author: MR. PRESIDING JUSTICE ADESKO

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Warene Davis, Defendant-Appellant.
    Gen. No. 52,843.
    First District, First Division.
    November 24, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln 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. PRESIDING JUSTICE ADESKO

delivered the opinion of the court.

Defendant was indicted for the crime of murder and was found guilty of the offense of voluntary manslaughter in a jury trial. She was sentenced to a term of three to ten years. In seeking a reversal of this conviction, the defendant raises questions concerning the instructions given to the jury and the prosecutor’s closing argument.

The evidence in support of defendant’s conviction reveals that on the evening of July 8, 1967, the defendant was holding a party for her little girl in the defendant’s apartment at 7733 South Blackstone, in Chicago. The decedent, Ronald Johnson, was on the porch on the evening in question. The defendant was informed that the decedent had struck one of her children and she questioned the decedent about this. Some words were exchanged and the defendant took a pistol from a nearby sofa. The decedent came at the defendant, who allegedly retreated but then fired several shots, killing the deceased as he came towards her. Defendant testified that the deceased had first approached her son with a clenched fist and then turned toward her with his fist clenched. Several witnesses corroborated the defendant’s testimony that the deceased had called her a “bitch” and that he had approached her with a clenched fist, while other witnesses denied these facts. A pathologist testified that the deceased had 216 milligrams percent of alcohol in his blood.

From this evidence, the defendant attempted to assert a defense of justified use of force. In this regard, the court instructed the jury as follows:

“The Court instructs the jury that a defense of justifiable use of force, or of exoneration, based upon the provisions of the Statutes of the State of Illinois relating to Criminal Law and Procedure is an affirmative defense. Defense Instruction No. 3.
“The Court instructs the jury that there was applicable in the State of Illinois at the time of the alleged occurrence in question a certain statute relating to rights of Defendants under Chapter 38, Illinois Revised Statutes (1965) which provides that ‘If the issue involved in an affirmative defense is raised, then the State must sustain the burden of proving the defendant guilty beyond a reasonable doubt as to that issue together with all the other elements of the offense.’ ” Defense Instruction No. 4.

On this appeal, the defendant contends that the use of the words in Instruction No. 3 “affirmative defense” and “if the issue involved in an affirmative defense is raised” in Instruction No. 4, constitutes error. Such language intimates that the defendant had the affirmative burden of producing evidence. Thus, by instructing the jury in this manner, the defendant claims that the burden of proof was shifted to her. The State contends that the issue cannot be raised since the defendant had tendered said instructions.

We agree with the State’s contention. The Supreme Court has stated in People v. Riley, 31 Ill2d 490, 202 NE2d 531 (1964), at page 496:

“It is axiomatic that an accused cannot complain of error acquiesced in or invited by him, and to this end we have held that a defendant may not complain of defects in instructions which were given at his request, (People v. Beil, 322 Ill 434, 442; People v. Fox, 319 Ill 606, 619)

To allow a defendant to allege error upon a point that was the product of his own doing would certainly lead to unconscionable results. We are further supported in this holding by the fact that the defendant has not questioned the representation provided by her chosen legal counsel. We find that the additional authority cited by defendant’s counsel in oral argument of People v. Lewis, 112 Ill App2d 1, 250 NE2d 812, is not applicable to the defendant’s contention.

The defendant also objects to a number of statements made by the State’s Attorney in his closing argument. The defendant contends that prejudicial error was committed when the prosecutor argued that the alcohol in deceased’s bloodstream was probably obtained at defendant’s apartment; that the shots were fired without regard to other children in the vicinity; that the jury could not believe the testimony of defendant’s son who was characterized as “the thirteen-year-old boy of this twenty-five-year-old woman.” We believe that the statements made by the prosecutor were accurate and were based on the evidence adduced at the trial. We do not agree with the defendant that the last statement regarding the ages of the defendant and her son in any way inferred that the defendant was immoral and that her son was illegitimate.

Accordingly, the judgment of the Circuit Court of Cook County is affirmed.

Judgment affirmed.

MURPHY and BURMAN, JJ., concur.


source: Caselaw Access Project

author: MR. JUSTICE MURPHY

license: Public Domain

text:
    Endurance Paving Company, an Illinois Corporation, Plaintiff-Counterdefendant-Appellee, v. Peter Pappas and William Pappas, d/b/a Red Fox Restaurant, Defendants-Counterplaintiffs- Appellants.
    Gen. No. 53,041.
    First District, First Division.
    November 24, 1969.

      James N. Kosmond, of Chicago (Boodell, Sears, Sugrue & Crowley, of counsel), for appellants.
    Ash, Anos and Harris, of Chicago (Ben Goldwater, of counsel), for appellee.
   MR. JUSTICE MURPHY

delivered the opinion of the court.

Plaintiff, Endurance Paving Company, sued for $995, an alleged balance due it for paving done for defendants. Defendants answered and counterclaimed for $4,-000 damages on the ground that the paving was not in accordance with specifications and was not done in a workmanlike manner. Defendants appeal from a judgment entered on a jury verdict in favor of plaintiff on both the complaint and the counterclaim. On appeal defendants assert prejudicial trial errors and improper jury instructions.

In 1961, the defendants, Peter and William Pappas, were partners in the operation of the Red Fox Restaurant. They accepted a proposal dated October 4, 1961, submitted on behalf of plaintiff Endurance, for the asphalt paving of two parking lots serving the restaurant. The proposal of Endurance included specifications for the materials to be used (eight inches of stone and three inches of asphalt) and for its installation.

Paul Shackelford, president of Endurance, testified that about ten days after the acceptance of the proposal he received a telephone call from Peter Pappas advising that the excavator was there and requesting him to come out and check the grading. He said that on the day he went to the site, it started to rain. This condition continued for a time, which delayed the completion of the excavation for a few days, and when plaintiff arrived to commence work the excavator was just finishing up. Because of the wet and muddy conditions, Shackelford said he recommended that the paving be postponed. The Pappases told him that “they couldn’t operate the restaurant if they didn’t get the paving in and since the season was almost at an end they couldn’t afford to wait, we would have to go ahead the way it was.” He was sure that the work was commenced before the end of October, 1961.

Shackelford also testified as to the installation. The areas that were not too wet were rolled and prepared to receive stone. After the stone was laid, they applied one inch of binder and one inch of surface asphalt. Thereafter it was rolled and compacted. After rolling the lines out, the job was completed.

Shackelford further testified that a wet or muddy sub-grade will not cause depressions in the finished asphalt, but he stated that it might cause cracks or breaks in the asphalt “like a boil that blows up and breaks it out.” Depression could be caused from a soft or bad fill underneath the stones, but he did not consider the subgrade of these particular lots to be bad.

On cross-examination Shackelford repeated that the total asphalt laid was two inches. He also said that during the two-week period of time the job took, he had several conversations with the Pappases. He recalled that “every day we were out there I told them that it was too wet to work in the rain.” On rebuttal, and over defendants’ objection, the trial judge permitted him to testify that a total of three inches of asphalt was installed.

Plaintiff’s witnesses included an asphalt salesman, who visited the job site in November of 1961. While he was there he was introduced to William Pappas by Paul Shackelford. During a subsequent conversation between the three of them, he said that he advised not putting the asphalt wearing surface on the binder until spring because of the “condition of the base . . . the weather, and the lateness of the paving season,” and William Pappas said that he “wanted the job completed.”

Another witness for plaintiff testified that for twelve years he had been connected with thousands of jobs where asphalt had been laid. He had examined the parking lots in early June of 1967 and in his opinion the depressed areas he found had been in existence for approximately two years. He attributed the depressed and cracked condition to settlement of the asphalt. He gave an estimate as to the repairs needed and the cost thereof. His examination of the premises consisted of a visual examination. He took no measurements nor made any tests.

Defendant William Pappas testified that he called Shackelford on October 23, 1961, to ask him when he could have his equipment available to commence work. He said Shackelford promised that they would begin the installation on Wednesday, October 25, 1961. Based on this, Pappas arranged to have Charles Lenz & Co. excavate the lots on the following day. The excavating was completed on the following morning in anticipation of Endurance starting paving that day. Plaintiff’s work did not start because plaintiff’s equipment did not arrive until the following week. A period of heavy rain occurred during the interim, between the completion of the excavation and the arrival of plaintiff’s equipment.

