author: MR. PRESIDING JUSTICE ADESKO

text:
    Marshall Levis, Plaintiff-Appellant, v. Department of Registration and Education of State of Illinois, and John C. Watson, as Director of Department of Registration and Education of State of Illinois, Defendants-Appellees.
    Gen. No. 52,994.
    First District, First Division.
    November 10, 1969.

      Cecil E. Magid and Grossman, Kasakoff, Magid & Silverman, of Chicago, for appellant.
    William J. Scott, Attorney General of State of Illinois, of Chicago (Francis T. Crowe and Bruce J. Finne, Assistant Attorneys General, of counsel), for appellees.
   MR. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

This is an administrative review action. Plaintiff appeals from an order of the Circuit Court affirming a “revocation order” entered by the Department of Registration and Education of the State of Rlinois (hereinafter referred to as the Department), which revoked the certificate of registration of Marshall Levis, O.D., to practice optometry in the State of Illinois.

The revocation order was entered on May 5, 1967, when John C. Watson, the Department’s Director, adopted the findings and recommendations of the Optometric Examining Committee which had conducted an extensive hearing into plaintiff’s alleged violation of the Illinois Optometric Practice Act, Ill Rev Stats, c 91, § 105.1 et seq. (1965). The proceedings commenced on March 11, 1965, by the filing of a complaint against Marshall Levis, alleging several violations of the Act. The grounds for revocation concerned the plaintiff’s failure to notify the Department of a change of address of his optometric office location; the plaintiff’s conviction for practicing optometry without a license in the State of Indiana; and the plaintiff’s office association and engagement in optometric services with the Marsh Optical Co., Inc., an Illinois Corporation, to establish a common scheme or plan to enable the plaintiff to obtain unfair economic advantage over other practitioners of optometry in the general area.

A hearing was conducted before the Optometric Examining Committee, which was commenced on July 12, 1965, and terminated when the Committee submitted its findings and recommendations on November 30, 1966. The Committee concluded that sufficient evidence had been presented to warrant the revocation of plaintiff’s certificate of registration based upon the alleged violations contained in the complaint of March, 1965.

Plaintiff’s brief and argument raised the issue of mootness, the sufficiency of the evidence in support of the revocation, and an issue regarding the alleged prejudice of the hearing.

The plaintiff has established, without contradiction of the appellees, that the Department continued to renew the plaintiff’s certificate of registration while the revocation proceedings were continuing. Thus, the Department accepted the plaintiff’s application for a renewal certificate after the filing of the instant complaint and issued subsequent annual certificates to the plaintiff commencing on May 1,1965 and May 1,1966. It is plaintiff’s contention that this action by the Department rendered the revocation proceeding moot and constituted a final determination of the charges brought against him. In support of this contention, the plaintiff places great emphasis upon a group of related cases involving the revocation of an individual’s license to sell motor vehicles. Goers v. Carpentier, 27 Ill App2d 355, 169 NE2d 858 (1960); People ex rel. Carpentier v. Goers, 20 Ill2d 272, 170 NE2d 159 (1960); Carpentier v. Goers, 23 Ill 2d 246, 177 NE2d 858 (1961). The licensee in these cases, including Goers v. Carpentier, 27 Ill App2d 407, 169 NE2d 845 (1960), had his license revoked by the Secretary of State and subsequent applications for renewal were denied on the strength of the findings in support of the prior revocation. In the instant case, plaintiff argues that these cases are conclusive upon the proposition that the subsequent issuance of certificates of registration rendered the administrative proceedings moot. We do not agree with plaintiff’s interpretation of the Goers cases, nor do we find merit in this particular argument.

First of all, the Goers cases did not consider the question of the effect of subsequent renewals of a license upon a pending revocation proceeding. On the contrary, the Goers decisions involved the consequences of a stay order entered upon a revocation determination and the interpretation that follows in a subsequent administrative review of that decision where the license had expired before the judicial review was completed. The principles involved in these decisions are not germane to the issue in this case, with the exception that the Appellate Court of the Fourth District, in the Goers case, 27 Ill App2d 355, 169 NE2d 858 (1960), dealt with a question of mootness of an administrative review action where the term of the license had expired before the trial court had conducted administrative review proceedings. Plaintiff has attempted to apply that mootness argument to the administrative proceeding in the instant case. LaSalle Nat. Bank v. City of Chicago, 3 Ill 2d 375, 121 NE2d 486 (1954). We believe the analogy to the Goers cases is not supported in fact or law. Furthermore, the Goers decisions dealt with other related questions concerning the application of res judicata of the revocation order to the subsequent denial of license renewal and the evidentiary matters with regard to justifying the subsequent denial of renewal applications. Childers v. Illinois Liquor Control Commission, 67 Ill App2d 107, 213 NE2d 595 (1966).

In the instant case, the mootness argued by the plaintiff was directed at the Department’s complaint due to the reissuance of plaintiff’s certificate of registration. It is interesting to note that the Department’s issuance of the subsequent certificates to the plaintiff has avoided the situation that caused the vigorous and extended litigation in the Goers cases. Plaintiff’s argument is that the Department had a duty to refuse to issue renewal certificates during the pendency of this revocation proceeding. We believe this is an incorrect construction of the Statute which allows the Department to exercise discretion in dealing with optometrists’ certificates in section 105.13 of chapter 91, Ill Rev Stats (1965), wherein it is stated:

“The Department of Registration and Education may either refuse to issue, or may refuse to renew, or may suspend, or may revoke any certificate of registration, and it is the duty of the said Department to so refuse, suspend, or revoke any such certificate of registration, for any one or any combination of the following causes . . . .”

It is significant to emphasize that the Department is empowered to revoke “any certificate of registration” regardless of when the revocation has been ordered. We do not agree with plaintiff’s contention that to avoid mootness in the instant revocation proceeding, the Department was required to reissue an amended complaint after each certificate of registration that was issued to the plaintiff. This would cause an unnecessary burden upon the administrative agency and would be irrelevant to the issues which were joined by the complaint of March, 1965. The delay of the hearing of this complaint, the recommendations made by the Committee and the revocation order were extended over a long period of time. However, we do not feel that this is a basis for denying the Department’s power in proceeding against the plaintiff. Quite the contrary, we feel the Department’s renewal of the plaintiff’s certificate during this proceeding was a benefit to him. Accordingly, we are persuaded to hold that the reissuance of the subsequent certificates to a certificate holder during the pendency of a revocation proceeding does not render the administrative procedure moot, nor does that fact constitute a final determination of the alleged violations of the applicable statutory provisions.

Plaintiff next contends that the Examining Committee conducted themselves in a prejudicial manner to the derogation of his constitutional right to due process at the hearing of this matter. The appellant argues that certain statements made by the legal adviser and the Committee chairman manifested the prejudicial environment of this hearing. We believe that a careful examination of the entire record shows that the hearing was conducted on an impartial basis and that the statements relied upon by plaintiff were taken out of context. In furtherance of plaintiff’s prejudice argument, he notes that he was called by the Committee’s legal adviser under section 60 of the Civil Practice Act, chapter 110, Ill Rev Stats (1967). Whatever impropriety that may be argued from this procedure, the answer lies in the fact that the Department is empowered by section 105.14, chapter 91, 111 Rev Stats (1965), to subpoena any person to testify before a hearing and “to take testimony either orally or by deposition or both, with the same fees and mileage and in the same manner as prescribed by law in judicial procedure in civil cases in Courts of this State.” We are of the opinion that this statutory provision sufficiently justified the procedure employed in calling the plaintiff as a witness for the Department and did not constitute error.

Finally, the appellant challenges the findings of the hearing committee, as adopted by the Director in the revocation order, as contrary to the evidence. We must analyze these contentions in light of the established rules that a reviewing court may not substitute its judgment for that of an administrative agency where substantial evidence supports a finding of that agency. Gordon v. Board of Trustees of Firemen’s Pension Fund of City of Joliet, 77 Ill App2d 234, 222 NE2d 28 (1966), and that on administrative review the court’s function is limited to ascertaining if the pleadings and decision of the administrative agency are against the manifest weight of the evidence, Rutledge v. Department of Registration and Education, 77 Ill App2d 103, 222 NE2d 195 (1966).

Upon a careful reading of the record, we are of the opinion that there was substantial evidence presented to sustain the revocation of plaintiff’s certificate of registration. The evidence shows that the plaintiff did not notify the Department of his change of office for practicing optometry for a two-month period, in violation of section 105.11 as a ground for revocation under section 105.13 (j) of the Act. The record also discloses a violation of section 105.13(a) in that a conviction of the plaintiff for the illegal practice of optometry in Indiana was properly proven. It is a fact that a prior conviction alone is sufficient to uphold the revocation under that provision.

There was sufficient evidence to prove that plaintiff had entered into an association with Marsh Optical Company in violation of section 105.13(i), (m), and (r) which prohibit an optometrist from advertising or associating with one who advertises optometric services. The photographs introduced into evidence reveal that there were eyeglass displays visible to the public from the street; that the sale of eyeglasses, frames and lenses were likewise advertised from the Marsh Optical Company; and that plaintiff’s offices were contained within the same building as Marsh Optical Company and were connected by a full-length clear glass door containing plaintiff’s name and advertised profession of optometrist and access to plaintiff’s place of business was available to the public through the premises of the optical company. Furthermore, it was uncontroverted that the premises leased by plaintiff and the optical company were contiguous, with the leases having been negotiated contemporaneously and involving the same individuals. The evidence also established that the day to day operations of the optical company were carried out by plaintiff, including the advertising, ordering of inventory, signing of checks and fixing of prices. The evidence further showed that the plaintiff and the optical company carried on a referral of patients for the enhancement of each other’s economic advantage.

