At the University the defendant appears to have been active in a group or “Committee” organized to advocate the end of the war in Vietnam, and there is further indication of some contact with a narcotics user in California.

The defendant asserts here some suggestion of a form of entrapment — or, at least, that the defense of entrapment may have been available to him because of the fact that the current charge grew out of use by the State Bureau of Narcotics of undercover agents and informers paid by that Bureau. We agree with the People that to the extent that the defendant seeks to assert entrapment for the first time in this court, it cannot be done. See People v. Ramos, 112 Ill App2d 330, 250 NE2d 822 (2nd Dist 1969), and cases there cited.

At the time of this offense and the sentence here imposed, violation of the statute to which the defendant entered a plea of guilty, regardless of the quantity of marijuana involved, was subject to a possible minimum sentence of two years in the penitentiary, although probation was an available disposition. House Bill 29 of the Seventy-sixth General Assembly, Regular Session, made a change in this section of the statute (§ 22-3 of c 38, Ill Rev Stats 1967) and provided that possession of marijuana, in certain quantities or less, would be punishable as a misdemeanor. This bill was approved by the Governor on July 18, 1969 (Public Act 76-464, Illinois Legislative Service 1969, No. 4).

Section 4 of chapter 131, HI Rev Stats 1967, provides, in substance, that a defendant may benefit by a statute that mitigates a penalty in the event of sentencing after the effective date of the statute notwithstanding the date of the offense. After sentencing, however, the option provided by the foregoing section is no longer available. See People v. Hansen, 28 Ill2d 322, 192 NE2d 359, cert den 376 US 910, 11 L Ed2d 608, 84 S Ct 665 (1964).

The foregoing observations are relevant to our review of the denial of probation in this case in that the Legislature has determined to mitigate penalties in certain instances with reference to marijuana. While the trial court, in granting or denying probation, is clothed with considerable discretion, it may well be that this policy determination by the Legislature in the area with which this case is concerned may have considerable bearing upon the granting or denial of probation at the trial level, even though this case is not necessarily within the area of the specific change in the statute. The indictment in this case does not allege the quantity of marijuana in the defendant’s possession but merely alleges that defendant “knowingly and unlawfully possessed a quantity of a certain narcotic drug, to wit: Cannabis Sativa L., commonly known as Marihuana [sic], in violation of Chapter 38, Section 22-3, Hlinois Revised Statutes, . . . .” (Emphasis in original.)

We deem it appropriate, therefore, as in McAndrew, to affirm the conviction, vacate the sentence, reverse the denial of the application for probation, and remand the cause to the trial court to reconsider the application for probation in this case. Although in McAndrew, the reason for the disposition was an abuse of discretion (which is not found in this record), the reconsideration of probation in this case is appropriate.

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

TRAPP, P. J. and CREES, J., concur.


text:
    Dorothea W. Huszagh, Plaintiff-Appellant, v. Milton J. Holloway, et al., Defendants-Appellees.
    Gen. No. 69-46.
    Second District.
    November 18, 1969.

      Ralph W. Huszagh, of Barrington, for appellant.
    Vedder, Price, Kaufman and Kammholz, and John J. Cassidy, Jr., of Chicago, for appellees.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

This is an action in equity wherein the plaintiff sought specific performance of an alleged agreement evidenced by a letter. The defendants, Ralph D. Huszagh and Marjorie W. Huszagh, filed a motion to dismiss the complaint, which was sustained by the court. The plaintiff has appealed from the order dismissing the complaint.

The plaintiff is the widow of L. LeRoy Huszagh, herein called the decedent. The defendants, Ralph D. Huszagh and Milton J. Holloway, are the record owners of the real estate in question, and the parties to the disputed agreement. The defendant, Ralph D. Huszagh, herein called Huszagh, is the brother of the decedent and the husband of the defendant, Marjorie W. Huszagh; and the defendant, Estelle Holloway, is the wife of Milton J. Holloway, herein called Holloway.

The complaint was filed December 30, 1966. It pertinently alleged: That the decedent died January 9, 1946, leaving a last will and testament whereby the plaintiff was made his sole legatee and devisee; that the will was admitted to probate and the estate was settled and closed; that the plaintiff, by the estate proceedings, was vested with all the rights, privileges and choses in action created by an agreement dated October 26,1936; and that the agreement, which was attached to the complaint as an exhibit, provided:

“October 26, 1936.
“Mr. Ralph D. Huszagh 6 North Michigan Ave., Chicago, Rlinois
“Dear Ralph:
“Enclosed please find my check for twenty-six hundred dollars ($2600.00) toward purchase of property for fifty three hundred and fifty dollars ($5350.00) in Barrington, Rlinois, known as:
“Lot 2 in County Clerk’s Division in the West half of the South West quarter of Section 36 township 43 North, Range 9, East of the 3rd P. M., in Lake County, Rlinois, and find that on August 18,1936.
“It is agreed that you are to put up the other half less the one hundred fifty dollars ($150.00) already advanced by you to purchase the second Mortgage and we are to own this property jointly.
“It is further agreed that when the above described real estate is sold we are to give your brother Roy one third of the net profit derived from same.
Yours very truly, Signed by M. J. Holloway “MJH :LH O. K. Ralph D. Huszagh R D Huszagh
“(Written notes) Or Roy has privilege to pay up one third less $267.00 Real Estate commission. Milton and Ralph entitled to 5% on money invested.
Signed Ralph D. Huszagh
“I am holding the original agreement in my possession and this is a true copy of same.
Signed Ralph D Huszagh.”