William Pappas further testified that he was at the job site when the plaintiff company was putting in the heavy crushed stone. He stated that Shackelford said nothing about the subgrade being too wet for them to do the work. He stated that there was only one rolling instead of the two rollings that were required, and that as the rolling was being done, the stone was being churned with mud. He complained to Paul Shackelford that the heavy stones were not being installed in two rollings as required by the contract and was told that if they “have any defects, we will take care of it; we will put plenty of stone on.” While the final rolling was being accomplished, depressed areas in the asphalt began to appear. He mentioned this to Paul Shackelford and was informed that plaintiff would take care of it in the spring, which was never done. In December of 1961, shortly after receiving the statement from the plaintiff in the sum of $6,995.85, he again mentioned the depressions and cracking in the asphalt to Paul Shackelford, who promised to take care of it if he got a substantial payment on account. The sum of $5,000 was paid to plaintiff on February 16, 1962, and $1,000 on April 26,1962.

Defendants’ witnesses included an engineering consultant for the remodeling of the restaurant, who inspected the work done by plaintiff on the two parking lots on or about November 30, 1961, which was shortly after its completion. He related in detail his findings, and he estimated the cost of adequate repairs would be $3,620.

Another witness for defendants, Paul Flood, a licensed engineer and a specialist in the analysis of construction materials, with 15 years’ experience in the asphalt field, examined the parking lots on April 21, 1965, and found that approximately one-third was badly cracked and had depressional markings indicating waviness. He made six core borings in the asphalt. After he examined the borings they were transferred to a laboratory for further inspection and testings by technicians under his supervision. He was permitted to testify as to what the borings showed him. He was not permitted to testify as to the results of the tests by the technicians on the ground that since the tests were made by technicians his answers would be hearsay.

Defendants’ witness Flood was subsequently asked a series of hypothetical questions, tó which the court sustained plaintiff’s continued objection that the hypothetical questions contained facts which were not introduced in evidence in the trial. Secondly, the hypothetical questions asked for a conclusion or opinion of the witness at a time in 1965, which was unrelated to the time of the installation in 1961.

After considering this record, we have concluded that the determinative issue is whether the jury was properly instructed. “Where a case is close on the facts, and its decision depends and must be determined upon conflicting testimony, the jury should be adequately and accurately instructed.” Both v. Nelson, 31 Ill2d 511, 515, 202 NE2d 494 (1964).

Defendants specifically complain that the giving of plaintiff’s instruction No. 4 was prejudicial and improper. It provided:

“The Court instructs the jury that if you fail to find from the evidence that any defects in the parking lots of the Defendants-Counterplaintiffs were caused by the Plaintiff-Counterdefendant and that the work of the Plaintiff-Counterdefendant was not done in accordance with the specifications then the jury will find for the Plaintiff-Counterdefendant and against the Defendants-Counterplaintiffs’ on the Defendants-Counterplaintiffs’ Counterclaim.”

Defendants argue that this instruction was repetitious in the light of IPI instruction 21.04, as adapted, which had already been given, providing:

“In order for the defendants to recover on their counterclaim, the defendants have the burden of proving each of the following propositions:
“1. That the work performed by plaintiff did not conform to the specifications of the written contract between the parties or that the work performed by the plaintiff was not done in a good workmanlike manner.
“2. That as a result thereof there were defects for which the defendants will be required to expend additional sums of money to repair.
“3. The fair reasonable market price of such . repairs.
“If you find from your consideration of all the evidence that each of these propositions has been proved, then your verdict should be for the defendants as to their counterclaim. On the other hand, if you find from your consideration of all the evidence that any of these propositions has not been proved, then your verdict should be for the plaintiff as to the defendants’ counterclaim.”

We agree with defendants that it was prejudicially erroneous to give instruction No. 4. It was a second burden of proof instruction, and “a rule of law once clearly stated to the jury is enough and should not be repeated.” (Ryan v. Monson, 33 Ill App2d 406, 424, 179 NE2d 449 (1961).) It contained an incorrect statement of the law because it in effect instructed the jury that they must find for the plaintiff unless they found plaintiff caused the defects and that the work was not done according to specifications, while the law is that plaintiff’s work must not only comply with the specifications but also be done in a workmanlike manner. (Masters v. Central Illinois Electric & Gas Co., 7 Ill App2d 348, 364, 129 NE2d 586 (1955).) The effect of instruction No. 4 was to remove the issue of workmanlike performance from the case; also it was peremptory in form and failed to contain all the facts and was not complete within itself and could not be cured by other instructions in the series. (Duffy v. Cortesi, 2 Ill2d 511, 119 NE2d 241 (1954).) Finally, because IPI instruction 21.04, as adapted, allowed the jury to find for defendant if either failure to conform to specifications or lack of workmanlike performance was shown, the necessary effect of instruction No. 4 was to confuse the jury.

We have not discussed defendants’ other contentions of prejudicial trial errors based upon the court’s rulings on evidence, hypothetical questions and the propriety of the rebuttal testimony of plaintiff as to the depth of the asphalt installed. The guidelines in these areas are numerous and undoubtedly these alleged trial errors will not recur during a new trial.

For the reasons given, the judgment appealed from is reversed and the cause is remanded to the Circuit Court for a new trial.

Reversed and remanded.

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


author: MR. JUSTICE BURMAN

text:
    James Lotrich, Plaintiff-Appellant, v. Life Printing & Publishing Co., Inc., an Illinois Corporation, and John F. Kubik, Defendants-Appellees.
    Gen. No. 53,688.
    First District, First Division.
    November 24, 1969.

      William A. Cain, of Chicago, for appellant.
    Kirkland, Ellis, Hodson, Chaffetz & Masters, or Chicago (Don H. Reuben, Lawrence Gunnels, and Calvin J. Collier, of counsel), for appellees.
   MR. JUSTICE BURMAN

delivered the opinion of the court.

This is an action to recover damages for libel as a result of publication of an article by the defendants which reported the disposition of a criminal case against the plaintiff. The defendants moved for summary judgment on the grounds that the article was a privileged report of official governmental proceedings and records. Plaintiff filed a verified reply. The court granted summary judgment in favor of the defendants and dismissed the case with prejudice. From this judgment plaintiff appeals.

On July 24, 1968, plaintiff James Lotrich, filed a complaint at law alleging that he was libeled by an article which appeared on June 29, 1968, in the defendants’ “Suburban Life,” a weekly newspaper of general circulation in the suburbs of Cook County. The complaint set forth the article haec verba:

“N R RESIDENT SENTENCED TO PROBATION
“A sentence of one year’s probation was given Wednesday in La Grange Park court by Judge Harry Schrier to James Lotrich, 2314 S 17th, North Riverside, on a charge of indecent exposure before two Evergreen Park women, May 2, near La Grange Rd. and Brewster.
“He pleaded guilty.
“He also was advised to seek medical help and to report quarterly to the court on his medical condition.”

The complaint alleged that the article was wholly false and defamatory in that (a) plaintiff was not sentenced to or given one year’s probation; (b) he was only charged with “disorderly conduct”; (c) he did not plead guilty to any charge; and (d) he was not to report quarterly to the court on his medical condition. The complaint further alleged that by reason of the premises of the article plaintiff has been damaged and injured in his reputation and his ability to obtain employment in the community in which he lives. He requested judgment for $500,000.

In the motion for summary judgment, defendants asserted that (1) the newspaper article was a protected exercise of the right to report the actions, utterances, and records of government; (2) the article was a protected exercise of the right to report substantial truth; (3) the article was within the rights of free speech and press guaranteed by the United States and Illinois Constitutions; and (4) the complaint failed to set forth a cause of action.

There were four exhibits attached to the motion. Exhibit “A” was the official record entry of the La Grange Park Police Department concerning the disposition of the plaintiff’s case. It recites that James E. Lotrich was arrested on May 2, 1968, on the charge of “Disorderly Conduct (Exposure)” upon complaint of Mrs. Holzkampf. It was headed as Court Disposition before Judge Harry Schrier on June 26. Then it disclosed the following:

“Plea: Guilty
“Disposition: Guilty as charged, placed on one (1) year probation to be terminated 25 June. 1969; to secure medical assistance and doctor (s) conducting treatments to send court a report quarterly during probation period.”