Without going into a further repetition of the evidence as presented, we are of the opinion that sufficient evidence was presented to justify the revocation of plaintiff’s certificate of registration.

The findings and order of the Department of Registration and Education of the State of Illinois and the order of the Circuit Court of Cook County are approved.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sylvester Webb, Defendant-Appellant.
    Gen. No. 53,094.
    First District, First Division.
    November 10, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel) , for appellant.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

In a 2-count indictment, defendant was charged in Count I with the offense of theft of “an automobile, of a value in excess of one hundred and fifty dollars,” in violation of chapter 38, section 16-1 (a) of the 111 Rev Stats 1965, and in Count II with the offense of “criminal trespass to vehicle,” in violation of chapter 38, section 21-2. In a bench trial he was found guilty on both counts “in manner and form as charged in the indictment.” On Count I he was sentenced to the penitentiary for a term of two to four years. No sentence was imposed on Count II.

On appeal defendant contends that “the material allegation in the indictment that the value of the car was in excess of $150 was not proved.” The “penalty” provision of section 16-1 provides that a person first convicted of theft of property exceeding $150 in value shall be imprisoned in the penitentiary from one to ten years, while a person first convicted of theft of property not exceeding $150 shall be fined or imprisoned in a penal institution other than a penitentiary not to exceed one year. HI Rev Stats 1965, c 38, § 16-1.

The complaining witness, Fred McCullough, testified that on September 30, 1967, he owned a 1963 Chevrolet convertible, which he had purchased on September 24, 1967, for $1,000, approximately a week before the theft. He testified that he parked the car outside of his home at 10:30 p. m. on September 30, and the next time he saw his car was the following day at the auto pound. He did not know defendant, nor did he give him permission to use his car. State’s Exhibit 1 was a bill of sale, which showed that the complaining witness purchased the car for $1,000 on September 24, 1967.

The record indicates that after both sides rested the court announced, “There will be a finding of guilty of theft in manner and form as charged in the indictment.” The attorney for the defendant then asked if the court was making a finding that the value of the automobile was $150. The court replied that the finding of “guilty” had nothing to do with the “value,” and “that is a matter for aggravation and mitigation.” Later, and at the hearing in aggravation and mitigation, the court, over defendant’s objection, accepted the testimony of an alleged expert witness that an automobile similar to the one in question had a value of $650, or at least $400. The court then announced, “From the testimony in the record, from the testimony of this man, the Court finds, as a matter of law, that the fair market value on the date of the theft exceeded a hundred and fifty dollars.”

Defendant argues that the evidence of the State did not meet the requirement of proof of value exceeding $150 beyond a reasonable doubt (People v. Mosby, 25 Ill2d 400, 403, 185 NE2d 152 (1962)); that the value of the stolen goods, for the purposes of a theft prosecution, is not based on cost but on its fair cash market value. (People v. Hansen, 28 Ill2d 322, 340, 192 NE2d 359 (1963).) Defendant’s authorities also include People v. Kurtz, 69 Ill App2d 282, 216 NE2d 524 (1966), where it is said (p 288):

“In this case, absent proof beyond a reasonable doubt of the value of the property stolen, the theft was a misdemeanor and subject only to the punishment applicable thereto. The value which makes it a felony rather than a misdemeanor is the fair cash market value of the property at the place and at the time of the theft.”

After examining the authorities of both sides, it is obvious that to sustain a felony conviction in a theft prosecution, value is a material allegation to be included in the indictment and of which proof must be made during the trial and specifically found by the court or by a jury and incorporated in its verdict. People v. Harden, 42 Ill2d 301, 247 NE2d 404 (1969).

We think the guidelines to be used here are set forth in People v. Tassone, 41 Ill2d 7, 241 NE2d 419 (1968) ; and People v. Harden, 42 Ill2d 301. In 41 Ill2d 7, it is said (P 12):

“In order to sustain a conviction of a felony the value of the property stolen must be shown to be in excess of $150. ... It is true that in this case there was no direct proof of value. However, it has been well recognized that judicial notice may be taken of the fact that property has some value, although the courts have been reluctant to take notice of any specific value. ... We see no valid reason why notice may not be taken in a case such as this that the property has a value of over $150. Courts do not operate in a vacuum; they are presumed to be no more ignorant than the public generally, and will take judicial notice of that which everyone knows to be true. ... To say that it is not common knowledge that a large tractor and trailer are worth more than $150 is to close our eyes to reality. We do not take judicial notice of the exact value of the property but we do take notice that it is worth more than $150.”

In 42 Ill2d 301, 247 NE2d 404, it is said (p 306):

“ [T]he required standard of fair cash market value can be established by cost plus other proof. (People v. Rose, 19 Ill2d 292; People v. Todaro, 14 Ill2d 594.) The uncontroverted evidence described this ring as containing one large diamond and numerous smaller diamonds of a ‘nice size.’ This evidence adequately-established a fair, cash market value in excess of $150, despite the lack of evidence that the ring was not affected by obsolescence, depreciation or deterioration. People v. Rose, 19 Ill2d 292.
“. . . The defendant correctly states that numerous opinions of this court have held that when the place of punishment, and its duration, depend upon the value of the property stolen, that value is a material element of the offense which must be specifically found by the jury and incorporated in its verdict. (People v. Swinson, 406 Ill 233; People v. Crane, 356 Ill 276; People v. Valanchauskas, 324 Ill 187.) The requirement is not burdensome, and it eliminates uncertainty.

After examining this record in the light of the foregoing pronouncements, we find that the testimony of the complaining witness presented during the trial and corroborated by Exhibit 1, that he paid $1,000 for the car a week before its theft, was sufficient to establish the value of the stolen car to be in excess of $150. Although the court indicated that the “finding of guilty of theft in manner and form as charged in the indictment” did not include a finding of “value,” and proceeded on the assumption that “value” was a matter for proof at the hearing in aggravation and mitigation, the essential and material elements of the indictment were proved during the trial proper and before the guilty finding by the court.

The failure of the court in this case to make a specific finding of value in finding defendant guilty of theft did not prejudice defendant. Since the evidence of value was sufficient and uncontradicted, a general finding that defendant was guilty of theft in the manner as charged in the indictment was adequate to sustain a felony conviction. People v. Wilson, 84 Ill App2d 269, 275, 228 NE2d 131 (1967); People v. Tomaszek, 54 Ill App2d 254, 261,204 NE2d 30 (1964).

For the reasons given, the judgment of the Circuit Court of Cook County is affirmed.

Affirmed.

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


author: MR. JUSTICE BURKE

text:
    People of the State of Illinois, Plaintiff-Appellee, v. John Battle and Joseph Cunningham, Defendants-Appellants.
    Gen. Nos. 52,073, 52,074.
    First District, Second Division.
    November 12, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, of counsel), for appellants.

      Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Michael D. Stevenson, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE BURKE

delivered the opinion of the court.

Defendants were found guilty by a jury of the unlawful sale of narcotics and each was sentenced to a term of 20 to 30 years in the penitentiary. They appeal.

Prior to the trial of this cause, a motion to suppress certain evidence was filed on behalf of both defendants. At the hearing on the motion, Chicago Police Officer William Walsh testified that he had a conversation at police headquarters on July 16, 1965 with Theodore Hall, a police informant, regarding a controlled purchase of narcotics. Officer Walsh testified that Hall had been successfully employed by him and his partner on five or six prior occasions, and by the police generally on numerous occasions, for such purpose.

The officer testified that Hall telephoned defendant Cunningham and arranged to meet him that same day in a park at 63rd Street and Stony Island Avenue in Chicago. Hall was then “strip searched,” and when it was determined that he had neither money nor narcotics on his person, he was given $40 in prerecorded currency with which to effect the purchase.

Officer Walsh testified that he and his partner, Officer Walter Kienzle, transported Hall to the vicinity of 63rd and Stony Island and that they kept Hall under observation from a C.T.A. elevated platform for several minutes. Cunningham, who had been seated on a park bench nearby, approached Hall a few minutes after the latter arrived in the park and the two men engaged in a short conversation. Cunningham and Hall then walked west along the north side of 63rd Street to Harper Avenue where they entered a tavern on that corner. The police officers maintained their surveillance from across 63rd Street. Cunningham and Hall remained in the tavern a short while, after which Cunningham exited the tavern alone..

Officer Walsh testified that, upon observing Cunningham leaving alone, the officer crossed the street and entered the tavern, and was informed by Hall that Cunningham had gone to “meet his connection,” and that he would “be right back.” The officer returned to his position across the street and observed Cunningham return and reenter the tavern. A few minutes later Cunningham again exited the tavern alone and had a short conversation with defendant Battle in front of the tavern.

Cunningham then motioned to Hall to come out of the tavern and the three men walked north along the east side of Harper Avenue to an apartment building at 6227 Harper. Cunningham and Battle entered the building, while Hall remained outside, and the two men returned a few minutes later. Defendant Battle then left Cunningham and Hall and proceeded westerly, while the latter two men walked north along Harper Avenue.

Officer Walsh testified that he and Officer Kienzle followed Cunningham and Hall and, after Hall gave a prearranged signal indicating that the purchase had been completed, Cunningham was stopped and placed under arrest. The officer testified that Cunningham stated at the time he was placed under arrest, “I’m just a patsy for this!” Cunningham was searched by Officer Walsh and $10 of the prerecorded funds were found on his person. Meanwhile, Hall had given Officer Kienzle two tinfoil packets. Cunningham was then placed in the custody of other officers who had arrived at the scene, and Officers Walsh and Kienzle went in search of Battle, who was found and arrested by the officers about 15 minutes later near 62nd Street and Dorchester Avenue. A search of his person revealed the balance of the prerecorded funds which had been given to Hall by the officers. The officers had no warrant for the arrest of either defendant. At the conclusion of Officer Walsh’s testimony, the motion to suppress the currency as evidence was denied.