The complaint also alleged that a fiduciary relationship existed between the decedent and his brother, the defendant, Huszagh, and the defendant, Holloway; that by reason of the illness of the decedent for more than five years prior to his death, Huszagh was the dominant party in said relationship; that the decedent, a licensed real-estate broker, discovered that the business lot in question could be purchased for $5,300 and suggested that he, Huszagh and Holloway, acquire it as a joint investment; that Huszagh and Holloway made a counter-proposal that they purchase it in their own names, but in trust, for the purpose of enabling the decedent to acquire an undivided one-third of the property at any time that he would pay one-third of the cost thereof, less a commission of $267, provided, that Huszagh and Holloway would be entitled to 5% on the money they invested; and, also, when the property was sold, Huszagh and Holloway would pay the decedent one-third of the net profit from the sale.

The complaint further stated that the property is situated in the heart of the Barrington business district and consists of five stores, which are rented; that from the proceeds of mortgages placed on the property by Huszagh and Holloway, and their respective wives, and from the rents and profits from the property, Huszagh and Holloway acquired additional adjoining real estate and have improved it; that Huszagh and Holloway have taken from such rents and profits, substantial sums for their own use in excess of 5% on their investments, and the plaintiff should be adjudicated the owner of an undivided one-third of all of such property, and receive one-third of the profits therefrom after Huszagh and Holloway have been reimbursed for the amount of their invested money, plus 5% per annum on the total sums advanced by them, less $267; that if Huszagh and Holloway have not received from said profits to date, all of the money advanced by them, less said $267, then the plaintiff will make such payments unto them as may be found due and owing; and that the plaintiff has requested an accounting from them and they have refused to account.

The plaintiff in her prayer for relief sought an accounting; an adjudication that she is the owner of an undivided one-third of the real estate in question, and is entitled to one-third of the profits therefrom; and prayed that the court determine the sum of money, if any, which she must pay to the defendants in order to exercise her option to purchase. She also prayed for the partition of the property.

The motion to dismiss set forth five reasons for the dismissal of the complaint, to wit: (1), loches — the complaint was devoid of any reason excusing or explaining the thirty-year delay between the date of the alleged agreement and the commencement of the plaintiff’s actian; (2), the Statute of Limitations; (3), that the alleged agreement is unenforceable in equity because it is vague and indefinite, lacks consideration, and was abandoned by the decedent prior to his death; (4), that the plaintiff cannot maintain the action because the rights granted to her husband were made solely to him and were not transferrable, devisable or inheritable, and could not be enforced by a person who was not a party to the agreement; and (5), that the complaint failed to allege any facts upon which an implied or constructive trust could be raised by operation of law.

The trial court filed a memorandum of decision along with its order dismissing the complaint. In the memorandum, the court noted that the plaintiff had not alleged that her husband had ever sought to exercise any of his purported rights under the alleged contract or made any claim of interest in the property during his lifetime; that the plaintiff’s first claim relative thereto was made in 1964 when she filed an affidavit of claim in the office of the Recorder of Deeds of Lake County; and that the reasons stated in the motion to dismiss were well founded in law, and set forth proper grounds for the dismissal of the complaint.

On appeal, the plaintiff contends that the letter constituted a written contract which contained all of its material provisions in clear, certain and definite language; that it was valid and enforceable; that the cause of action has not accrued on the contract; that the plaintiff has not been unjustly enriched, or the defendants have not been damaged by the delay, and neither the statute of limitations nor the doctrine of loches have application; that the contractual rights of the decedent in the realty in question were inheritable and devisable; and that the defendants for their own unjust enrichment abused a fiduciary relationship with both the decedent and the plaintiff.

Laches is purely an equitable doctrine and has been called the doctrine of stale demand. Whether an action is barred on account of loches is to be determined by the facts and circumstances of each particular case. Generally, loches has been defined as such neglect or omission to assert a right, taken in conjunction with lapse of time and other circumstances causing prejudice to an adverse party, as will operate as a bar in equity. In re Estate of O’Donnell, 8 Ill App2d 348, 353, 132 NE 2d 74 (1956).

In Pyle v. Ferrell, 12 Ill2d 547, 147 NE2d 341 (1958), at page 552, the court, in discussing the circumstances under which the doctrine of loches will be applied, stated:

“Loches, or the doctrine of stale demand, as it is sometimes termed, is a defense peculiar to equity which is bottomed on the reluctance to aid one who has knowingly slept upon his rights and acquiesced for a great length of time, (19 Am Jur, Equity, sec 489) and its existence depends on whether, under all circumstances of a particular case, a plaintiff is chargeable with want of due diligence in failing to institute proceedings before he did. (McCartney v. McCartney, 8 Ill2d 494.) Although loches is defined by one authority as such delay in enforcing one’s rights as will work to the disadvantage of another, (30 CJS, Equity, sec 112) it is, unlike limitations, not a mere matter of time but principally a question of the inequity of permitting the claim to be enforced, an inequity founded upon some change in the condition or relation of the property and parties, and where there is such a change as to make it inequitable to grant relief, it will be refused. (McKey v. McKean, 384 Ill 112.) Laches is, therefore, such neglect or omission to assert a right, taken in conjunction with a lapse of time of more or less duration and other circumstances causing prejudice to an adverse party, as will operate to bar relief in equity. (Curtis v. Curtis, 398 Ill 442; Gaffney v. Harmon, 405 Ill 273; Carlson v. Carlson, 409 Ill 167.) ”