Exhibit “B” is another entry of the La Grange Park Police Department. It recites that the victim was Mrs. Helen Holzkampf and the offense was “Exposure” on May 2,1968. It then proceeds:

“Charge: Disorderly Conduct
“Hearing
“Judge Harry Schrier
“Finding: Guilty—1 yr. Super to 6/25/69
“To receive medical aid—quarterly reports to court”

Exhibit “C” was the sworn complaint signed by Helen Holzkampf before Magistrate Harry A. Schrier on May 3, 1968. It charges that James Lotrich committed the offense of Disorderly Conduct “in that he knowingly exposed his privates in such unreasonable manner as to alarm and disturb another and to provoke a breach of the peace” on May 2,1968.

Exhibit “D” was the court’s disposition sheet. The order of Judge Schrier recites: “Suspension for 1 year. Quarterly reports from Psychiatric Clinic 6/25/69.”

The record further shows that pursuant to a court order the defendants subsequently filed as exhibits a letter dated October 15, 1968, in which Judge Harry A. Schrier enclosed a certified copy of the file jacket. On the face of the file jacket appears the handwritten entry of the Judge, “Facts stipulated by Atty. for Def. Agreed to 1 yr. Supervision. Trial C. & C. Quarterly reports from Psychiatrist.”

In the recent case of Lulay v. Peoria Journal-Star, Inc., 34 Ill2d 112, 214 NE2d 746, the Supreme Court recognized and applied the privilege of a newspaper to report governmental proceedings free from attack for libel. In that case the article in question stated that the City Health Department had reported that the plaintiff’s grocery store and restaurant had cleaned up eighteen violations of the city’s sanitary code “including mice, flies, and dirt” and had been given a food license. The Supreme Court reversed a judgment for the plaintiff because it concluded that the defendant’s publication was an accurate and capsulized summation of the plaintiff’s six weeks of difficulty with the Peoria Health Department. In support of its conclusion the court stated:

The right to speak and print about such actions of government is well established; denial of this right would be a serious infringement of both State and Federal constitutional guarantees of free speech and press. (Citing numerous cases.) The trial court accordingly erred in holding that the defendant’s publication was libelous per se; the court should have recognized and applied the defense of privilege as a matter of law. 34 Ill2d 112, 114, 214 NE2d 746, 747.

The court held that the privilege to report governmental proceedings includes the right to report the activities of such agencies as the Peoria Health Department and that the privilege can only be defeated by proving a particular publication was motivated solely by actual malice.

If the article is an accurate account of the disposition of plaintiff’s case, then it is privileged as a matter of law. Plaintiff argues that the newspaper article changed the true results of his case. We will examine each of his contentions.

It is argued that plaintiff was only charged with “Disorderly Conduct” while the article said he was charged with “Indecent Exposure,” which is not a crime in Illinois. In fact, he was charged with “Disorderly Conduct in that he knowingly exposed his privates in such unreasonable manner as to alarm and disturb another and to provoke a breach of the peace.” “Indecent Exposure,” in its ordinary meaning, was a fair summary of the full charge and did not carry more horrendous connotations.

Plaintiff argues that he did not plead guilty. While he did not enter a formal plea, the Circuit Court records show that the facts were stipulated by his attorney. The charge was not contested. We do not think that the characterization of this as a guilty plea carried a greater sting.

It is also argued that plaintiff was not sentenced to or given one year’s probation. Plaintiff was given supervision for one year. “Probation” which implies no further punishment on good behavior is not a harsher word than “supervision” which indicates being under someone’s control.

Plaintiff further contends that he was not ordered to report quarterly to the court on his medical condition. Plaintiff does not dispute that the court advised him to seek medical counsel. Once that is established, it is immaterial whether it was plaintiff or the physician who was to report quarterly to the court on plaintiff’s medical condition.

We think that the defendants’ article was an accurate summary of the disposition of the plaintiff’s case. It must be remembered that the same technical accuracy is not required in this case as it would be if the plaintiff were appealing from the judgment of the criminal case. Since the article was generally accurate, the fact that it was inaccurate in stating that the offense was committed before two women when it was actually committed before one, is a minor, immaterial variance and should be disregarded since the substance of the charge was justified. Wilson v. United Press Ass’ns, 343 Ill App 238, 244, 98 NE2d 391, 393.

Plaintiff alleges that the news article was false and inaccurate because it was not a precise and literal report of the court files. It is plaintiff’s contention that the defendants had no right to base news reports upon the police records, but were confined to the court files. As we have already noted, the article was an accurate summary of the disposition of the plaintiff’s case. It is also true, that the courts have consistently held that news reports based on the records and utterances of police and other law enforcement officers are protected by the report privilege. See, e. g., Short v. News-Journal Co. (Del), 212 A2d 718 (1965) (Statements of an Internal Revenue agent); Sherwood v. Evening News Ass’n, 256 Mich 30, 239 NW 305 (statements of local deputy sheriff); Francois v. Capitol City Press (La Ct App), 166 So2d 84 (1964) (entry in police department “log book”); Piracci v. Hearst Corp., 263 F Supp 511 (D Md), affd 371 F2d 1016 (4th Cir) (log and arrest record of city police department).

The present case is distinguishable from the two cases on which plaintiff principally relies. In Coursey v. Greater Niles Tp. Pub. Corp., 40 Ill2d 257, 239 NE2d 837, the defendant’s article stated that the fire and police commission had found the plaintiff, a former patrolman, guilty of all charges and ordered him discharged from the department. In fact, the commission had only found the plaintiff guilty of four of the five charges. The charge on which no verdict was entered alleged that the plaintiff was guilty of “conduct tending to bring the Skokie Police Department in disrepute resulting from the alleged improper conduct complained of by the citizen.” The complaining citizen was a teenage girl who charged that the officer had made immoral suggestions of a sexual character to her. This charge encompassed the “sting or gist” of the allegedly libelous statements in the article charging Coursey with having been adjudged guilty of unbecoming conduct. Since the report of the commission’s proceedings was thus inaccurate as a result of error by the defendant, it was not privileged.

Similarly, in Lorillard v. Field Enterprises, Inc., 65 Ill App2d 65, 213 NE2d 1, the defendant was alleged to have inaccurately reported through its own error that the plaintiff’s former wife had started a suit against him for bigamy after he remarried. Since the defendant had gone beyond the facts and the record, its report was not privileged.

In the present case, the newspaper article was an accurate summary of the disposition of the criminal case against the plaintiff. The article was therefore privileged, and under the authority of .Lulay it must be shown that the article was motivated solely by actual malice. Since the plaintiff did not allege malice, his suit must fail.

The pleadings disclose no factual issues, and summary judgment was therefore properly entered against the plaintiff. The judgment of the Circuit Court is affirmed.

Affirmed.

ADESKO, P. J. and MURPHY, J., concur.


author: MR. JUSTICE DAVIS

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Richard G. Brown, Defendant-Appellant.
    Gen. No. 68-173.
    Second District.
    November 24, 1969.

      Ronald E. Griesheimer, of Waukegan, for appellant.

      Jack Hoogasian, State’s Attorney, of Waukegan, for appellee.
   MR. JUSTICE DAVIS

delivered the opinion of the court.

The defendant, Richard G. Brown, was tried by a jury and found guilty of reckless homicide. He has appealed to this Court, contending that he was denied his constitutional and statutory rights to a speedy trial.

The charge arose out of a motor vehicle accident, which occurred on May 28, 1967. The driver of the other car was fatally injured. At the time of the accident, Joseph Tenuth was a passenger in the defendant’s car. The State’s Attorney filed a complaint against the defendant on May 29,1967, charging him with the crime of reckless homicide. The defendant appeared before the court on June 16, 1967, waived preliminary hearing and was bound over to the Grand Jury. At this time, the court set, and the defendant posted, bond. Several other charges against the defendant, which arose out of the same accident, were nolle pressed. The defendant was not then represented by counsel.