On February 14, 1966, defendants filed a motion for a severance, which was allowed primarily because of the statement made by Cunningham at the time of his arrest, to the effect that he was “a patsy for this,” which was made outside the presence of Battle. Defense counsel also represented that a trial of both defendants together would be prejudicial to Cunningham inasmuch as Battle had a narcotics conviction in his record whereas Cunningham did not. When the matter came on for trial on September 14, 1966, the People made a motion to consolidate the trials of the two defendants. After the trial court was advised that the Cunningham statement would not be used by the People at trial and after it was determined that the defenses of the two defendants would not be antagonistic to each other, the motion to consolidate was allowed over objection of the defendants.

The evidence for the People adduced at trial through the testimony of Theodore Hall and Officer Walter Kienzle was generally the same as that taken at the hearing on the motion to suppress, with the exception that any conversation or statement made outside the presence of either or both of the defendants was not admitted into evidence.

In addition, Hall testified that after he and the two defendants had arrived at the apartment building on Harper Avenue, and before the two defendants entered the building, Cunningham requested money from him and he gave Cunningham the $40 in prerecorded funds. Hall also testified that as he and Cunningham proceeded northerly along Harper Avenue, Cunningham handed him two tinfoil packets, at which time Hall put on his jacket (which was the prearranged signal that the purchase had been completed). Cunningham was then placed under arrest and was searched, and Hall gave the tinfoil packets to Officer Kienzle; it was stipulated between the parties that the packets contained heroin and marijuana. Hall also admitted at trial that he was a narcotics addict.

Weldon Burris testified on behalf of the defendant and stated that at the time of trial he was a resident of the Cook County Jail. He testified that on the morning of July 16, 1965, between 10:00 a. m. and 11:00 a. m., he was present at a dice game in which both Battle and Cunningham were participants. Burris testified that Battle had won about $65 in the game, and that the game broke up shortly when it was announced that the police were on the way. The witness stated that he had known defendant Battle since 1938 or 1939. On cross-examination Burris testified that the dice game in question might have been held on the 15th day of July rather than the 16th. He further stated that he saw Battle while in jail and prior to the trial, but that he never discussed his testimony with him.

Officer Kienzle testified in rebuttal to matters which contradicted defense witness Burris’ testimony as to the whereabouts of the defendants at the time the sale of the narcotics was taking place.

Defendant Battle argues that, as to him, the denial of the motion to suppress the evidence was error, in that the search of his person and the seizure of the currency used as evidence against him were the result of an illegal arrest, made without a warrant or probable cause. We are of the opinion that the evidence adduced at the hearing on the motion to suppress showed that Officers Walsh and Kienzle had ample grounds to believe that Battle was involved in the sale of the narcotics to Hall, that they had probable cause upon which to arrest Battle without a warrant, and that the search incidental to that arrest and the seizure of the currency were consequently legal.

An arrest may be made without a warrant where the arresting officer has reasonable ground to believe that an offense has been committed and that the party sought to be arrested committed the offense. People v. Wright, 41 Ill2d 170, 173-174, 242 NE2d 180. Evidence not otherwise admissible to establish the guilt of an accused, may be relied upon in determining whether probable cause existed upon which an arrest without a warrant could have been effected. People v. McCrimmon, 37 Ill2d 40, 43, 224 NE2d 822.

Officer Walsh testified at the hearing on the motion to suppress the evidence that Hall, who had previously been successfully employed by the police on numerous occasions as an informer, arranged to meet with Cunningham for the purpose of effecting a purchase of narcotics. He further testified that Hall was searched and given $40 in prerecorded funds with which to effect the purchase, and that Hall was transported by the officers to the location where he had arranged to meet Cunningham. The officer testified that he observed Cunningham make contact with Hall and then observed both men walk to and enter a tavern at the corner of 63rd and Harper. When Cunningham was observed by the officer leaving the tavern alone, the officer entered the tavern and was told by Hall that Cunningham had gone to meet his connection and that he would return shortly. Cunningham returned to the tavern, again exited alone and spoke to defendant Battle outside the tavern. Hall was then summoned from the tavern and the three men proceeded to the apartment building on Harper Avenue. Both defendants entered the building, while Hall remained outside. Upon their return to where they had left Hall, Battle walked westerly, away from Cunningham and Hall, and the latter two proceeded north along Harper. Shortly thereafter Cunningham was placed under arrest, at which time he stated, “I’m just a patsy for this,” and a portion of the prerecorded funds was found on his person. Hall, at this time, gave the two tinfoil packets to the officers. In the light of these facts, the officers had reasonable ground to believe that Battle was implicated in the sale of the narcotics to Hall, and were justified in placing him under arrest and searching his person. See People v. Roberta, 352 Ill 189, at 193, 185 NE 253.

It is apparent that the cases cited by defendant Battle in support of this position are inapposite on their facts. See Beck v. Ohio, 379 US 89; Mapp v. Ohio, 367 US 643; People v. Johnson, 61 Ill App2d 319, 210 NE2d 344; and People v. Chatman, 322 Ill App 519, 54 NE 2d 631.

Defendants next contend that they were not proven guilty beyond a reasonable doubt, inasmuch as the People’s case rests entirely upon the uncorroborated testimony of Theodore Hall, an admitted narcotics addict. (People v. Watkins, 68 Ill App2d 389, 216 NE2d 494.)

Contrary to defendants’ contention, there was substantial corroboration of Hall’s testimony, as revealed by the foregoing review of the facts. Cunningham was arrested immediately after the sale was completed and some of the prerecorded funds were found in his possession; Battle was located and arrested shortly thereafter and the balance of the prerecorded funds was found in his possession. The fact that Hall was out of the officers’ sight for a short period of time does not of itself prove fatal to the People’s case. People v. Hill, 83 Ill App2d 116, 227 NE2d 117; People v. Johnson, 87 Ill App 2d 390, 231 NE2d 647; People v. Golliday, 20 Ill2d 29, 169 NE2d 263.

The case of People v. Reddick, 107 Ill App2d 123, 245 NE2d 873, relied upon by defendants in this regard is not in point. Defendant Reddick and the informer were with other people at the time the alleged sale of the narcotics occurred. There was no evidence directly linking Reddick to the sale, other than the testimony of the informer, who admitted that he was a narcotics addict and that he was awaiting trial for sale and possession of narcotics, and who further stated that he volunteered to participate in the controlled sale because he thought that the authorities would “go easier” on him. Further, none of the prerecorded funds was found on Reddick.

Defendants finally contend that it was prejudicial error for the trial court, without prior notice to the defendants or their counsel, to consolidate their trials.

Defendants’ motion for a severance was allowed some seven months prior to the date set for trial, primarily on the ground of the statement which Cunningham made at the time of his arrest. There was also a representation at that time by the defense counsel that Battle had a prior narcotics conviction which would tend to prejudice Cunningham in the eyes of the trier of fact, inasmuch as Cunningham had no such prior record. When the People’s motion for consolidation was presented, the prosecutor represented to the court that the Cunningham statement would not be used at trial. Defense counsel was then asked to specify in what manner the defenses of the defendants were antagonistic to each other, and defense counsel stated only that “the defenses of the two parties would not be similar.”

Defense counsel was again asked in what manner the defenses would be antagonistic, and counsel, as before, referred to the past records of the two defendants. The trial court was assured by the prosecutor that both men had past records of infamous crimes.

Joint defendants will be entitled to a severance of their trials only where it is shown that their individual defenses are in fact antagonistic to each other. People v. Dolgin, 415 Ill 434, 114 NE2d 389; People v. Banks, 103 Ill App2d 180, 243 NE2d 669. Defendants asserted no grounds below and assert none here, other than speculation, which would have warranted a denial of the People’s motion for consolidation of the trials.

Defendants cite the case of People v. McNeil, 102 Ill App2d 257, 243 NE2d 576, as standing for the proposition that it is an abuse of the trial court’s discretion to force a defendant to trial upon a short notice. A reading of the McNeil case shows that it is not in point, for the reason that the defendant there was forced to go to trial although his attorney was appointed a short while before and had no defense to present. The court held that it was error to refuse to allow defendant’s motion for a continuance for time to prepare a defense. Here the question was not whether the defendants had defenses, but whether the defenses were antagonistic.

The judgments are affirmed.

Judgments affirmed.

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


author: PRESIDING JUSTICE LYONS.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Raymond J. Szymezak, Defendant-Appellant.
    Gen. No. 53,159. (Abstract of Decision.)
    First District, Second Division.
    November 12, 1969.

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

PRESIDING JUSTICE LYONS.

Not to be published in full.


author: MR. JUSTICE ENGLISH

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Wilbur Branscomb, Defendant-Appellant.
    Gen. No. 53,469.
    First District, Fourth Division.
    November 12, 1969.
    Rehearing denied December 10, 1969.

      Carl M. Walsh, of Chicago, for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Kenneth L. Gillis, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   MR. JUSTICE ENGLISH

delivered the opinion of the court.

OFFENSE CHARGED

Armed robbery. HI Rev Stats (1967), c 38, § 18-2. JUDGMENT

After a bench trial, defendant was found guilty and sentenced to 7 to 12 years in the penitentiary.