Also, in considering the application of the doctrine to one who passively allows another to make expenditures for improvements, pay taxes and otherwise become obligated in connection with real estate, the court at page 555 stated:

“In addition to the neglect and delay which attended the appellant’s prosecution of this action, we may consider that a party is guilty of loches which ordinarily bars the enforcement of his right where he remains passive while an adverse claimant incurs risk, enters into obligations, or makes expenditures for improvements or taxes. (See: 30 CJS, Equity, sec 118.) Here it is undisputed that Ferrell, after waiting 15 years for appellant to redeem his land or to assert himself against the tax title, incurred the risk and obligations attendant to a lease of the mineral estate for oil and gas, and that he expended money for the taxes on the premises for a period of 20 consecutive years. We may consider too that the rule of loches is particularly applicable where the difficulty of doing entire justice arises through the death of parties to the transaction complained of. (Neagle v. McMullen, 334 Ill 168; Carlock v. Carlock, 249 Ill 330.)”

In the case at bar, we take judicial notice that real estate values have increased substantially since 1936. Atchison, T. & S. F. Ry. Co. v. United States, 284 US 248, 260 (1932); Klee v. Chicago Trust Co., 365 Ill 354, 356, 6 NE2d 442 (1937). The marked appreciation in value of the claimed property over a period of time, in which neither the plaintiff nor the decedent made any effort to enforce the rights now claimed in the property, is a factor which courts have recognized as evidence of the injury or prejudice which justifies the application of the doctrine of loches.

In Johnson v. Whitney Metal Tool Co., 342 Ill App 258, 96 NE2d 372 (1950) — a case involving an option for an unspecified time for the purchase of stock, where the optionee made no attempt to exercise the option until five years had expired during which time the stock increased materially in value — the court stated at page 269:

“The law is that where there has been a material advance in the price of property covered by an option, unexplained delay in exercising the option will defeat the right to specific performance. (Stuckrath v. Briggs & Turivas, 329 Ill 555, 566; Harry Manaster & Co. v. Young, 302 Ill App 545, 555.)”

In Barker v. Barker, 36 Ill App2d 20, 183 NE2d 518 (1962) — a case involving an alleged resulting trust — the court, in expressing its view on the subject of loches, stated that where the plaintiff — who, before filing suit, had waited 9 years without asserting a claim, and permitted the defendant to act as owner of the property while it increased in value — was guilty of loches. At page 29, the court stated:

“Marked appreciation of the value of property is ordinarily fatal to a plaintiff’s case where he might have asserted his right before the change and the relief, if granted, would work inequity. 30 CJS sec 118, p 541; People ex rel. Jones v. Leviton, 327 Ill App 309, 64 NE2d 195; Carlock v. Carlock, 249 Ill 330, 94 NE 507. Where the property involved is of a speculative or fluctuating character, a claimant must be more than ordinarily prompt and may not await the outcome of an enterprise to assert his interest. 30 CJA sec 118, p 541; Pyle v. Ferrell, 12 Ill 2d 547, 147 NE2d 341; Benson v. Dempster, 183 Ill 297, 55 NE 651; Cleaver v. Green, 107 Ill 67.”

If a plaintiff seeks the aid of a court of equity in the enforcement of a stale claim, he must allege in his complaint some valid reason which excuses the delay. In LeGout v. LeVieux, 338 Ill 46, 169 NE 809 (1930), the cross complainants waited over 50 years before claiming an interest in real estate, and the interest was asserted after the discovery of oil on the land. During this 50-year period, they never controverted the rights of other persons to the premises. The lower court dismissed the cross complaint, the Supreme court affirmed the lower court, and at page 51 stated:

“When a court of equity is asked to lend its aid in the enforcement of a demand that has become stale there must be some cogent and weighty reasons presented why it has been permitted to become so. Good faith, conscience and reasonable diligence of the party seeking its relief are the elements that call a court of equity into activity, (McDearmon v. Burnham, 158 Ill 55; Castner v. Walrod, 83 id. 171; Carpenter v. Carpenter, 70 id. 457;) and the absence of any one of these elements is fatal to a recovery.”

When we view the factual allegations of the complaint as true, we note that the letter which constituted the alleged written agreement was dated October 26, 1936. The decedent knew of the alleged agreement upon which the plaintiff predicates her rights. He died in January 1946 — almost ten years later — without ever attempting to exercise his purported rights to purchase a one-third interest in the property, and without asserting a claim to a one-third interest therein.

After his death, the plaintiff did not make claim to any rights in the property until 1964 — eighteen years after decedent’s death. Suit was not filed until December 30, 1966, more than thirty years after the letter was written and more than twenty years after the decedent’s death. Yet, the complaint fails to allege any reason which would excuse the plaintiff’s failure in this respect, and the only circumstance alleged, which would excuse the decedent’s inaction, was illness for more than five years prior to his death. Such unexplained delay on the part of the plaintiff and the decedent in asserting any rights under the alleged contract, renders them guilty of loches, which bars the enforcement of the alleged claim against the defendants.