Apparently, the State’s Attorney took no further action on the case until January 2, 1968, when he presented it to the Grand Jury, which, on that date, returned an indictment against the defendant for reckless homicide. The arraignment was continued until January 26, 1968, so that the public defender could appear on behalf of the defendant. On the latter date the defendant was represented by counsel for the first time. The defendant’s counsel entered a plea of not guilty and demanded an immediate trial. On motion of the State’s Attorney, the trial was set for March 25,1968.

When the case was called for trial, the defendant moved for the dismissal of the indictment against him on the ground that the delay, between the time of the filing of the criminal complaint against him and the presentation of the case to the Grand Jury, was prejudicial to him and constituted a denial of his right to a speedy trial. Specifically, he stated that during the delay, Joseph Tenuth, the passenger in his car, had changed his residence, and that thereafter he could not be located to testify on behalf of the defendant. The trial court held that the delay of six to seven months between the filing of the complaint and return of the indictment did not establish a sufficient basis for the quashing of the indictment.

The defendant contends that the delay in this case denied him the right to a speedy trial guaranteed by Section 9, Article II of the Illinois Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution, and cites The People v. Love, 39 Ill2d 436, 441, 235 NE2d 819 (1968), in support of this contention.

The purpose of the constitutional guarantee to a speedy trial is threefold: (1), to prevent undue and oppressive incarceration before trial; (2), to minimize anxiety and concern accompanying public accusation; and (3), to limit the possibility that long delay will impair the ability of the accused to defend himself. Smith v. Hooey, 393 US 374, 21 L Ed2d 607, 611 (1969); United States v. Ewell, 383 US 116, 120, 15 L Ed2d 627, 630 (1966); The People v. Tetter, 42 Ill2d 569, 572, 250 NE2d 433 (1969).

Consonant with this purpose, our Supreme Court has recognized that in determining whether one has been denied a speedy trial, the period commences from the time the complaint or other form of accusation is filed, and not from the time of arrest or incarceration. The People v. Love, supra, 442. Likewise, the court has rejected the contention that the constitutional guarantee to a speedy trial has no application until after a formal prosecution has commenced, and that prior thereto, any delay is governed exclusively by the statute of limitations. The People v. Hryciuk, 36 Ill2d 500, 503, 224 NE2d 250 (1967).

The delay occasioned between the filing of the original complaint, the presentation of the case to the Grand Jury, and the resulting indictment, could constitute a denial of the defendant’s constitutional right to a speedy trial. Whether it did, in fact, depends upon the circumstances of this particular case, and the application of the governing legal principles.

The United States Supreme Court in Ewell, supra, noted that because of the many procedural safeguards given an accused, the criminal proceeding is designed to move at a deliberate pace. A requirement of unreasonable speed could seriously affect both the rights of an accused and the ability of society to protect itself. The right to a speedy trial is necessarily relative; it is consistent with delays and depends upon the circumstances of the case. (383 US, p 120, 15 L Ed2d, p 631.)

In Ewell, the defendants originally were indicted in 1962 and pleaded guilty in connection with a narcotics charge. Subsequently, it was held in another case that the type of indictment, to which the defendants had pleaded, was defective. Their convictions were then vacated, and the defendants were immediately indicted in connection with the same narcotics sales but under a different statutory provision. The court held that under these circumstances, the delay of some 19 months, between the time of the arrest and the subsequent indictments, did not constitute a denial of their constitutional rights. The court observed that the subsequent indictments were brought well within the applicable statute of limitations, and that by the first indictments the defendants had been put on early notice that the government intended to prosecute them with respect to these particular sales of narcotics. It also noted that no witnesses were known to have disappeared and no evidence appeared to have been lost.

Our Supreme Court has indicated that the four factors to be given particular consideration in determining whether one has been denied the right to a speedy trial are: the length of delay; the reason for the delay; the prejudice to the defendant; and the defendant’s waiver of the right. The People v. Tetter, supra, 573.

The length of the delay in this case, by itself, is not unduly long. It is well within the applicable statute of limitations. Ill Rev Stats 1967, c 38, § 3-5. This obviously is significant (The People v. Ewell, supra, 383 US, p 122, 15 L Ed2d, p 632), although not conclusive (The People v. Hryciuk, supra, 503). We are given no explanation or reason for the delay. It appears that the prosecution made no attempt to bring this matter before the Grand Jury until January of 1968, although the original complaint was filed in May of 1967. We can only presume that the delay was deliberate and intentional, and that the State’s Attorney had elected to proceed with other matters which he considered to be more important.

In the trial court, the defendant argued that he was prejudiced by the delay in that he was no longer able to locate Joseph Tenuth as a witness. It appears from the abstract of record that the State’s Attorney had last talked to Tenuth about the end of May, 1967. For all that appears, Tenuth might have been just as difficult for the defendant to locate had the Grand Jury indicted the defendant in July of 1967. The record does not indicate when Tenuth moved, but since he was a passenger in the defendant’s car, it is apparent that he was an acquaintance of the defendant.

We do not believe that the delay could mislead the defendant into believing that no action would be taken against him by virtue of the death caused in the accident. A criminal complaint had been filed against him, and he was free on bond. It would seem that if he felt that Tenuth’s testimony was indispensable to him, he would have kept in touch with his acquaintance.

We recognize that where a delay is deliberate, and it appears that some prejudice might have resulted therefrom, these factors suggest strongly the possibility of denial of due process to the defendant. Ross v. United States, 349 F2d 210 (US App DC 1965). The so-called prejudices here, however, if real, could have been avoided by the defendant by the exercise of diligence in keeping in touch with Tenuth. While the right to a speedy trial must be diligently safeguarded, it should serve as a shield for the defendant’s protection, not as a sword for his escape. Also, we note that the defendant did not make a motion for a continuance.

Here we are dealing, not with an alleged denial of a trial within the prescribed time, but rather, with an alleged failure to indict within a reasonable time. The defendant cannot claim that he was unaware of the complaint against him. He appeared, waived preliminary hearing, and posted bond to secure his liberty pending the presentation of the matter to the Grand Jury. The circumstances of this case do not indicate an unreasonable delay in the presentation of the case to the Grand Jury. In addition, the case was tried within the statutory period.

We do not believe that the delay between the complaint against, and the indictment of, the defendant in the case at bar, violated his constitutional rights. He was not unduly or oppressively incarcerated; the record indicates no reason why indictment at an earlier date would have minimized the defendant’s anxiety and concern accompanying public accusation; and, the delay, absent lack of due diligence on the part of the defendant in not keeping in touch with the witness, Tenuth, did not impair the defendant’s ability to defend himself. In view of our conclusions, we need not consider whether thé defendant waived his right to a speedy trial, as guaranteed by the Illinois and United States Constitutions. Consequently, the judgment of the trial court should be affirmed.

Judgment affirmed.

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


author: MR. JUSTICE SEIDENFELD

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Edward Lee Sevastos, Defendant-Appellant.
    Gen. No. 69-60.
    Second District.
    November 24, 1969.

      John T. Beynon, Public Defender, of Rockford, for appellant.
    Philip G. Reinhard, State’s Attorney, of Rockford, and Jack C. Tower and R. J. McFarland, Assistant State’s Attorneys, for appellee.
   MR. JUSTICE SEIDENFELD

delivered the opinion of the court.

Defendant, Edward Lee Sevastos, has appealed from a judgment of conviction of the crime of attempted kidnapping, entered upon a jury verdict. Defendant was sentenced to the penitentiary for a term of 2 to 5 years.

The appeal raises the questions: whether the testimony was sufficient to convict; whether defendant was prejudiced by remarks made by a judge in the courtroom where part of the jury panel was present on the day prior to the trial; and whether it was error to permit the State to bring out the precise nature of defendant’s prior felony conviction on cross-examination when he had admitted to a prior felony conviction without identifying the crime, on direct examination.

Defendant’s argument that the proof is insufficient, more precisely is directed to a claim that the testimony of the complaining witness, allegedly uncorroborated, was insufficient to support the conviction in view of defendant’s complete denial.