POINTS RAISED ON APPEAL

1. Defendant was denied right to counsel when represented by a public defender whom he had not met prior to trial.

2. Defendant was denied his right to trial by jury when a request to revoke his waiver of jury trial was denied.

3. The trial court erred by receiving into evidence records of defendant’s prior felony convictions without proof of identity.

4. Defendant was denied the right to compel attendance of newly discovered witnesses in connection with his motion for a new trial.

5. Defendant was denied adequate representation by counsel.

6. Defendant was not proven guilty beyond a reasonable doubt.

EVIDENCE

James Gresham, for the State:

On January 3, 1968, at approximately 2:30 p. m., he was in the bedroom on the second floor of his home at 1717 East 74th Street in Chicago. Also present in the home were Geraldine Marshall, Tina Jones, and two children. He was called to the front door and saw two men (defendant and Van Leonard) who said they had some whiskey for sale. They showed him a box which they then uncovered, but it was empty. When he looked up, defendant was pointing a gun at him.

The two men rushed him downstairs where he and Tina Jones were tied up. Eugene Johnson entered the home right after this. He was also tied up, and Geraldine Marshall was made to sit down and hold her daughter on her lap. Defendant put the gun in a pillow and held it to witness’ head, saying he would kill witness if he didn’t tell him where the money was. Defendant then removed the pillow and struck witness above the right eye with the gun.

He was taken upstairs to his bedroom where Leonard took several articles, including a shotgun, a rifle, cameras, a television set, a radio, two rings, and a watch, in addition to $168. Later, defendant again searched the bedroom and took more cameras, a jacket, cuff links, and different articles. (He identified a number of these articles as his belongings which had been taken by defendant and Leonard.)

During the search of the upstairs, Roy Armstrong and Aline Johnson came to the front door and they, too, were tied up by defendant and Leonard. Defendant and Leonard then carried the articles to the car. He noticed a third man who came to the back door and asked what was taking so long. They left after about 45 minutes.

The next time he saw his ring was on January 11, with Officer Haley and another officer, at a pawnshop. He saw his jacket at the police station sometime thereafter, and it was being worn by defendant.

The police called him and said they might have a suspect. Johnson viewed the suspect first in another room. He did not hear anything Johnson said, nor did Johnson say anything to him. Witness then saw defendant wearing his coat and “knew who he was right away.” He approached defendant and gave him a “crack,” but the police stopped him.

Tina Jones, for the State:

She identified defendant in court as the person who had entered the house on the day in question. The rest of her testimony was essentially the same as Gresham’s.

Eugene Johnson, for the State:

When he entered the house, defendant tied him up and made him lie on a couch. His testimony as to the incident in question corroborated that of Gresham. He next saw defendant at the police station where he was wearing Gresham’s jacket, and he identified defendant as soon as he was brought into the room.

Iretta Rutt, for the State:

She was an appraiser for loans for First State Pawners on January 4, 1968, when two men brought a ring in to be appraised. She identified defendant as one of the men. She appraised the ring and gave the men a $300 loan on it.

Jesse Macklin, for the State:

He saw the camera in evidence on January 13, 1968, when defendant asked for, and witness made, a loan of $30 on it.

John Lyons, Police Officer, for the State:

He arrested defendant on January 15, 1968, at 4:30 p. m. He identified the jacket in evidence as the one defendant was wearing when he was arrested. Defendant had a mustache when arrested, but when he was brought out for the showup, was clean-shaven. Defendant had been alone for part of the time at the station.

John Todd, Police Officer, for the State:

He and Lyons arrested defendant, and his testimony was substantially the same as Lyons’.

Ralph Mitchell, Police Detective, for the State:

On January 15, 1968, he searched and interrogated defendant at the station. He removed a comb, fingernail clipper, and $115.22 from defendant. He first noticed defendant wearing a mustache, but it was gone when defendant was brought out of the lockup.

Fred Haley, Police Detective, for the State:

His testimony corroborated that of Detective Mitchell.

Van Leonard, for the defense:

On January 3, 1968, he and Bob Harris were in a town house at 1717 East 74th Street from which certain items were taken, including a jacket like the one offered in evidence. He gave the jacket to a fellow named Cat-Eye. The other items that were taken were some cameras, a diamond ring, a television set, and shotguns. He and a man named Bob Johnson pawned the diamond ring at a shop downtown. Defendant did not receive any of the proceeds.

Before testifying at the trial, he talked briefly to defendant in the “bullpen,” but had never seen him before that day.

Witness had previously been convicted of burglary, robbery, and attempted murder. At the time of this trial he was serving a 10-year sentence for robbery.

Wilbur Branscomb, on his own behalf:

He had never seen James Gresham prior to January 15, 1968, when he was struck by him at the police station, nor had he ever been in the house at 1717 East 74th Street. The jacket he was wearing at the station was purchased from a man named Cat-Eye, whom he had known for 6 or 7 years but whose real name he didn’t know. Cat-Eye brought the jacket to his home and he paid $35 for it. Present in the home were his “common-law wife,” Maxine, and two kids, Larry, his son, who is 17, and Catrece, aged 2.

While his real name is William L. Branscomb, he had been known under the name of William Lewis and several other names. (Defendant was indicted under the name Wilbur Branscomb.)

OPINION

Defendant’s first contention is that he was denied right to counsel when represented by a public defender whom he had not met prior to trial. At his arraignment, defendant requested the appointment of a “bar association attorney.” No cause being shown for such appointment, the request was denied, and the Public Defender was appointed. Ill Rev Stats (1967), c 34, § 5604. This is within the authorized discretionary procedure, as codified in Ill Rev Stats (1967), c 38, § 113-3 (b), where it is stated in part:

In all cases, except where the penalty is a fine only, if the court determines that the defendant is indigent and desires counsel, the Public Defender shall be appointed as counsel. ... if the defendant requests counsel other than the Public Defender, the court may appoint as counsel a licensed attorney at law of this State .... [Emphasis supplied.]

The chief judge then advised defendant to renew his request of the trial judge. There is no indication in the record that such a request was made, and we, therefore, consider it waived.

A related argument by defendant concerns his objections at trial to the particular attorney assigned to him by the Public Defender. Defendant had prepared for trial with one Assistant Public Defender (Oramenos), whereas, at trial, he was represented by another Assistant (Darragh). Upon defendant’s objection to this new attorney, the court inquired of Darragh whether he had Oramenos’ notes. He replied that they “had conferred as recently as last evening” concerning the case. Previously, the court had informed defendant that Oramenos was an able lawyer and that the court had observed him on several occasions. The court offered to continue the case to give defendant an opportunity to hire a lawyer. Defendant failed to respond to this offer, but continued to insist that Oramenos was the individual appointed to represent him. At this point, the jury was called in and the court denied defendant’s request, then made, for time to retain his own counsel, indicating that the application came too late after the court had called in the jury.

We agree with the court’s disposition of this matter. Defendant’s attempts to exercise his various procedural options (discussed further under a later point) seem to have been used to delay trial rather than for their avowed purposes. There is nothing to indicate that defendant’s counsel failed to provide “effective assistance.” On the contrary, review of the record indicates that Darragh conducted a well prepared and thorough defense. We find that defendant was not prejudiced in his representation by the Public Defender, and defendant’s argument that he was entitled to select a particular Assistant to represent him, is absurd. We also find that defendant had waived his right to retain private counsel.

As to defendant’s second contention — we recognize that “[ejvery person accused of an offense shall have the right to a trial by jury unless understandingly waived by defendant in open court” (Ill Rev Stats (1967), c 38, § 103-6), but defendant’s contention that this right was denied him in the instant proceedings is untenable. On the first day of trial, defendant’s attorney noted that trial was to be by jury and voir dire was begun the following day. Thereafter, the following colloquy transpired:

THE DEFENDANT: “I would like to waive the jury.”
THE COURT: “We have four of them already selected. I believe it’s a little late for waiving, isn’t it?”
THE DEFENDANT: “Well, your Honor, complications I didn’t anticipate came up.”
THE COURT: “We already picked four. We only have eight more to go and you seem to — you are sort of skeptical about the Public Defender. I think the jury are the best people to try your case.”
THE DEFENDANT: “I feel it’s my right — ”
THE COURT: “Let the record show that the defendant together with his counsel in open court approached the bench and he desires to waive the jury, although we started to select a jury. Under the law the Court advises him he has a right to do so but you must understand when you waive the jury you have no right to anything by a jury. When you waive it it means just that. The case comes before the Court and the Court tries the issues rather than the jury. Do you understand that?”
THE DEFENDANT: “Yes, sir.”
THE COURT: “You may sign the waiver and indicate your waiver.”
MR. BURNHAM (Ass’t State’s Attorney): “Do you understand once you waive the jury you have no further alternative to have a jury, then the Court will hear your case and you can’t later say you want to have a jury again. Do you understand that?”
THE COURT: “Do you understand that?”
THE DEFENDANT: “I understand what you said, yes.”

The court then discharged the jury, but on the following trial day defendant asked to withdraw his waiver. The court denied this request.

It is obvious that defendant’s right to trial by jury was “understandingly waived.” Ill Rev Stats (1967), c 38, § 103-6. See People v. Brownlow, 114 Ill App2d 458, 252 NE2d 685, and People v. Richardson, 32 Ill2d 497, 207 NE2d 453. The only issue before this court is whether defendant can properly revoke an express waiver after a partially selected jury has been dismissed at his instance. We believe that the constitutional right to trial by jury does not extend this far, and defendant’s attempt so to employ it was done solely to impede the administration of justice. If the exercise of this serious and valuable constitutional right were to be permitted in the on-again, off-again manner sought by defendant, it could become impossible ever to complete a trial, with or without a jury. We find that defendant’s trial was free from error in this regard.