During this thirty-year period, according to the allegations of the complaint, the property was “improved with a substantial brick and stone, steam heated building, consisting of 5 stores,” and the defendants, with funds from rentals and from mortgage loans on the property, acquired additional real estate adjoining the property. The complaint does not allege that the plaintiff or the decedent participated in the management and improvement of the premises, in the purchase of the adjoining realty, in the signing of the mortgages and notes, or in the payment of the annual real-estate taxes on the premises.

We believe that the order dismissing the complaint can be affirmed on the doctrine of loches. Thus, under our view of the case, and in the interest of judicial parsimony, a decision with reference to the other reasons assigned by the trial court, and the defendants, for the dismissal of the complaint is unnecessary; nor do we reach the contentions of the plaintiff urged for reversal of the trial court, other than that which asserts that the doctrine of loches has no application in this proceeding.

Accordingly, the judgment of the trial court is affirmed.

Judgment affirmed.

MORAN, P. J. and ABRAHAMSON, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Country Mutual Insurance Company, an Illinois Corporation, Plaintiff-Appellant, v. George E. Drendel, Individually and as Administrator of the Estate of Gordon Drendel, Deceased, Defendant-Appellee.
    Gen. No. 69-65.
    Second District.
    November 18, 1969.

      Matthews, Jordan, Dean and Suhler, and John L. Petersen, of Aurora, for appellant.
    Gromer, Abbott and Wittenstrom, of Elgin, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The Country Mutual Insurance Company appeals from an order of the Circuit Court of Kane County entered February 6, 1969, that dismissed its amended complaint “for failure to state a sufficient cause of action.”

The complaint alleged that Country Mutual had issued a policy of automobile liability insurance to the defendant, George E. Drendel, that included uninsured motorist coverage for Drendel and members of his household. During the period covered by the policy, Gordon Drendel, the son of George and a member of his household, was involved in an automobile accident that resulted in his death. The driver of the other automobile was uninsured at the time of the accident.

The amended complaint further alleged that George Drendel was duly appointed Administrator of his son’s estate and that he did, through his attorney, enter into negotiations with Country Mutual to settle any claims under the policy. Country offered to settle the claim for $11,000 and a waiver of its rights of subrogation and, on July 23, 1968, Drendel, through his attorney, accepted that offer. A letter of that date from Attorney Clarence F. Wittenstrom, Jr. to Country is attached to the complaint as an exhibit. The letter stated:

“With respect to your letter of July 22, 1968, please be advised that we are authorized to accept Mr. Haas’ offer to conclude. We understand such offer to be $11,000.00 in cash plus waiver of all of your company’s right of subrogation under your policy with Mr. Drendel, including any and all rights of subrogation included in the ‘Trust Agreement’ portion of Section 2 of your personal vehicle policy.
“Please prepare the necessary papers and submit them to us.”

The complaint goes on to state that the necessary documents were forwarded to Wittenstrom on July 31 but were returned, unsigned, on September 10 with a letter to the effect that Drendel demanded arbitration of the claim pursuant to the provisions of the policy. Country asked the trial court to compel Drendel to perform his obligations under the settlement agreement.

The motion of the defendant to dismiss was on the grounds that the complaint failed to state a cause of action since it showed on its face that the parties had not made an oral settlement but “were merely negotiating as to its terms” and that, in any event, an oral agreement to settle a tort case is not binding until releases are executed or “disposition of the case has been made an accomplished fact.” The motion stated further that the releases forwarded by Country required the approval of the Probate Court as a condition precedent to settlement and that the complaint filed failed to allege that the condition had been performed and was, therefore, defective. The trial court did not indicate the basis of its order of dismissal.

It is clear that the parties, through the policy of insurance, were in a direct contractual relationship and that the matter at issue between them was based on that relationship and not on the alleged tort of a third party. The agreement alleged by the plaintiff was a settlement of the defendant’s claim under the provision of the insurance policy and not an oral settlement agreement in a tort case. Therefore, the defendant’s argument, that an oral settlement of a tort case is not binding without some further positive action, is not in point.

The defendant cites the recent case of Country Mut. Ins. Co. v. National Bank of Decatur, 109 Ill App2d 133, 248 NE2d 299, to the effect that a claim under an uninsured motorist provision is one in tort, not contract. However, it is clear that the court in that case was concerned with an interpretation of the contract of insurance between the parties. The contract provided that Country would pay “. . . all sums which the Insured . . . shall be legally entitled to recover as damages from the owner or operator of an uninsured automobile. . . .” The insured filed a demand for arbitration three years after the date of the accident. By that time, the insured was not legally entitled to recover any damages from the uninsured motorist since he had failed to exercise his right of action for wrongful death within the time provided in the statute.

The law looks with favor upon the settlement of disputes and, unless specifically prohibited, an oral agreement to settle a matter at issue will be upheld and enforced. Knoll v. Swanson, 92 Ill App2d 398, 402, 403, 234 NE2d 543. There is no reason why a dispute based on a contract, including a contract of insurance, cannot be settled by the oral agreement of the parties. Although it is obvious an oral settlement agreement may be more difficult to establish by competent proof than a written agreement, that is a matter of evidence and does not concern the validity of the agreement itself.

Since we have concluded that there is no reason why the parties could not enter into an oral settlement agreement, it is only necessary to examine the amended complaint to ascertain whether it contains the necessary allegations to state a cause of action. The amended complaint alleged that the parties had commenced negotiations to settle the claim based on the uninsured motorist provision of the contract of insurance and that the defendant had on July 23, 1968, accepted the offer of Country Mutual in full settlement. The letter of that date from the defendant’s attorney that was made part of the complaint stated “. . . we are authorized to accept . . . (the) . . . offer. . . .” These allegations do not show on their face that the parties were “merely negotiating” as argued by the defendant but state, with sufficient clarity, that there had been a meeting of the minds as of July 23 and an agreement made on that date.