Mrs. Constance Morgan testified that on the evening of September 8th, 1968, she and her husband had taken clothes to the laundromat to be laundered. They returned to their apartment which was 3 or 4 blocks away where they visited with friends, Curtis Sowl and his wife. Later Mrs. Morgan returned to the laundromat to pick up her laundry and returned at about 9:45 or 10:00 p. m. in her car which she then parked on a street to the side of her apartment building. She took the laundry out of the car and was approximately halfway to the steps of her building when she saw a car pull up in back of her car. She testified that she saw a man get out of the car, whom she later identified as the defendant, that he grabbed her as she was walking toward the stairs and put his hand over her mouth, telling her to shut up or he would kill her; that he put one hand on her neck and she started screaming for her husband and then he was choking her and then she was on the ground. She said:

. . he was sort of like dragging and just choking and by this time I knew I was by his car. I don’t know how I got there.”

She testified that defendant was trying to push her into his automobile and she was hanging onto the door and as she got halfway in the car she was hanging onto the steering wheel; that after he got her in he was choking her for awhile, and then she was on the passenger’s side and the next thing she remembered was that her husband was there and was pulling her out. She testified that when she was placed in the car she was lying down on the front seat of the car and was screaming; that she had not seen her husband approaching the car; however, when her husband opened the door, she was sitting up on the passenger’s side of the front seat. She said she was in the car approximately a minute or two. The complaining witness testified that Mr. Morgan tried to disconnect something under the hood of the car and he was beating on the top of the car roof with a piece of wood. Mrs. Morgan further testified she saw the car’s license plate, but did not obtain the last digit; and that she received a cut and a scratch or bruise on her eye, a cut on her leg and scratches on her neck (photographs taken of the complaining witness on the following day at the Rockford Police Department were introduced as Exhibits).

Edward Morgan testified that he was becoming worried since his wife had not returned from the laundromat. He had gone to the back door and had then started walking down the stairs, at which time he saw some of the clothes his wife had taken to the laundromat laying on the ground and saw that the clothes basket was tipped over with some clothes still in it. At that point he heard his wife screaming and proceeded down the stairs, but could not see anyone in either car until he opened the car door of the other vehicle and saw his wife and then pulled her from the car.

Defendant testified that he parked his car directly behind the complaining witness’s car, rolled down the window on the passenger’s side and called to her to come over. That she came over and entered the car and they were talking when the husband approached the car, and that this was the first time she screamed. He stated that he didn’t see the basket of clothes upset, but that he saw her lay it down when she came into the car. He denied any threat to the complaining witness, or that he put his hands upon her in any way.

Curtis Sowl testified that he heard Morgan going down the back stairs and he went to the bedroom and looked out. He saw the defendant’s car and someone behind the wheel. He saw the complaining witness in the car and saw the husband on the bottom of the stairs. He testified that the first time he heard any screams was when the husband opened the door and pulled his wife out of the car.

The testimony of the complaining witness and that of the defendant are completely opposed. But even if it could be said that the complaining witness’s version of the occurrence was uncorroborated, there was sufficient evidence to convict. The testimony of even one witness, if positive and credible, is sufficient to convict in a criminal prosecution even though it is contradicted by the accused. The People v. Novotny, 41 Ill2d 401, 411, 244 NE2d 182 (1968). The jury is not bound to accept defendant’s exculpatory statements as true in any event. The People v. Warren, 33 Ill2d 168, 174, 210 NE2d 507 (1965). It has often been stated that the courts will not reverse a judgment of conviction unless the evidence is so palpably contrary to the verdict, or so unreasonable, improbable or unsatisfactory as to justify entertaining a reasonable doubt of defendant’s guilt. The People v. Williams, 40 Ill2d 522, 526, 240 NE2d 645 (1968). We do not so find the evidence in this case.

The problem here clearly was one of credibility. There was testimony of the husband of the complaining witness, as well as physical facts, which could have been found by the jury to corroborate the testimony of the complaining witness. That there was conflicting testimony and the possibility of conflicting inferences from the physical facts created issues of weight and credibility which were for the trier of fact. No injustice is apparent from our view of the record in the way the jury resolved the issues.

Defendant’s claim that he was deprived of a fair trial because of remarks made in the presence of the jury panel, relates to events which occurred in another courtroom and before a judge other than the trial judge on a day prior to the trial.

At that time the entire unassigned jury panel was in the rear of the courtroom of the chief judge. Defendant appeared before that judge with his counsel and made a motion for a change of venue from the county and also for a change of judge. The court stated that he would grant the change of judge but not the change of venue, stating,

“You are entitled to a fair and impartial trial, but it’s getting to the point where you are trying to play cozy with the Court, and I am not going to permit it. You don’t have to try the case before me. I will send it to some other Judge. But it gets sickening the way you fellows sit up in jail and try to impede the administration of justice, and I am here to see it is not impeded, and that’s what I’m going to do.”

The defendant then stated to the court that his main concern was to get the right to get his bond fixed so that he could “get out on bond and get enough money to help fight his case.” The court then stated,

The Court: “We don’t want you out on bond.”
The Defendant: “This, I understand.”
The Court: “Yes. You have been out on bond before. Isn’t that correct?”
The Defendant: “That’s correct, sir.”
The Court: “And you have committed a crime while you were out on bond, didn’t you?”
The Defendant: “No I didn’t.”

The State’s Attorney then indicated that the instant charge was the only one for which he had been indicted.

We have before us both the transcript of the colloquy before the court on the day prior to the trial and the transcript of the voir dire examination. The State has pointed out, and the record confirms, that at the time the remarks were made, counsel for the defendant did not object to the remarks or indicate that he believed any prejudice had occurred, nor did he seek a continuance. Nor does the record of the voir dire examination indicate any objection to the panel, or a request for a continuance. There is no indication in the record as to the proximity of the jury to the place of the colloquy before the court on the day prior to trial, or as to the audibility of the remarks, nor does the record indicate how many of the complete venire was present at that time.

The record of the voir dire examination does indicate that only a few of the jurors actually selected to hear the defendant’s case had been present when the remarks were made on the previous day. Of the 12 jurors eventually selected for the defendant’s trial, 7 jurors on voir dire indicated that they had not been present in the courtroom when these remarks were made. Another juror indicated that she was present but had not been paying attention to the judge’s remarks, and said that she had not been prejudiced in any way against the defendant. Of the remaining 4 jurors, one was not asked whether he had been present in the courtroom when the remarks were made; 3 jurors who were selected were determined on voir dire to have been present when the remarks were made. However, none of them were asked if they had, in fact, heard the judge’s remarks. They were questioned generally by the defense counsel and stated that they felt no prejudice whatsoever concerning the defendant as the result of any remark they might have heard the day before. While defense counsel argues, and the record confirms, that he used all of his peremptory challenges to excuse jurors who were in the courtroom the previous day, there is no indication that defense counsel asked for excuse of any juror for cause as a result of having heard the remarks.

In addition, the record reflects that at one point during the selection, the trial judge took the further precaution of questioning the potential jurors as to whether they had been influenced in any way regarding the defendant by remarks they might have heard the previous day, and no juror indicated that he had been influenced in any way. The court then admonished the jurors that they could decide the case only on the evidence they would hear during the trial.

While we must condemn the practice of conducting hearings on motions in criminal cases in the presence of any part of a jury panel which may later be called to hear the trial of the case, we do not find prejudice to the defendant under the circumstances of this case. On this record the incident complained of did not deprive the defendant of a fair trial.

The final claim of error involves the direct examination and the cross-examination of the defendant. At the close of direct examination defendant’s counsel inquired of the defendant whether he had been in trouble before. Defendant’s affirmative answer was followed with a question “You pled guilty to the charge of a felony at one time?” The defendant answered that he did, and when asked whether he went to the penitentiary defendant answered that he “got 1 to 3,” and got out of the penitentiary in June of 1967.

On cross-examination the prosecutor indicated that he would ask the defendant “what the crime was.” Over defense counsel’s objection the prosecutor was permitted to ask the question,

“Was it the offense of attempted rape of a woman? Was that the offense you were convicted of?”

Defendant answered that he was charged with attempted rape and had pleaded guilty.