Defendant also claims that the court erred by receiving into evidence records of defendant’s prior felony convictions without proof of identity. After defendant testified on his own behalf, the State offered into evidence certified records of one conviction of “William L. Branscomb” for burglary and three convictions of “William Lewis” for robbery. Over the objection of defendant’s attorney, the court admitted the records in evidence “for the sole purpose of impeachment and no other.”

Records of prior convictions are admissible for impeachment purposes. People v. Davis, 412 Ill 391, 402, 107 NE2d 607, and People v. Cuttley, 82 Ill App2d 321, 226 NE2d 479. Also, see Ill Rev Stats (1967), c 38, § 155-1. Where the defendant has gone by another name, as testified to by defendant in the instant case, evidence of prior convictions under either name is admissible for the limited function of impeachment, and proof thereof need not be made beyond a reasonable doubt. People v. Buford, 396 Ill 158, 71 NE2d 340. Further, defendant did not deny that he was the person referred to in the records, nor did he offer any contradictory evidence. A presumption of identity existed, therefore, and the introduction of the records was proper. People v. Lawson, 331 Ill 380, 163 NE 149.

At the hearing on defendant’s motion for a new trial, reference was made to the fact that the man called Cat-Eye, from whom defendant testified he had purchased the stolen jacket, was named Walden Smith and was on arraignment in another court. Nothing further was stated and the court was left to draw the inference that defendant was seeking a new trial on the ground of newly discovered evidence. Defendant contends that the denial of the motion was a deprivation of his right to compel the attendance of witnesses. Defendant’s mention of Cat-Eye’s whereabouts wholly fails to support this contention. As stated in People v. Baker, 16 Ill2d 364, at pages 373-4, 158 NE 2d 1:

A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion. (United States v. Jakalski, (7th cir) 237 F2d 503.) To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. (People v. Holtzman, 1 Ill2d 562; People v. Harrison, 359 Ill 295.)

The trial court properly denied defendant’s motion for a new trial.

Defendant contends that he was not afforded adequate representation by counsel with respect to identification testimony and with respect to the motion to suppress physical evidence which was denied by the court after a pretrial hearing. The latter contention is based on the Public Defender’s failure to determine, through questioning, whether there was probable cause for defendant’s arrest, which might have resulted in the suppression of the seized evidence. We do not find this argument, persuasive, under the circumstances. The only evidence seized — some money — was of little probative value, certainly not critical to the State’s case, and did not result in any prejudice to defendant. See People v. Washington, 81 Ill App2d 90, 225 NE2d 472.

In connection with the identification testimony of the witnesses at trial, defendant makes two arguments: First, his counsel made no motion to suppress the testimony, which failure denied defendant effective representation; and, second, his compelled appearance at the “showup” without presence of counsel requires reversal in light of United States v. Wade, 388 US 218, Gilbert v. California, 388 US 263, and Stovall v. Denno, 388 US 293.

These issues arise in the instant proceedings because two witnesses, Gresham and Johnson, identified defendant, who was not represented by counsel, at a preindictment “showup” at the police station. The practice of “showups” has been condemned as being grossly suggestive, as stated in People v. Blumenshine, 42 Ill2d 508, 512, 250 NE2d 102:

A showing by police of a suspect standing alone, in what is often described as a “showup”, has been observed to carry with it a dangerous degree of improper suggestion.

However, if an in-court identification of defendant is made on the basis of prior observations independent of those derived from the showup, the conviction must be affirmed. People v. Blumenshine, 42 Ill2d 508, 250 NE 2d 102; People v. Cook, 113 Ill App2d 231, 252 NE2d 29. The witnesses’ prolonged observation (45 minutes) of defendant at Gresham’s home at the time of the crime, constitutes an origin sufficiently independent, and free from any subsequent taint of unfair identification procedure at the police station. It was therefore adequate to serve as the basis for the in-court identifications. See People v. Speck, 41 Ill2d 177, 192-193, 242 NE2d 208; People v. Nelson, 40 Ill2d 146, 151-152, 238 NE2d 378. Furthermore, it was held in People v. Palmer, 41 Ill2d 571, 572-573, 244 NE2d 173, that the lineup decisions of Wade, supra, Gilbert, supra, and Simmons v. United States, 390 US 377, “apply only to post-indictment confrontations.” Accordingly, defendant’s argument concerning counsel’s failure to suppress the testimony is without merit, as it does not demonstrate prejudicial incompetence. See People v. Kees, 32 Ill2d 299, 205 NE2d 729, and People v. Palmer, 31 Ill2d 58, 198 NE2d 839.

Defendant finally claims that the evidence does not establish defendant’s guilt beyond a reasonable doubt. On the contrary, we believe that it does. The consideration of contradictory testimony such as that offered by defendant and Van Leonard was a matter for the trier of fact. People v. Coulson, 13 Ill2d 290, 149 NE2d 96.

The judgment of the Circuit Court is affirmed.

Affirmed.

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


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Sal Wexler, Defendant-Appellant.
    Gen. No. 53,838.
    First District, Second Division.
    November 12, 1969.

      Sherman, Schachtman & Stein, of. Chicago (Jack G. Stein, Albert Brooks Friedman, and Gerald Nussbaum, of counsel), for appellant.
    Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Patrick T. Driscoll, Jr., Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

A complaint was filed in the First Municipal District of the Circuit Court of Cook County, charging defendant Sal Wexler with the offense of gambling in violation of 111 Rev Stats 1967, c 38, § 28-1 (a) (5). Defense counsel moved to suppress the results of a search of defendant’s person, but the motion was denied. Defendant waived a jury trial. Evidence was introduced by the State and defendant rested his case without offering any evidence. He was found guilty and fined $50.

In this court defendant alleges that the magistrate who heard the case did not have jurisdiction to try or sentence him; that the arrest and search was illegal and violated defendant’s constitutional rights; and that he did not understandingly waive his right to a trial by jury.

From the record it appears that on July 11, 1968, Officer Rohan of the Vice Control Division of the Chicago Police Department, watched defendant from across the street at 159 North Wabash Avenue, Chicago. Within a 20-minute period five people approached the defendant and handed him slips of paper with money which the defendant placed in his pocket. Officer Rohan, who had previously made about thirty arrests for gambling, arrested the defendant on that charge, believing he was accepting wagers, and a search of defendant’s person revealed seven slips of paper with $101 in currency. The slips represented wagers placed on various horses at several racetracks.

At the hearing on a pretrial motion to suppress the evidence of the slips and money, Officer Rohan testified he had arrested defendant because he suspected him of taking bets. The magistrate denied the motion and admitted the evidence. The privately retained counsel for defendant then waived a jury trial, stating, “We have already entered a plea of not guilty and waived the jury. I am ready for trial.”

The Judicial Article how provides that the Circuit Court has unlimited original jurisdiction with one exception; section 8 of Article VI of the Illinois Constitution provides in part: “The General Assembly shall limit or define the matters to be assigned to magistrates.” Ill Rev Stats 1965, c 37, § 624, limits those cases that should be assigned to magistrates in the criminal and quasi-criminal area, as follows:

(a) misdemeanor and quasi-criminal actions in which the maximum punishment authorized by law does not exceed a fine of $1,000 or imprisonment for one year in the county jail or municipal house of correction, or both;
(d) proceedings for the preliminary examination to determine probable cause, ....

Under that section it appears that the instant case should not have been assigned to a magistrate since the maximum penalty for the offense charged exceeds that which magistrates are entitled to hear. The question remains, however, whether the magistrate was without power to proceed, or whether the improper assignment was a matter of venue, and therefore an error that could be waived. We must determine whether section 624 is a jurisdictional limitation and whether a judgment entered in technical violation of the section is void.

HI Rev Stats 1967, c 37, § 628, provides:

All objections to the propriety of an assignment to a magistrate are waived unless made before the trial or hearing begins. No order or judgment is void or subject to collateral attack merely because rendered pursuant to improper assignment to a magistrate.

It is undisputed that no objection was made to the assignment before the trial began, and the State has cited several civil cases which support the proposition that a magistrate, as a full judicial officer, has the power to hear cases which are improperly assigned to him, and that the assignment is a matter of venue and not authority. Coleman v. Scott, 76 Ill App2d 417, 421, 222 NE2d 5, affd 38 Ill2d 387, 231 NE2d 408; People for Use of Cullerton v. Crawford, 80 Ill App2d 237, 243, 225 NE2d 80.

The defendant argues that the waiver rule was not intended to apply to criminal matters, and he cites People v. Chatman, 38 Ill2d 265, 230 NE2d 879, in support of this contention. In that case the defendant, who was indicted for the crime of gambling, as in the instant case, was arrested pursuant to a warrant, and after a hearing before a magistrate was held over to the Grand Jury which indicted her. At the trial she argued that she had already been in jeopardy before a magistrate who had authority to convict her, and therefore she could not be put to trial again without violation of her constitutional rights. The Illinois Supreme Court pointed out two things; that the magistrate had no “authority to dispose of her cause” since the offense carried penalties in excess of those which could be heard by a magistrate; and that even if it had the authority it had not been exercised, and therefore, the defendant had never been in jeopardy.

The second argument distinguished between the situation of one being placed on trial and one merely appearing before a judicial officer for a determination as to whether of not probable cause exists to hold the defendant over to the Grand Jury. In the Chatman case it was the latter circumstance which existed, and the court reasoned that such a proceeding was not “jeopardy” within the intendment of the Federal and State constitutions.