A motion to dismiss admits all facts well pleaded and a cause of action should not be dismissed upon its pleadings unless it clearly appears that no set of facts can be proved under the pleadings which will entitle the plaintiff to recover. Consolidated Const. Co. v. Great Lakes Plumbing & Heating Co., 90 Ill App2d 196, 206, 234 NE2d 378; Louis v. Barenfanger, 81 Ill App2d 104, 110, 226 NE2d 85. We feel that the amended complaint contains allegations of specific facts which, if proven, would establish that an enforceable agreement had been made and is stated with enough clarity to reasonably inform the defendant of the nature of the suit against him. Therefore, under modem rules of pleading, the complaint was sufficient and should not have been dismissed.

The order of dismissal is reversed and the cause remanded for further proceedings.

Reversed and remanded.

DAVIS and SEIDENFELD, JJ., concur.


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. James Calvin, Defendant-Appellant.
    Gen. No. 52,222.
    First District, Second Division.
    November 18, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Paul Bradley, Theodore A. Gottfried, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and John R. McClory, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendant was found guilty by a jury of the crime of murder and was sentenced to a term of 14 years to 20 years in the penitentiary. He appeals.

About 3:15 a. m. on January 20, 1966, Walter Barber, the deceased, was shot by the defendant at a diner located at 1150 South Kedzie Avenue in Chicago. The deceased had been sitting at the service counter in the diner at the time the defendant entered shortly before 3:15 a. m. The defendant seated himself at the counter, placed his head on the counter and allegedly fell asleep. A short while later one of the other patrons in the diner, a man named Lee, slapped the defendant on the back and said, “Hi, James!” Defendant, who was either spun around on the counter stool by the slap or who spun himself around on the stool, thereupon drew a revolver.

The manager of the diner, who testified for the People, stated that defendant, after he had been slapped on the back, had words with Lee and another of the patrons in the diner, and that he drew the revolver and fired a shot into the floor. The deceased, who was seated nearby, moved his arm and the defendant told him to keep his hands on the counter. Defendant then walked over to the deceased, placed the gun to his head, and stated, “You look like one of those fellows that jumped me last week.” The witness testified that the deceased thereupon rose from his seat at the counter and attempted to get out the door, but that defendant fired a shot past his head and told him to sit down. The witness further testified that the deceased continued to try to reach the door, that the defendant kept pushing him and telling him to “stay back, before I shoot you,” and that when the deceased kept advancing, the defendant shot him in the body, paused and then shot him twice more. The defendant left the diner, returned shortly and fired two more shots, one at the deceased and the other at the record player. The deceased was then helped out of the diner by another man. The manager testified that at no time did the deceased speak to the defendant, nor did the deceased have any weapon in his hand.

Chicago Police Officers Fritz and Klomfar testified that at approximately 3:30 a. m. on the morning in question they received a radio communication of a burglary at the apartment of the defendant. When they arrived at the apartment they were told that someone had broken into the defendant’s apartment and had stolen his brother-in-law’s revolver. The officers testified that they located a revolver in the apartment, that it smelled as if recently fired, and that defendant explained its presence in the apartment by stating that “whoever took the gun must have used it and brought it back.”

The officers testified that they contacted headquarters concerning the registration of the gun and were informed by Sergeant Doll that the defendant was wanted in connection with the shooting at the diner. They transported the defendant to the diner, and as the defendant alighted from the squad car, about a dozen persons at the scene shouted, “That is him, that is James!” The officers testified that they did not get the identification of any of those persons who allegedly shouted defendant’s name as he alighted from the police vehicle.

Police Sergeant Doll and Officer Kalis were permitted to testify for the People, over objection of the defendant that their names did not appear on the list of witnesses submitted to the defendant before trial. Officer Kalis testified that he received a radio communication of a man shot at the diner in question. He testified that he proceeded to the location and found the deceased, still alive, sprawled in an automobile nearby. He stated that the police sergeant arrived shortly afterwards, that a police ambulance was called for, and that when it was found that none was available, the sergeant drove the deceased to the hospital in his police vehicle. The officer testified that he searched the person of the deceased before he was taken to the hospital but did not find a weapon. He also testified that he made a visual search of the automobile in which the deceased had been lying and did not see a weapon.

Police Sergeant Doll testified that after he arrived at the scene of the shooting, he attempted to secure a police ambulance to transport the deceased, who was alive, to the hospital for treatment, and that when it was learned that none was available, he drove the deceased to the hospital in his squad car. On the way to the hospital the sergeant asked the deceased what had occurred and the deceased replied that “he didn’t know the man, just walked in and shot him for no reason.” The testimony of the sergeant concerning the statement by the deceased was objected to by the defendant, but the statement was received into evidence as a dying declaration. The sergeant further testified that he searched the person of the deceased and found no weapon, but that he did not search the automobile in which the deceased was lying when the sergeant arrived on the scene.

The coroner’s pathologist testified that the deceased died some time after having been admitted to the hospital, of gunshot wounds in the abdomen.