Defendant’s counsel forthrightly states that the purpose of his questions to defendant on direct examination was to avoid the possibility of the State introducing proof of defendant’s record of a prior conviction for an infamous crime, for purpose of impeachment. He argues that the purpose of the rule is to enable the jury to know of a prior conviction in order to test the credibility of a witness, and that when the defendant has admitted a conviction there is no further need for impeachment and the pursuing of the inquiry more precisely can only result in prejudice to the defendant’s case. And that this is true in a practical sense even though the jury was instructed that they were not allowed to use the prior conviction as proof of the crime for which the defendant was being tried.

The People contend that the specific nature of the defendant’s prior conviction is a relevant fact under the circumstances of this case, which should be presented to the jury for their consideration, going to the credibility of the defendant. The People concede that if the defendant had not testified to the prior conviction that there would have been no right to cross-examine on that question, but that the State would be required to introduce the record of conviction of an infamous crime or an authenticated copy for impeachment purposes. The defendant, however, cannot claim error or prejudice to the extent he has opened the door on direct examination. See The People v. Nastasio, 30 Ill2d 51, 58, 195 NE2d 144 (1963). See also The People v. Bey, 42 Ill2d 139, 147, 148, 246 NE2d 287 (1969). The People contend that under the circumstances of this case the specific nature of the defendant’s prior conviction is a relevant fact opened up to cross-examination by the defendant’s statement on direct examination that he had committed a prior felony.

We have not found any authorities in this State directly in point, but the United States Court of Appeals for the 10th Circuit has recently ruled on a similar question.

In Martin v. United States, 404 F2d 640 (CCA 10th, 1968), the court stated on pages 642-643:

“The question presented by Martin’s appeal, is in fact, very narrow; i. e., what is the permissible scope of the prosecution’s cross-examination into prior felony convictions of the accused, when the accused has testified in his own case in chief, and has admitted a previous felony conviction? This question involves two conflicting legal policies, i. e., the Fifth Amendment right against self-incrimination versus the testing by cross-examination of witnesses concerning details of testimony introduced during a trial.
“The underlying answer to this question has been settled by the Supreme Court. ‘ (The) correct statement of the law (is) . . . that by her (the accused’s) direct testimony she had opened herself to cross-examination on the matters relevantly raised by that testimony/ The narrower question deals with the limits of the Brown holding as it applied to an accused’s testimony about previous felony convictions.
“[1, 2] When Martin testified on direct examination and opened up the topic of his previous felony conviction, he assumed the risk that some of the details of that conviction would be ‘matters relevantly raised,’ and subject to elaboration by cross-examination. This court does not believe, however, that the prosecution may be given unlicensed latitude in cross-examining the accused about a prior felony for two reasons. First is the unnecessary and unwarranted delay in the trial and second is the policy against introducing extraneous and possibly prejudicial or inflammatory testimony concerning matters unrelated to the present trial. The proper rule was aptly stated in a recent Fourth Circuit opinion:
“ ‘We do not question the well-settled rule that a defendant who voluntarily offers himself as a witness and testifies in his own behalf subjects himself to legitimate and pertinent cross-examination to test his veracity and credibility. Cross-examination of an accused as to collateral matters should properly be limited to an effort to discredit him as a witness, and the limit is exceeded when the questions are not useful for that purpose and the necessary result, and perhaps the purpose, is merely to prejudice the jury against the defendant.’
“[3] The questions which the prosecution should be permitted as a minimum right in the circumstances of this case are, what was the felony and when was it committed? These questions are within the ambit of ‘matters relevantly raised by’—‘direct testimony.’ The prosecution’s cross-examination did not exceed these limits in the instant case. Whether or not broader cross-examination is permissible is for the discretion of the trial judge.” (Citations partially omitted.)

We are persuaded by this reasoning and conclude that the limited examination conducted below was relevant under the circumstances of this case and within permissible limits.

We, therefore, affirm the judgment below.

Affirmed.

MORAN, P. J. and DAVIS, J., concur.

       Brown v. United States, 356 US 148, 157, 2 L Ed2d 589, 78 S Ct 622, 628 (1958).

       United States v. Pennix, 313 F2d 524, 528 (4th Cir 1963).


author: MR. JUSTICE McCORMICK

text:
    People of the State of Illinois, Plaintiff-Appellee, v. Albert Hall, Defendant-Appellant.
    Gen. No. 52,952.
    First District, Second Division.
    November 25, 1969.

      Gerald W. Getty, Public Defender of Cook County, of Chicago (Harold A. Cowen, 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 James R. Kavanaugh, Assistant State’s Attorneys, of counsel), for appellee.
   MR. JUSTICE McCORMICK

delivered the opinion of the court.

The defendant was indicted for the unlawful sale of narcotic drugs, and on November 20, 1967, was tried before a jury, found guilty and sentenced to a minimum term of ten years and a maximum term of ten years and a day in the Illinois State Penitentiary. This appeal is taken from that judgment.

In this court the defendant argues that his rights were violated when he was restricted in cross-examination concerning the address of the addict-informer who testified in the case; and when the police used an addict-informer to make the alleged purchase of narcotics.

Of necessity the police have established a technique of “controlled sales” in order to apprehend those dealing in the unlawful sale of narcotics. Floyd Flemister, a narcotics user, was searched on May 27, 1967, by members of the Chicago Police Department to verify that he had no narcotics or currency in his possession. He Was then given two five-dollar bills and five one-dollar bills after the serial numbers had been recorded, and was taken by by the police to the vicinity of 43rd Street and Vincennes Avenue, in the City of Chicago, where he met the defendant and told him he wanted to buy narcotics. The defendant and another man who was with him walked out of sight and returned in ten or twenty minutes, after which the three went to a restaurant. Officer Winfred Ray, watching from across the street, saw the informer hand money to the defendant; he then changed his vantage point, and from two to five feet away, saw the defendant hand the informer something at the doorway of the restaurant.

The defendant and the man with him (Emanuel Edwards) then went into a food store for a few minutes while the informer returned to the corner where Officer Crosier was standing (there were three policemen at the scene). Officer Crosier opened the tinfoil package the informer gave him and found a white powder; he then signaled Officer Ray, who arrested the defendant and Edwards. A subsequent chemical analysis showed the powder to be heroin.

During the time between the sale and the arrest, the suspects had entered three stores. The third officer, Terry Cornell, checked the stores and found one of the prerecorded five-dollar bills in one store; a search of the defendant’s person disclosed the five prerecorded one-dollar bills.

In the defendant’s trial the informer stated that his real name was Floyd Flemister, but that he used the name of Albert Cross; that he was a special employee of the Chicago Police Department and had twice been convicted of felonies prior to this time. On cross-examination he admitted that he had received money from the police in payment; that he was a narcotics addict, and performed odd jobs to support his habit. He stated that he and the defendant knew one another from the neighborhood, and that the defendant knew him by his nickname of “Bio.” He testified that he had always lived in Chicago and was presently separated from his wife and children. When asked where he lived the following colloquy occurred:

Q. “Where do you live, Mr. Cross ?”
Mr. Motherway (Assistant State’s Attorney): “Object.”
The Court: “What is the basis of that objection?”
Mr. Motherway: “Ray case among other things, your Honor, plus its irrelevancy.”
The Court: “All right. Objection sustained.”

Based on this ruling of the trial court, the defendant argues that his rights under the Sixth Amendment to the Federal Constitution were violated in that he was denied his right to effectively cross-examine the informer. He further argues that when the addict-informer takes the stand there are no “protected areas of inquiry,” and that United States Supreme Court opinions have specifically held that the defense is entitled to elicit the place of residence of the witness.

In Alford v. United States, 282 US 687, 689, the court agreed with defense counsel that “the jury was entitled to know ‘who the witness is, where he lives and what his business is.’ ” We do not feel, however, that this statement was meant to be available to every defendant in every criminal prosecution, regardless of the facts. We believe the intent of the opinion is that the defendant is entitled to place the witness in his proper setting to subject the weight and credibility of the witness’ testimony to scrutiny by the finder of fact. (See pages 691-692 of Alford.) In that case the government witness was in the custody of federal authorities, and the defense wanted to show that his testimony “was biased because given under promise or expectation of immunity, or under the coercive effect of his detention by officers of the United States, which was conducting the present prosecution.” (At page 693.)

In the instant case the jury had learned considerable detail about the addict-informer who had been adequately placed in his proper setting.