In the case before us the defendant relies upon the first part of the court’s decision in Chatman, and particularly upon the statement by the court at page 268, that “The penalty prescribed for an offense is therefore determinative of the magistrate’s authority for disposition.” It is argued that the word “authority” is synonymous with jurisdiction or power, and defendant reasons that the Supreme Court has concluded that the statutory provisions which specify the maximum criminal offenses to be assigned to magistrates delineate the boundaries of the magistrates’ power to act. Defendant argues further that if magistrates hear cases which carry more severe sentences than those provided for, their decisions are nullities. It is also argued that this interpretation is supported by the statement in Chat-man that magistrates are without authority to hear criminal cases carrying maximum penalties which are greater than those set out in section 624.

It is our conclusion that the defendant has misconstrued the import of the Chatman case. Careful reading of Chatman indicates that the Supreme Court was saying the defendant had never been placed in jeopardy before the magistrate because it was within the defendant’s power to prevent a decision by the magistrate as to the innocence or guilt by simply objecting to the assignment. We find no indication that the magistrate could not have reached a binding determination if the defendant had so consented. Under this view, the court’s use of the word “authority” does not mean power, but rather the right of the magistrate to decide the case regardless of defendant’s objection. It is our belief that in Chatman, as in the instant case, the magistrate would have the power to try the case, but not without the consent of the defendant, or at least without the defendant waiving the right to object to the assignment of the cause to the magistrate. We feel that this view of the law is consistent with the statutory provision that objections to the propriety of assignments to magistrates are waived unless made prior to the trial or hearing. That provision does not distinguish between criminal and civil actions, and we see no reason why it should. It is therefore our view that the defendant in the instant case waived any right to have the case heard by a judicial officer other than a magistrate, and that he is now bound by that judgment.

The defendant next argues that his motion to suppress should have been allowed. The answer to this question hinges on the propriety of defendant’s arrest. If there was probable cause for the police officer who had observed him, acting as a reasonable and prudent man, to believe the defendant was committing a crime, the officer was entitled to arrest him and make a limited search of his person. On this issue the defendant first argues that at most, the police officer suspected him of accepting wagers, which is not a crime; it is only the making of wagers that is a criminal offense. Thus, the officer arrested the defendant for doing nothing illegal, making invalid the arrest and subsequent search, and the items found on defendant’s person should not have been admitted into evidence, and the motion to suppress should have been sustained. However, when one places a bet with another, both are “making wagers.” One is betting that a certain horse will finish the race in a certain position, while the other is betting that it will not. Each makes a wager against the other. That would seem to be the only correct interpretation of the statute, thus narrowing the question of whether the police officer had probable cause to believe the defendant was accepting money and bet slips, thereby committing the crime of making wagers.

The test to be applied is stated in People v. Macias, 39 Ill2d 208, 213, 234 NE2d 783, where the court said:

“We have held that the test of probable cause is whether a reasonable and prudent man in possession of the knowledge which has come to the arresting officer would believe the person to be arrested is guilty of the crime; that it is something less than evidence that would result in conviction and may be founded on hearsay evidence; that it is based upon the factual and practical considerations of everyday life upon which reasonable and prudent men, not legal technicians, act. People v. McCrimmon, 37 Ill2d 40; People v. Jones, 31 Ill 2d 42.”

Also see People v. Roberta, 352 Ill 189, 185 NE 253.

Therefore, it is necessary to determine whether Officer Eohan acted as a reasonably prudent man when he believed the defendant was committing a crime and consequently arrested him. Officer Eohan was the only witness to testify at the hearing on the motion to suppress. According to his testimony he had made 25 or 30 previous arrests for gambling, as a member of the gambling unit; he had a clear, unobstructed view of defendant for about twenty-five minutes before arresting him, during which time he saw five people approach the defendant and offer him slips of paper and money which defendant put into his pocket.

The defendant argues that the police officer could have put a more innocent interpretation on his actions; however, the defendant misplaces the applicable test, for the police are not obliged to view conduct in a manner to construe it as innocent; their job is to apprehend criminals, and if the conduct they observe can fairly be interpreted as criminal, they are entitled to arrest the suspect. In the case before us, the arresting officer was familiar with conduct incident to illegal wagering, and he stated in his testimony that his suspicion of the defendant's actions was based on his experience.

In support of the argument that the officer had insufficient information to make an arrest, the defendant cites two Federal opinions; United States v. Asendio, 171 F2d 122 (3d Cir), and Perry v. United States, 336 F2d 748 (DC Cir). In Asendio the defendant had been seen standing on a downtown street comer, accepting a small package. He was not arrested on the spot, but was followed to his hotel room where the police made a search without a warrant. The court felt that the act the officer had witnessed was not sufficient to amount to probable cause for arrest or search.

The facts in the instant case, however, distinguish it from those in Asendio, in which case only one transactian was observed. We feel that if there had been four more such transactions within a time limit of twenty minutes — as in the case before us — the court in Asendio would have found that there was probable cause. An isolated act may appear innocent, but a series of similar transactions, by virtue of the repetition, may be sufficient to support an arrest. It is our opinion that the facts presented on the motion to suppress in the instant case adequately demonstrated that the police officer acted reasonably in arresting and searching the defendant, and that the motion was properly denied.

In Perry v. United States, supra, the police officers saw the defendant exchange “something” with a known addict, and the court felt that did not constitute a probable cause upon which to base an arrest and search. The facts in that case cannot be compared to those in the instant case.

Finally, the defendant argues that he was denied his constitutional right to a jury trial because his attorney’s purported waiver of such trial was ineffective. The attorney, who was privately retained by defendant and who represented him at the trial, is listed as “of counsel” on the briefs filed in the case. The basis of defendant’s claim is that he was not informed by the trial court of his constitutional right to a jury trial. After the motion to suppress had been denied defense counsel said to the court: “We already entered a plea of not guilty and waived the jury. I am ready for trial.”

The defendant places his principal reliance on People v. Turner, 80 Ill App2d 146, 225 NE2d 65, in which case the court held that the defendant did not knowingly in open court waive his right to a jury trial in accordance with Ill Rev Stats 1965, c 38, § 103-6. The court reversed and remanded the case for a new trial. The defendant, an illiterate, had told the court he did not understand what a jury trial was, and the trial court instructed defense counsel to explain it to the defendant. After a conference between defense counsel and defendant, the latter placed his “X” on a jury waiver, although the trial court did not advise him of his right to a jury trial, nor did the court determine whether defendant had been so instructed by his counsel.

In the opinion in Turner, the court stated at page 150: “It is uncontradicted that the defendant was an illiterate. . . . Under all of the circumstances of this ease we find that the right to a jury trial was not understandingly waived by defendant in open court.”

In People v. Crable, 80 Ill App2d 243, 225 NE2d 76, the court implied that its assessment of jury waivers would depend in part upon the question of whether the defendant was illiterate when it said at page 247: “. . . there is no allegation that the defendant was illiterate.” In the case before us it would appear that the defendant was far from illiterate and was represented by a privately retained attorney. Under such circumstances a trial court should be entitled to rely on the attorney’s statements on behalf of his client.

In People v. Melero, 99 Ill App2d 208, 211, 240 NE2d 756, defense counsel had informed the trial court that his client might have some difficulty because he did not speak the English language well. The court then asked, “Do you want me to hear the case or do you want a jury trial?” Defense counsel answered, “Waive the jury, Your Honor.” The Appellate Court held the waiver effective, and when it developed that the defendant did understand the English language, the court said in its opinion:

“By permitting his attorney, in his presence and without objection on his part, to waive his right to a jury trial, defendant must be held to have knowingly acquiesced in that action. Also, the trial court was entitled to rely on the professional responsibility of defendant’s attorney that when he informed the court that his client waived a jury, it was knowingly and understandingly consented to by his client.”

In People v. Novotny, 41 Ill2d 401, 410, 244 NE2d 182, the Illinois Supreme Court quoted with approval from Martelly v. State, 230 Md 341, 348, 187 A2d 105 (1963), as follows:

“It is settled law that when an accused is present in court and represented by competent counsel, he is bound by the actions and concessions of counsel, and that even constitutional rights may be waived in the course of a trial.”

In support of its propositions the Supreme Court cited numerous cases and authorities.

Under the rule laid down the defendant in the instant case is bound by the jury waiver understandingly made by defendant through his attorney. The defendant was present; there is no indication that he was illiterate; and he remained silent while the attorney made the waiver. Accordingly, the defendant’s silence was tantamount to an acceptance and approval of the attorney’s actions.

For the reasons stated, we hold that the magistrate did have jurisdiction of the case; that the motion to suppress was correctly denied; and that defendant was not unconstitutionally deprived of his right to a jury trial. The judgment of the Circuit Court is affirmed.

Affirmed.

LYONS, P. J. and BURKE, J., concur.


author: MR. JUSTICE ABRAHAMSON

text:
    Anna Olson, Plaintiff-Appellant, v. Terry Fleetwood, Defendant-Appellee.
    Gen. No. 68-139.
    Second District.
    November 12, 1969.
    Rehearing denied January 29, 1970.

      Theodore L. Anderson, of Sycamore, and Philip H. Corboy, of Chicago, for appellant.
    O’Brien, Burnell, Puckett, and Barnett, of Aurora, for appellee.
   MR. JUSTICE ABRAHAMSON

delivered the opinion of the court.

The plaintiff appeals from an order of the trial court that denied her post-trial motion for a new trial as to damages only.