The defendant testified that about two weeks prior to the shooting he had been severely beaten by the deceased and two other men. He stated that he saw the deceased earlier the evening of the shooting in the company of the two men who were with him the day the defendant was beaten, and that he armed himself as a result. The defendant further testified that he drew his revolver in the diner after Lee had slapped him on the back and after he observed the deceased in the diner also. He stated that the deceased approached him and went into his pocket for a knife or a razor. Defendant told the deceased to “back off” and as the deceased continued to approach, the defendant fired five shots, the first into the air, the second into the record player and the third into the deceased’s leg as an attempt to halt his approach. The fourth shot was fired into deceased’s midsection, and after firing the fifth shot the defendant ran from the diner. Defendant testified that he then caught a taxi for home and that his nephew had notified the police that his apartment had been burglarized.

Mrs. Evelyn Goodwin, a student at the American Institute of Engineering and Technology, testified as a defense witness and stated that she was present in the diner when the shooting occurred; that she observed the defendant standing near the door to the diner and the deceased standing at a stool near the counter; that she heard the defendant say to the deceased that the deceased and his partners would not “jump him” as they had before; that she observed the deceased reach into his pocket and start to draw out a knife; and that the defendant then shot the deceased. The witness further testified that she heard two or three more shots fired and that she then fled from the diner.

Defendant first contends that the statement made by the deceased while being transported to the hospital after the shooting, as testified to by Sergeant Doll over objection of the defendant, was improperly admitted into evidence as a dying declaration inasmuch as all the elements necessary for its admission as an exception to the hearsay rule were not present. We agree.

The law attending the admissibility as evidence of dying declarations is firmly established in this State. In People v. Odum, 27 Ill2d 237, at pages 242-243, the Supreme Court states:

“[Dying declarations] are defined as statements of fact by the victim, concerning the cause and circumstances of a homicide. To make them admissible into evidence as dying declarations, an exception to the rule against hearsay evidence, it must appear that they are made by the victim under the fixed belief and moral conviction that death is impending and certain to follow almost immediately, without opportunity for repentance and in the absence of all hope of avoidance, when he has despaired of life and looks to death as inevitable and at hand. People v. Tilley, 406 Ill 398, 403; People v. Hubbs, 401 Ill 613; People v. Savant, 301 Ill 225.”

The Court then holds, at pages 243-244 of the opinion:

“In this case the testimony shows that none of the medical personnel advised the victim that he faced imminent death. What the victim himself said cannot be construed as indicating that he had abandoned hope. While the police officers frequently stated that the victim was dying, it is the state of mind of the deceased and not that of any other person which determines admissibility. (People v. Tilley, 406 Ill 398, 403.) As this court held in People v. Maria, 359 Ill 231 and Brom v. People, 216 Ill 148, the belief of the dying man and not the belief of those around him furnishes the guaranty of truthfulness that makes his dying declaration admissible in evidence.”

The early case of Starkey v. People, 17 Ill 16, sets out at pages 19-20 the reasons for the stringent rules governing the admissibility of dying declarations:

“The accused, under the rule, has not the benefit of ‘meeting the witness against him face to face,’ a constitutional right in all criminal trials with this solitary exception. He is deprived of the security of an oath attended with consequences of temporal punishment for perjury. He is deprived of the great safeguard against misrepresentation and misapprehension — the power of cross-examination. The evidence is hearsay in its character; the statements are liable to be misunderstood and to be misrepeated upon the trial, and the evidence goes to the jury with surroundings tending to produce upon the mind emotions of deep sympathy for the deceased, and of involuntary resentment against the accused.”

The only evidence in the record before us which relates to the alleged dying declaration made by the deceased, and to the circumstances surrounding its utterance, is the testimony of Sergeant Doll, which is as follows:

Q. [Assistant state’s attorney] “And directing your attention to about 3:15 on [the morning in question,] where were you at that time, sir?”
A. [Sergeant Doll] “I responded to a call at 11 something South Kedzie Avenue, Roosevelt and Kedzie, of a man shot.”
Q. “And what did you do, sir, in responding to that call?”
A. “I pulled up in my squad car. The other officers on the squad car (sic) were already there. Called for a wagon and unable to receive a wagon. All wagons were tied up.”
Q. “What did you do next ?”
A. “I took the victim of the shooting and took him to the back of the squad car and ran him to the emergency room of Mount Sinai Hospital.”
Q. “Sergeant Doll, at this time was the victim, Mr. Barber, imminently in fear of death?”
A. “I believe he was, yes, sir.”
Q. “And did you have a conversation with him at this time, Sergeant?”
A. “Yes, I did.”
Q. “What did you say to him and what did he say to you in that conversation ?”
A. “Well, I asked him what happened and he stated that he didn’t know the man, just walked in and shot him for no reason.”
[Defense counsel]: “Objection, Your Honor.”
[Assistant state’s attorney]: “Dying declaration.”
THE COURT: “It may stand.”

The statement of the deceased should not have been allowed into evidence. Clearly, the requirements for its admission as a dying declaration were not present. The sergeant testified to nothing, and there is nothing in the record apart from his testimony, which would indicate the attitude which the deceased had toward his condition at the time; there is no evidence that he possessed the “fixed belief and the moral conviction” that his death was impending and certain, as required by People v. Odum, supra. The officer stated only what he believed was the state of mind of the deceased, without regard to anything the deceased might have said or done to evidence that state of mind. People v. Maria, 359 Ill 231, 194 NE 510.