In Smith v. Illinois, 390 US 129, the United States Supreme Court reversed a criminal conviction on the ground that the defendant had been denied his right to cross-examination and confrontation when the trial court protected a witness from being discredited. As in the case before us, the witness was an addict-informer who testified about his alleged illegal purchase of narcotics from the defendant. On cross-examination the trial court had sustained objections to questions as to the real name of the witness and his address. The court said at page 131 that “when the credibility of a witness is in issue, the very starting point in ‘exposing falsehood and bringing out the truth’ through cross-examination must necessarily be to ask the witness who he is and where he lives.” (See Pointer v. Texas, 380 US, at 404.)

In Smith the police officers could not corroborate the essential aspects of the informer’s testimony, so the relative credibility of the petitioner and the informer was the critical question in the trial. In the instant case the officers did corroborate the testimony of the informer, but we do not feel that this distinction is sufficient to justify a different result. It is true that the credibility of the informer in the instant case was still an issue, since his testimony was certainly the most damaging part of the prosecution’s case against the defendant. Although the officers witnessed the transaction they did not hear what was said; the informer alone could testify as to the conversation between himself and the defendant, and thus his credibility was definitely at issue. At the trial the informer testified as follows:

There is a livery cab stand at 4258 Vincennes. I saw Mr. Hall there and a man named Emanuel Edwards. I told them I wanted to cop. This means to buy narcotics. Then I waited at the northwest corner of 43rd and Vincennes for the two to return, some 15 to 20 minutes. They returned, and I asked them if it was ready and they said yes.

He also testified that he handed the defendant $15 and received in return a tinfoil package of narcotics. It cannot be said that his testimony was not an important part of the State’s case. Under these circumstances we find applicable to this case the statement in Smith that when credibility is in issue, the defense is entitled to have the informer give his real name and address.

In United States v. Garafolo, 385 F2d 200 (7th Cir), the services of an informer had been used in obtaining a conviction against Garafolo for the unlawful sale of narcotic drugs. The informer, Haney, testified at the trial. At page 206 of the opinion the court made the following statement:

In the instant case, Haney was not permitted to testify concerning his address at the time of trial, but was permitted to testify that his address at the time of the first heroin purchase from appellant was 7104 Union Street, Chicago, Illinois. Agent Cook testified that after the third, fourth, and fifth purchases from appellant, he drove Haney to 71st and Union Streets; from this it could reasonably be inferred that Haney’s residence continued at the Union Street address. Other aspects of Haney’s background, including his prior murder conviction, his prior arrest for carrying a gun without a permit, his employment record, and his arrest for sale of narcotics shortly before he began cooperating with narcotics agents, were brought out on direct and cross-examination. Defense counsel were permitted to inquire whether Haney received compensation from the Government, whether he had used an alias, and whether he had been promised leniency in return for his cooperation. In light of the wide latitude allowed on cross-examination, the trial court’s refusal to permit cross-examination concerning Haney’s residence at the time of trial was not prejudicial error. Haney was sufficiently identified with his community to enable appellant to investigate his reputation for truth and veracity in that community. His personal character was deeply probed by defense counsel.

The court concluded that defendant had not been denied his right of cross-examination and confrontation when he was not permitted to have the informer state his address as of the time of trial.

That case was decided October 11, 1967; the opinion in Smith v. Illinois, supra, was not filed until January 1968. The United States Supreme Court took Garafolo on a writ of certiorari, vacated the judgment of the Circuit Court and remanded with instructions to reconsider the case in the light of Smith v. Illinois, supra. On remand the Federal Circuit Court of Appeals entered a per curiam order which can be found at 396 F2d 952. In that order the court said that on further consideration of the record and consistent with the mandate of the Supreme Court, the judgment of conviction was reversed and the cause remanded to the District Court for a new trial. It would appear that the Seventh Circuit of Appeals concluded that Smith v. Illinois, supra, required a reversal of Garafolo’s conviction.

It is apparent that the informer in Garafolo gave more information about himself and his address than did the informer in the case before us. It would seem that a reversal would be required in the instant case; however, in reversing and remanding for a new trial, it is well to mention two opinions of the Seventh Circuit, Federal Court of Appeals, which were handed down following the Smith and Garafolo opinions in the Supreme Court. Both cases recognize that where the record shows the life of the witness would be endangered by the disclosures sought, the trial court may properly sustain objections and not permit the requested information to be given.

In United States v. Varelli, 407 F2d 735 (7th Cir), the court distinguished Garafolo by noting at page 750 that there was no evidence as to the witness’ life being in danger in Garafolo. In the instant case there is no showing of any danger to the life of the informer and therefore, the objection to the disclosure of his address should have been overruled. In United States v. Palermo, 410 F2d 468 (7th Cir), the court went into great detail in this regard, and said at page 472:

This Court agrees with Justice White (concurring opinion in Smith) that where there is a threat to the life of the witness, the right of the defendant to have the witness’ true name, address and place of employment is not absolute. United States v. Varelli, 407 F2d 735 (7th Cir 1969). However, the threat to the witness must be actual and not a result of conjecture. Shaw v. Illinois, 394 US 214, 89 S Ct 1016, 22 L Ed2d 211 (1969). The government bears the burden of proving to the district judge the existence of such a threat.

This court is not so far removed from the realities of life that it can fail to take judicial notice of the present trends and of the fact that in many cases the informer might be in danger of his life if he testifies as to certain matters. We think that the rule set out points to a practical and sensible solution of the problem. The information with reference to the actual danger to the informer’s life should be disclosed to the trial judge who may then make a determination as to whether or not the witness should be compelled to state his true name, present address and place of employment. The trial court’s determination will, of course, be subject to review. Such a procedure will assure to the defendant his right of cross-examination, but will prevent unnecessary disclosures which would serve no proper purpose but would only place the life of the informer in jeopardy.

The judgment of the Circuit Court is reversed and the cause is remanded for further proceedings not inconsistent with the views expressed in this opinion.

Judgment reversed and cause remanded.

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


author: MR. PRESIDING JUSTICE LYONS

text:
    Wilbur C. Summers and Jewell E. Summers, PlaintiffsAppellees, v. Northern Illinois Gas Company, a Corporation, Defendant-Appellant.
    Gen. No. 53,056.
    First District, Second Division.
    November 25, 1969.

      Robert H. Joyce, Raymond J. Kelly, George E. Preonas, Seyfarth, Shaw, Fairweather & Geraldson, of Chicago, for appellant.
    Nathan G. Brenner, Jr., Goldenson, Kiesler, Berman & Brenner, of Chicago (William Elman, Elman and Ehardt, of counsel), for appellees.
   MR. PRESIDING JUSTICE LYONS

delivered the opinion of the court.

The defendant corporation, Northern Illinois Gas Company, appeals from a final judgment, entered on a jury verdict, in favor of the plaintiffs, Wilbur C. Summers and Jewell E. Summers, his wife, in the sum of $8,200. In this appeal, it contends that the trial court erred in allowing the case to be submitted to the jury on a res ipsa loquitur theory and in giving the jury certain instructions tendered by the plaintiffs. The defendant corporation also urges that the evidence does not support a finding of liability against it.

The plaintiffs brought this suit for the property damage resulting from a fire, allegedly gas-fed, in their two-story frame dwelling located in Steger, Illinois. No one was injured. The complaint contained two counts pleaded in the alternative. Count I was based upon a res ipsa loquitur theory and contained a general allegation of negligence based upon the defendant corporation’s exclusive possession and control of the southeast corner of the basement wherein certain gas transmission lines, pipes and meters owned and maintained by the defendant corporation were located and wherein on March 2, 1962, a fire began which was communicated to the upper floors of the residence causing property damage to be sustained. Count II of the complaint contained five specific acts of negligence allegedly committed by the defendant corporation.

In its answer, the defendant corporation admitted that it owned, operated and maintained certain gas transmission lines or pipes and gas meters in that portion of the basement as alleged by the plaintiffs but denied that it was guilty of any negligence and that its gas was highly inflammable, combustible and explosive.