On December 24, 1963, the plaintiff, then a 54-year-old spinster, stopped her automobile at a stop sign located at the intersection of North Avenue and California Street in Sycamore, Illinois. It was a clear, bright day but the lightly traveled intersection was coated with ice. Moments later, her automobile was struck in the rear by an automobile driven by the defendant. The plaintiff’s car was not damaged.

The plaintiff was jolted forward by the impact and heard her neck “crack.” She felt an immediate pain in her neck and was driven to her physician, Dr. John Eggers, by a passerby. Dr. Eggers examined Miss Olson and sent her to the hospital for X rays. The pain increased and on December 26 she entered Sycamore Hospital at Dr. Eggers’ direction, where she remained 39 days for traction and therapy.

After her release from the hospital on February 3, 1964, the plaintiff did not return to her own home but lived with her uncle until October of 1964. During this period she was driven to the hospital by a neighbor three times a week for further physiotherapy and traction. She wore a cervical collar until September of 1964.

Although the pain in her neck had lessened prior to her discharge from the hospital, Miss Olson began to experience pain in her lower back and legs during her stay with her uncle. After her return to her own home she was unable to do any heavy work and has continually suffered pain in her neck, back and legs.

Bills in the total amount of $2,278.90 for her hospitalization, a back brace, drugs and services rendered by Dr. Eggers were admitted into evidence. At the conclusion of the trial, the jury returned a verdict that found for the plaintiff and against the defendant and assessed her damages in the sum of $2,500. Judgment was entered on the verdict. The plaintiff here maintains that the verdict was grossly inadequate and against the manifest weight of the evidence in that it failed to fairly compensate her for all the proven elements of damage.

The evidence disclosed that the plaintiff had lived with her parents on a small farm outside of Sycamore for many years prior to the accident. Although she never farmed, she did maintain the yard, mow the lawns and do the heavier housework. Her mother died in 1949 and her father in 1963.

A number of neighbors and acquaintances, including a nurse, testified that they knew Miss Olson both before and after the accident and all agreed that she had been in apparent good health and vigor prior to that time but fatigued and in obvious pain thereafter. Dr. Eggers testified that he was the plaintiff’s physician since 1939. In the 1940’s she had low back pain and he performed a uterine suspension and fitted her with a sacroiliac belt for at least two years. In 1954, he prescribed vitamins since she was fatigued and tired at that time. For a period of four or five years before the accident, Dr. Eggers treated Miss Olson for hypertension and a variety of feminine complaints. She visited him approximately twice a month and took, at his advice, a number of drugs for tension and stomach discomfort.

Dr. Eggers further testified that Miss Olson visited him on December 24th, 1963, and stated that she had been hit by an auto and complained of pain in her neck and down her thoracic spine. He sent her to the hospital for X rays and prescribed something for the pain. On December 26, she was admitted to Sycamore Hospital since the pain had increased. Dr. Eggers made a complete examination and found she had a muscle spasm in her neck and contusions on her chest. He recommended bed rest, intermittent heat traction and drugs for her pain and tension. His diagnosis at the time she was discharged from the hospital was an acute sprain, or damage to the ligaments, of the cervical spine. It was his opinion that the sprain would cause pain and that there was a causal relationship between the sprain and the history of the accident.

In March, 1964, Dr. Eggers had X rays taken of the plaintiff’s lower back since she complained of pain in that area and in her legs. The X rays disclosed an arthritic condition in the lumbar spine that the doctor believed could have been caused by an aggravation of an old condition at the time of the accident.

Dr. Eggers concluded that although Miss Olson’s cervical spine was “good,” she would continue to suffer pain in her neck and lower back. It was his further opinion that this condition would be permanent since the damaged ligaments were healed by scar tissue that did not have the natural flexion of normal tissue and would resist movement or stress.

In his brief, the defendant asserts that the plaintiff had the affirmative burden to show that the verdict of the jury was not a compromise of liability against damages in order to be entitled to a new trial on the sole issue of damages. The plaintiff has not included the testimony of the defendant in her abstract and it was omitted from the report of proceedings at her request. In support of this assertion, the defendant relies primarily on the case of King v. City of Chicago, 53 Ill App2d 484, 202 NE2d 839, wherein the plaintiff appealed for a new trial on damages only and did not include any evidence on the issue of liability in the record for review. The trial court had denied a post-trial motion for a new trial on the question of damages alone on the grounds that “the proof as to liability was extremely thin and the jury’s verdict in favor of plaintiff for $1,000.00 was a compromise of liability against damages. . . .”

The Appellate Court in the King case affirmed the lower court and said at page 487:

“Since the trial court’s ruling on plaintiff’s motion was based on the fact that he felt that the jury’s verdict was the result of a compromise of liability against damages, it was incumbent upon plaintiff to show on this appeal that there could have been no such compromise for the reason that defendant’s liability was established by her evidence. This could have been done only by plaintiff presenting the record of liability evidence to this court, which she has failed to do.”

It is not clear in the King case if the court was of the opinion that it was necessary to include all the evidence on the issue of liability in the record for review where a new trial is sought on damages only or only so much of the record that would establish a prima facie case since it states further that “Where, on the other hand, the record shows that there was enough evidence for a jury to find a defendant liable, then the court may order a new trial on the question of damages alone where it appears that the jury improperly assessed the amount of the damages.”

In our case, the record does contain sufficient evidence to support the determination of the jury on liability. In any event, the King case is to be distinguished from our own in that the trial court found that the low verdict was a result of compromise. Obviously, to properly review that determination it was necessary to provide the higher court with the record on the issue of liability. We do not feel that the King case required a party to preserve the entire record on liability in all cases to be entitled to a new trial on damages only.

Although the court in DeFreezer v. Johnson, 81 Ill App2d 344, 225 NE2d 46, also cited by the defendant, does cite the King case to that effect, the court there did have the entire record before it. DeFreezer sought a new trial either on the issue of damages alone or generally and the court concluded from a review of the record that the low award returned by the jury might have been a result of a close case on liability and remanded the matter for an entire new trial.

Similarly, in Kinsell v. Hawthorne, 27 Ill App2d 314, 169 NE2d 678, the appellant sought a new trial in the alternative and the Appellate Court remanded for a new trial generally since the defendant conceded that the low award was a result of a compromise by the jury.

The King, DeFreezer and Kinsell cases were all decided prior to the effect of Supreme Court Rule 323(a), (Ill Rev Stats 1967, c 110A, par 323(a)) which provides :

“A report of proceedings may include evidence, oral rulings of the trial judge, a brief statement of the trial judge of the reasons for his decision, and any other proceedings that the party submitting it desires to have incorporated in the record on appeal. The report of proceedings shall include all the evidence pertinent to the issues on appeal.”

A footnote to the rule inserted by the Rules Committee of the Supreme Court states “The last sentence is new. Evidence that pertains solely to an issue not presented on appeal, e. g., the issue of liability when the appeal relates only to damages, need not be included.”

We realize that the comment of the committee has no binding effect on our determination, yet we feel that it would be inconsistent with the purpose of the new rules to now hold that it is necessary to preserve the entire record on the issue of liability in all appeals related only to damages.

We next consider if the verdict returned in this case was, in fact, inadequate. There is a deplorable lack of consistency in the reported cases on the question of inadequate verdicts in personal injury cases. It seems fairly well settled that a verdict in an amount less than the proven out-of-pocket expenses of the plaintiff is patently inadequate. O’Brien v. Howe, 30 Ill App2d 419, 174 NE2d 905; Stroyeck v. A. E. Staley Mfg. Co., 26 Ill App2d 76, 167 NE2d 689.

In most other cases, the assessment of damages in personal injury suits is left to the jury and will not be disturbed on review unless it appears that the jury was improperly instructed or the verdict was a result of passion or prejudice. Lazzaro v. Garrett, 100 Ill App2d 452, 242 NE2d 59; McManus v. Feist, 76 Ill App2d 99, 221 NE2d 418; Ward v. Chicago Transit Authority, 52 Ill App2d 172, 201 NE2d 750.

It is not contended here that the jury was not properly instructed or that the plaintiff was denied a fair trial but only that the margin between the verdict and the out-of-pocket expenses was so slender as to indicate in itself that the jury did not consider all of the elements of damage.

We cannot agree with that contention. The award is not high and it is true that another jury might have returned a verdict for a higher sum. However, there is nothing to indicate that the jury did not consider all items of damage and, having done so, the assessment of the actual loss was within its discretion.

In Mineiko v. Rizzuto, 65 Ill App2d 35, 212 NE2d 712, cited by the plaintiff, the court concluded that the jury misunderstood the evidence relating to the plaintiff’s loss of wages and the injuries in Wihr v. Bruno’s Appliances, Sales & Service, 29 Ill App2d 145, 172 NE2d 633, were of far greater severity.

For the reasons stated, the judgment of the trial court will be affirmed.

Judgment affirmed.

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


author: JUSTICE McCORMICK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Coyntee Williams, Defendant-Appellant.
    Gen. No. 53,733. (Abstract of Decision.)
    First District, Second Division.
    November 12, 1969.
    Gerald W. Getty, Public Defender of Cook County, of Chicago (Herbert Becker, Norman W. Fishman, and James J. Doherty, Assistant Public Defenders, of counsel), for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Elmer C. Kissane and Richard E. Zulkey, Assistant State’s Attorneys, of counsel), for appellee.
   Opinion by

JUSTICE McCORMICK.

Not to be published in full.


author: JUSTICE McCOR-MIGK.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. William A. Bathurst, Defendant-Appellant.
    Gen. No. 53,975. (Abstract of Decision.)
    First District, Second Division.
    November 12, 1969.
    Harvey M. Sheldon, of Chicago, for appellant; Edward V. Hanrahan, State’s Attorney of Cook County, of Chicago (Francis X. Riley, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE McCOR-MIGK.