Further, the People were permitted, during closing argument to the jury and over objection of the defendant, to comment at length concerning that statement of the deceased, categorizing it as “the most important part of the Sergeant’s testimony, by far, going away, ... as brief as it might be between him and the deceased, . . .” and stating to the jury that the reason such a statement is allowed into evidence as an exception to the hearsay rule is the “fact that a man will never lie when he stands at death’s door waiting to go to his Maker.” We are unable to say what effect the evidence, and the comments by the prosecutor, had on the jury in arriving at their verdict. See Starkey v. People, 17 Ill 16, 19-20.

The People argue that the deceased’s statement to Sergeant Doll is nonetheless admissible under the rules pertaining to spontaneous declarations. The ground advanced in support of this position is that the deceased was in a physically agonizing condition after having been struck by the three bullets, which so affected his state of mind that he had no opportunity to reflect and to fabricate the declaration made to the sergeant. The record is devoid of any evidence regarding the “agony of horrendous tissue destruction and tremendous hydraulic shock” experienced by the deceased after the shooting which “would necessarily be such as to obviate any opportunity to reflect and invent between the firing of the shots and the declaration.” The declaration was made by the deceased to the sergeant a considerable length of time after the shooting occurred and does not qualify as a spontaneous declaration under the circumstances here involved. See People v. Poland, 22 Ill2d 175, at 180-181, 174 NE2d 804. (It should also be noted that the statement of the deceased was originally admitted into evidence as a dying declaration; it was not until the motion for a new trial that the People advanced the theory of its admissibility as a spontaneous declaration.)

Defendant next contends that it was error to permit Officer Kalis and Sergeant Doll to testify, inasmuch as their names were omitted from the list of witnesses and their testimony surprised the defendant. The trial court gave the defendant adequate time and opportunity to interview the witnesses prior to their taking the stand, after it was learned that the People intended to call them as witnesses. Nevertheless, this contention is obviated, first, by the view we take of the admission of the testimony of Sergeant Doll relating to the alleged dying declaration made by the deceased and, second, because the balance of the testimony of the two officers was harmless, in that it related solely to the transportation of the deceased to the hospital after the shooting and in no way bore on the shooting itself.

Defendant also argues that the trial court committed error in allowing the testimony of Officers Fritz and Klomfar with respect to the several persons at the scene of the shooting who shouted, “That is him, that is James!” when the defendant was returned to the scene. The testimony of Officer Fritz in this regard was objected to on direct examination, but the defendant, on the cross-examination of the officer, asked no less than eleven questions concerning the statements and the identity of the persons who made them. No objection was made to the testimony of Officer Klomfar when he testified to the statements made in this regard on direct examination, and defendant again went into the matter on the officer’s cross-examination. This ground has been waived. See People v. Voleta, 57 Ill App2d 279, 206 NE2d 737.

The final contention raised by the defendant is that the trial court erroneously refused to instruct the jury on a charge of voluntary manslaughter, whereas the evidence in the record supports such an instruction. (People v. Taylor, 36 Ill2d 483, 487-489, 224 NE2d 266.)

It appears that defense counsel desired an instruction relating voluntary manslaughter resulting from serious provocation, in accordance with section 9-2 (a) of the Criminal Code, rather than one dealing with a defendant’s unreasonable belief that the circumstances justified a homicide, in accordance with the provisions in section 9-2 (b) of the Criminal Code. (Ill Rev Stats 1965, c 38, par 9-2 (a) and (b).) Defendant states that his desire to have the jury instructed on a manslaughter charge was communicated to the trial judge, although it was not based upon the proper subsection of the statute, and that it was therefore “incumbent upon the trial judge to give a voluntary manslaughter instruction based upon Section 9-2 (b) . . . sua sponte.” Inasmuch as this matter must be reversed and remanded; we feel that this question will not arise again if there is a re-trial of this cause.

For these reasons the judgment is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed.

Judgment reversed and cause remanded with directions.

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


author: EBERSPACHER, J.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Walter McCottrell, Defendant-Appellant.
    Gen. No. 67-30.
    Fifth District.
    November 18, 1969.

      Robert F. Godfrey, of East St. Louis, for appellant.
    Robert H. Rice, State’s Attorney, of Belleville (John M. Karns, Jr., Assistant State’s Attorney, of counsel), for appellee.
   EBERSPACHER, J.

This is an appeal from the Circuit Court of St. Clair County from a judgment entered upon a jury verdict finding the defendant, Walter McCottrell guilty upon each count of a three-count indictment charging the defendant with burglary with intent to commit theft, rape and robbery.

The defendant in his effort to reverse the judgment challenges the trial court’s ruling that a written and oral confession were admissible in evidence, alleges that the Court erred in denying the defendant’s motion for mistrial, and asserts that the verdict was the result of prejudicial remarks of the State’s Attorney in his closing argument.

The basis of the defendant’s first argument is that the admonishment given to the defendant by the law enforcement officers prior to his interrogation falls short of the requirements of the Miranda and Escobedo decisions. The defendant argues he was held in custody for a period of six to seven hours, that the admonishment given to the defendant by the law enforcement officers was done in a hurried manner and was never repeated to the defendant during the course of the interrogation and that accordingly and when considered with the age of the defendant, which was 17 at the time, exhibits a violation of the requirements of Miranda and Escobedo.

It should be noted that a full hearing was held out of the presence of the jury before the confessions were ruled admissible. All material witnesses to the confessions were called as witnesses. The trial court sought to apply the test of Miranda v. Arizona, 384 US 436, 86 S Ct 1602, 1969.

The question of the competency of a confession is for the trial judge to determine and his decision will not be disturbed unless it is manifestly against the weight of the evidence. People v. Taylor, 40 Ill2d 569, 241 NE2d 409 (1968). In the present case the defendant does not assert that the admonishments were not given to him but that they were given to him in a hurried manner. From our examination of the record it appears that all of the witnesses called to testify indicated that the defendant was duly admonished both orally and by exhibiting to him a placard which contained the admonishments in writing. The time element is also not particularly relevant, although we note a great disparity as to time—the defendant indicating a period of seven hours, the law enforcement officers indicating a maximum period of some two hours. It is clear that neither of these estimates of time were taken up with constant interrogation. By the defendant’s own testimony he was allowed freedom of movement within the police station and consulted with his father on various times during his detention. It appears that the defendant’s father was at the police station during the interrogation and consulted with the defendant during the period in question. It also appears from the record that the defendant actually made his inculpatory statement after a relatively short period of time and that the remaining interrogation pertained to other and unrelated alleged offenses committed by the defendant.

As to the defendant’s complaint that his rights were explained to him but one time, our Supreme Court has held in People v. Hill, 39 Ill2d 125, 233 NE2d 367 (1968):

“It should be made perfectly clear that once Miranda’s mandate was complied with at the threshold of the questioning, it was not necessary to repeat the warnings at the beginning of each successive interview.”

From our examination of the record, we are of the opinion that the defendant was effectively admonished as to his Constitutional rights and that the defendant knowingly and effectively waived those rights. We are further of the opinion that the court did not err in the admission of the inculpatory statements into evidence.

The defendant’s second allegation of error is that the court incorrectly denied the defendant’s motions for mistrial when certain witnesses testified as to other crimes for which the defendant was being investigated. The first of such incidents occurred during the cross-examination of a law enforcement officer. During this sequence the law enforcement officer was asked by the defendant’s counsel whether or not the defendant was picked up based upon an identification from a photograph. The law enforcement officer answered that the defendant was, “picked up on information furnished by the clerk of the store.” The defendant reasons that this evidence injected evidence of unrelated crimes into the testimony since the offenses for which the defendant was being tried did not involve a store nor any type of clerk.

The second incident occurred when another law enforcement officer was testifying concerning the inculpatory statement given by the defendant. Here again the law enforcement officer while being cross-examined by the defendant’s counsel, when asked whether a secretary at the police station was present, made the following reply:

“She wasn’t in the office at the time we were questioning him, she was brought into the office to take a statement from him which was on the robbery.”

We find no merit as to the second incident inasmuch as one of the offenses with which the defendant was charged was the offense of robbery. We note that the same observation was made by the trial court at the time that the defendant made his motion for mistrial. We concur with the court’s ruling.

As to the other incident it should be observed that the statement complained of was brought out by the persistence of counsel for defendant on cross-examination. It should be further observed that the answer was responsive to the question. Under these circumstances the State will not be held responsible for the prejudicial testimony. People v. Luckey, 90 Ill App2d 325, 234 NE2d 26 (1967). Furthermore, we note that the defendant during his case testified at length to the things complained of, in that he testified that when arrested he was told the police wanted to talk to him concerning a robbery of a liquor store. Therefore, it was the defendant himself who offered the most prejudicial testimony as to unrelated crimes; whatever prejudice the defendant suffered was through his own testimony.

The last allegation of error concerns an allegation of improper remarks during closing argument. During the closing argument the Assistant State’s Attorney made two references which the defendant contends deprived him of a fair trial. The defendant alleges that most serious error was committed when the defendant was referred to as a hardened criminal.

In regard to the State’s Attorney’s reference to the defendant as a hardened criminal, our examination of the record reveals that the reference must be considered in the context in which it appears. The defendant’s attorney characterized the defendant in his closing argument as a young, innocent boy from a good family and one incapable of committing “those horrible things.” The State’s Attorney in his rebuttal argued that any perón who committed the crime of rape upon a 65-year-old-woman had to be a hardened criminal no matter what his age. The references to the defendant as a hardened criminal were each in response to the argument of the defendant’s counsel and were based upon the evidence adduced during the trial. When examined within its context we find the argument to be both responsive and within the legitimate bounds of argument; defendant cannot complain of argument that is invited by defense counsel. People v. Woodeley, 67 Ill App2d 380, 206 NE2d 743 (1965). The second incident alleged to be erroneous by the defendant involved a reference by the Assistant State’s Attorney to the trends of the court’s decisions. The defendant finds the following sequel objectionable:

“You know what the trends are today. You know how police officers must act in view of the Court’s decision. You don’t have to. . . .”

at which point the defense counsel’s objections were sustained. The argument is apparently a criticism of the courts, which we find inappropriate, but it is difficult to perceive how the argument could be interpreted as so prejudicial as to require a new trial where evidence of guilt had been clearly established. People v. Martin, 4 Ill2d 105, 122 NE2d 245. The prosecutor had not completed his thought since the defendant objected before the sentence was finished and that objection was sustained and the jury instructed to disregard.

For the reasons stated the judgment is affirmed.

Judgment affirmed.

CLARK and GOLDENHERSH, JJ., concur.

       Miranda v. Arizona, 384 US 436, 86 S Ct 1602; Escobedo v. Illinois, 378 US 478, 84 S Ct 1758.