Not to be published in full.


author: JUSTICE McNAMARA.

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Leon Walls and James Payne, Defendants-Appellants.
    Gen. No. 51,898. (Abstract of Decision.)
    First District, Third Division.
    November 13, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (James J. Doherty, Assistant Public Defender, and Patrick T. Murphy, of Chicago, for appellants; Edward V. Hanrahan, State’s Attorney of Cook County (Robert Kelty, Special Assistant State’s Attorney, and Elmer C. Kissane, Assistant State’s Attorney, of counsel), for appellee.
   Opinion by

JUSTICE McNAMARA.

Not to be published in full.


author: MR. JUSTICE SCHWARTZ

text:
    City of Evanston, a Municipal Corporation, ex rel. Nels J. Johnson, N. J. Properties, Inc., a Corporation, and Charlotte Ziporyn and Nels J. Johnson, N. J. Properties, Inc., a Corporation, and Charlotte Ziporyn, as Taxpayers of the City of Evanston, Illinois, and on Behalf of All Other Taxpayers Similarly Situated, Plaintiffs-Appellants, v. Ernest Risinger, d/b/a Boyer Tree Experts, and Hartford Accident and Indemnity Co., a Corporation, Defendants-Appellees.
    Gen. No. 53,123.
    First District, Third Division.
    November 13, 1969.

      Raymond L. Jones, of Chicago, for appellants.
    McCarthy, Scheurich, Duffy & McCarthy, of Chicago (John M. Duffy and Frank K. Neidhart, of counsel), for appellees.
   MR. JUSTICE SCHWARTZ

delivered the opinion of the court.

This is a proceeding in chancery commonly known as a taxpayer’s suit. It is brought in the name of the City of Evanston by the relators, as taxpayers of Evanston, pursuant to statute (111 Rev Stats, c 24, § 1-5-1 (1961)). The complaint alleges that city officials of Evanston awarded a contract to Ernest Risinger, d/b/a Boyer Tree Experts (Risinger) in violation of certain city ordinances and of chapter 24, section 8-9-1 of the statute and it sought the return of all moneys paid to Risinger pursuant to the contract and the payment by Hartford Accident and Indemnity Company (Hartford) of $10,000 pursuant to the provisions of a penalty bond whereby Hartford had indemnified the city in connection with the contract entered into with Risinger. The matter was referred to a master in chancery who heard the evidence, made findings for the defendants and recommended that a decree be entered dismissing the suit for want of equity. The trial court after hearing arguments on exceptions to the report dismissed the suit and the relators have appealed.

Appellants contend that the agreement between the city and Risinger was void for the following reasons: (1) it was let without advertising for bids, in violation of the Evanston City Code, (2) Risinger had no valid city license to engage in the business of tree trimming, and (3) Risinger did not furnish a performance bond as required by the Evanston City Code. With respect to the defendant Hartford, the appellants contend that because of Risinger’s breach of his duties, Hartford should have been held liable on the penalty bond. The facts follow.

On January 8, 1963, Thomas Carlson, Superintendent of Parks of the City of Evanston, sent invitations to several tree experts to bid on the 1963 pruning project for parkway trees. The city received three bids. The low bid of $3.15 per man hour was made by Risinger. Relator Neis Johnson was a competitor of Risinger and was one of the unsuccessful bidders. On February 1, 1963, Risinger was awarded a contract which ran from February 4, 1963, to August 23, 1963. The city had the right however to terminate the contract upon 2i hours notice. Risinger’s company performed the work and billed the city at the rate of $3.15 per man hour. The city paid the amounts billed which totaled $34,867.34.

The- first contention is that the agreement was void because the city did not advertise for bids as required by law. The Evanston City Code provides that all contracts exceeding the sum of $1,000 in amount and relating to any matter under the control of the Department of Public Works shall be let to the lowest responsible bidder after advertising in some publication of general distribution. (Evanston City Code, c 2, §§ 2— 62, 2-63.) Defendants contend that since the contract was merely for $3.15 per hour and could be terminated by the city at any time, it was not a contract exceeding $1,000 in amount.

A similar issue was involved in Sanitary Dist. of Chicago v. Blake Mfg. Co., 179 Ill 167, 53 NE 627. There the court held that a contract to supply pumps and a man to superintend them at $42.50 per day was not one which exceeded $500 in value, even though the Sanitary District was ultimately liable for $1,200.55 under the contract. The court concluded that since the contract could be terminated at any time, it was a mere hiring of pumps by the day, did not exceed $500 in value and hence could be entered into without requiring the Sanitary District to advertise for bids. In the instant case the contract was by the hour and could be terminated by the city at any time on 24 hours notice. Under the holding aforesaid the contract before us was not one which exceeded $1,000 and the city was not required to advertise for bids.

The second contention is that the agreement is void because Eisinger was not licensed, as required by the Evanston City Code, to do the work in question. It is undisputed that he had been licensed by the city to engage in the business of tree trimming continuously from 1951 to January 30, 1963. It is also undisputed that on January 31, 1963, he paid the required $15 fee and a license was issued to him for the year ending January 30, 1964. Appellants contend, however, that the license was void because it was not issued in the manner prescribed by the code, which requires formal application and examination in addition to a bond before a license may be issued. (Evanston City Code, c 45, §§45.9-45.13.) They charge that Risinger did not furnish the requisite bond until May 22, 1963. In support of their contention that Risinger’s agreement with the city was void appellants cite Paddock v. Glennon, 45 Ill App2d 362, 196 NE2d 385. That case was reversed by the Supreme Court of Illinois in Paddock v. Glennon, 32 Ill2d 51, 203 NE2d 421. There suit was brought to foreclose a mechanic’s lien. The defendant contended that its contract with the plaintiff was in violation of the Plumbing License Law (Ill Rev Stats, c 111%, § 116.-38 (1961)) and therefore was unenforceable. After setting out the rule that a mechanic’s lien must be based on a valid contract if it is to be enforceable, the court said (p 53):

“[U]nless the agreement necessarily contemplates an illegal act or necessarily involves a violation of law, the mere fact that it was performed in violation of law will not invalidate the resulting lien if not seriously injurious to the public order.”

Risinger had been licensed by the city for many years to engage in the business of tree trimming. The information required in the formal application was no doubt on file from his previous licenses and his many years in the tree trimming business must be considered proof of his fitness to perform the work. Although he did not furnish the bond until May 22, 1963, it was by its terms effective as of January 30, 1963, and thus covered the entire term of the license. It cannot be said that the technical violation of the licensing ordinance which occurred was in any way injurious to the public order. See, Douglas Lumber Co. v. Home for Incurables, 380 Ill 87, 43 NE2d 535; Meissner v. Caravello, 4 Ill App2d 428, 124 NE2d 615.

Appellants next contend that the agreement between Risinger and the city was void because Risinger did not furnish a performance bond as required by sections 2-62 and 2-72 of the Evanston City Code. Section 2-62 applies only to contracts the amount of which exceeds $1,000. Our holding that this contract does not exceed $1,000 renders that section inapplicable. Section 2-72 provides as follows:

“Whenever any work or improvement of sufficient hazard or magnitude to require a bond is let by contract to any person, the officers of the city letting the same shall, in all cases, take a bond from such person, with good and sufficient sureties in such amount as shall not only be adequate to insure the performance of the work in the time and manner required in such contract, but also to save and indemnify and keep harmless the city. . . .” (Emphasis added.)

It is undisputed that these bonds were neither required by the city officials nor furnished by Risinger. No evidence was offered at the hearing before the master to determine whether the work contemplated was “of sufficient hazard or magnitude to require a bond” nor does the complaint contain an allegation to that effect. Hence the applicability of section 2-72 to the facts of the instant ease was not presented to the lower court. In their brief appellants merely assert: “It is obvious that the tree trimming job was hazardous and of sufficient magnitude to fall within the provisions of § 2-72.” That issue was not presented to or considered by the master or chancellor and it cannot be raised for the first time on review. Woman’s Athletic Club v. Hulman, 31 Ill2d 449, 202 NE2d 528; Pefferle v. Prairie Mills, Inc., 72 Ill App2d 440, 218 NE2d 247.

If we assume that the work contemplated was such as to require application of section 2-72 of the Evanston Code, Risinger’s failure to furnish the bond required by the statute would not thereby render the agreement void. The reason a performance bond is generally required in cases such as this is to insure compliance with the terms and conditions of the contract. In the case at bar the court approved the master’s finding that Risinger had substantially complied with the specifications and all other obligations under the agreement. It is not contended that the work done was improperly performed and there is no just basis for holding the agreement void and requiring Risinger to pay back the money he received in payment for his services.

Appellants’ final contention is that Hartford is liable to the City of Evanston on its penalty bond for violation of the contract by Risinger. Risinger’s bond with Hartford as surety guaranteed that he would faithfully observe the provisions of the city’s ordinances with respect to the “planting, removing, trimming, spraying or otherwise treating trees and shrubs. . . .” The master specifically found that Risinger properly performed his work and the trial court approved the finding. Appellants do not challenge that finding. Their claim that Risinger failed to comply with the licensing and bonding provisions of the code is not within the coverage of Hartford’s bond, since it guaranteed faithful compliance only with those ordinances relating to the performance of the contract. The trial court properly dismissed the suit for want of equity and the judgment is affirmed.

Judgment affirmed.

DEMPSEY, P. J. and McNAMARA, J., concur.