Eleven witnesses testified for the plaintiffs, nine of whom are important for the issues raised by this appeal. Two were occurrence witnesses, two were adverse witnesses employed by the defendant corporation, and one was an expert witness. Five witnesses testified for the defendant corporation, all employees of the defendant. At the close of the evidence presented by the plaintiffs, the trial court sustained the motion of the defendant corporation and struck count II of the complaint for failure of proof. The plaintiffs have not cross-appealed from that ruling. Only the res ipsa loquitur theory of the complaint and the accompanying evidence are before this court.

The two occurrence witnesses were the coplaintiff, Jewell E. Summers, and her daughter, Deborah. Deborah, who was sixteen at the time of the trial and ten when the fire occurred, testified that on March 2, 1962, two employees of the defendant corporation arrived shortly after lunch and left at approximately 2:30 p. m. after working in the basement for about an hour; that at approximately 4:00 p. m. on March 2, 1962, she smelled smoke and informed her mother, who checked the food which was cooking in the kitchen but noticed nothing unusual; that she then said she smelled gas whereupon her mother entered the dining room and, looking into the living room, saw flames shooting up; that Deborah also looked into the living room and saw flames shooting up from the southeast corner of the room at a height of approximately one foot from the floor; and that the fire was limited to this area. Deborah also stated that she was home all day on March 2, 1962, and no one was in the basement that day except the employees of the defendant corporation; that the basement was unfurnished and was completely vacant in the southeast corner. Nothing was stored there. There was vertical shelving but it did not extend to the southeast corner. In conclusion, Deborah testified that when she last went into the basement quite some time before the fire occurred, she did not smell any gas there.

Mrs. Jewell E. Summers testified that she and her husband had purchased their home in 1960; that in August or September, 1960, her husband had installed a new gas furnace and new hot water heater in their residence, placing them in the center of the basement; that the family had occasion to use these fixtures for over a year and never had any trouble with them; and that she never smelled an odor of gas in their home from the time they moved in until the fire occurred. She and her husband also remodeled their attic by raising the roof and converting the attic into a five-room second floor apartment. Her husband then wanted a new gas meter installed in the basement which would be used by the second floor tenants. She called the defendant gas company and on March 2, 1962, between 1:00 and 1:30 p. m., two employees arrived at her home to install this new meter.

Mrs. Summers admitted the two men into the basement and left them there to work as she returned upstairs to rejoin her daughter and her parents who were visiting that day. She did not see or hear the men depart after finishing their work in the basement. They did not say they were leaving. Her parents left about 3:00 p. m. On March 2, 1962, neither her parents nor any member of her family were in the basement. Only the two men employed by the defendant corporation were in the basement on that day.

Mrs. Summers substantially corroborated the testimony of her daughter regarding the fire which she saw in the living room at about 4:00 p. m. The flames were limited to the southeast corner of the living room and seemed to be coming from the basement. After calling the fire department, Mrs. Summers ran down the basement steps, looked into the basement, and saw the fire in the southeast corner. The flames were touching the ceiling. Mrs. Summers also said that the flames seemed to begin at the gas meters and the fire looked as if it was coming out of the meters. She saw this within two minutes after seeing the fire in the living room. The fire department arrived fifteen minutes later. In conclusion, Mrs. Summers testified that she heard no explosion before she saw the flames in the living room; that she was smoking on the day of the fire but only in the dining room and not in the front room; and that her parents also smoked.

Henry P. Martin testified that on March 2, 1962, he was a member of the Steger volunteer fire department and arrived at the Summers’ home shortly after 4:00 p. m.; that the fire was then in progress; that after fighting it from the outside of the house, he and some of his co-workers made a foot-long hole in the front of the home in the southwest corner, put a hose line in the walling, and directed water upward to put out the smoke. The fire was extinguished in about thirty minutes. He went into the inside of the house and noticed that the living room was the most charred room in the home.

The parents of Mrs. Summers, Mr. and Mrs. Earl Davis, both testified that they did not go into the basement on March 2, 1962, and that the employees of the defendant corporation arrived at around 1:00 p. m. on that date but they did not know when these men left. The Davises also stated that they left their daughter’s home at around 3:00 p. m.; that they both smoked on that day but only in the dining room where the television set was located and not in the living room; and that when they left they did not smell any gas or smoke nor did they see any fire. Mrs. Davis stated that she washed clothes in her daughter’s basement on the day before the fire and was in the basement for about three hours on that day but did not smell any gas.

The other coplaintiff in this case, Wilbur Summers, testified that he had, in 1960, personally installed the gas furnace and hot water heater, placing them in the center of the basement, as well as the gas line which ran from these fixtures to the gas meter located in the southeast corner; that he could not recall if he or the defendant gas company had connected this gas line to the gas meter but that the gas company had checked the line after he had installed it and before they turned on the new gas furnace; that he had never detected an odor of gas in the basement from the time he installed the line in 1960 to the day of the fire in 1962; and that he never had any trouble with the gas furnace or hot water heater and that, after the fire, these fixtures did not lose their utility but rather only sustained smoke and water damage.

Mr. Summers also stated that he arrived home on March 2, 1962, at 4:15 p. m.; that he saw smoke coming from only the front end of the house at the southeast corner; that the fire was extinguished by about 4:30 p. m.; that representatives of the defendant corporation were present by then with two or three trucks and three or four cars; and that these men seemed to be working in front of his home. In conclusion, Mr. Summers testified that he went into his basement shortly after the fire was extinguished and both gas meters were gone. There was no fire damage in the area of the basement where he had installed the gas fuel line. He did not have to repair any floor joists in this area either.

The two adverse witnesses called by the plaintiffs were Earle Porter, a meter inspector for the defendant corporation on the day of the fire, and Robert Schnare, division construction manager for the Eastern division of the defendant corporation. Both men were present at the scene of the fire after it had been extinguished. Porter testified that he saw another employee, Richard Yost, remove the gas meters and regulator from the basement and put them into the back of his truck to be returned to the defendant’s shop. Porter never saw this equipment again. He was in the basement after the fire and, along with Yost, conducted an air test of that portion of the gas fuel line belonging to the plaintiffs and not to the defendant corporation. Yost attached a testing device to the opening of the customers’ fuel line and used an air pump to fill this pipe with eight pounds of air pressure. Porter thereafter saw the gauge go down to zero indicating that the Summers’ fuel line did not hold air.

Porter went on to state that the defendant corporation owned a gas main located in the street adjacent to the plaintiffs’ residence; that the gas in this main was under a pressure of twenty pounds per square inch; that the gas was transmitted from there to the Summers’ residence and their gas meters by means of a %" underground service pipe which entered their home through the southeast corner of the basement wall; that inside the basement was located a %" valve, a regulator, some pipe fittings, and the meters; and that the purpose of the regulator is to reduce the gas pressure from twenty pounds per square inch to % pound per square inch, which latter pressure then moves through the meter and into the fuel lines owned by the customer.

Robert Schnare testified that the defendant corporation furnished natural gas to the plaintiffs’ home; that this gas was lighter than air and would rise if exposed to air; that he arrived on the scene later than 5:00 p. m. on March 2, 1962, after the fire department had left; that he observed an air test being conducted by employees of the defendant corporation on the defendant’s gas service line running underground from the gas main in the street to the Summers’ residence; and that air was pumped into the pipe to a weight of ninety-five to one hundred pounds, but the air pressure started to fall off, indicating a leak in the defendant corporation’s gas service line located outside the house. He also observed Porter and Yost in the basement testing the plaintiffs’ fuel line. It also did not hold air pressure, indicating a leak therein. Soap suds were put on two fittings found on the plaintiffs’ piping and air bubbles appeared which was another indication of an air leak in the plaintiffs’ fuel line. When Schnare looked into the southeast corner of the basement, he saw that the gas meters were gone.

Gerald Maatman, an expert witness, testified for the plaintiffs. He was a graduate of the Illinois Institute of Technology, with a degree in Fire Prevention and Safety Engineering. During the time he was employed as an assistant chief engineer of the Illinois Inspection Bureau, a fire insurance rating bureau, for nine years and later as a professor and director of the Department of Fire Protection at the Illinois Institute of Technology for seven years, he had examined several buildings while conducting fire loss investigations attempting to determine the cause of a given fire. He had examined the Summers’ residence in July, 1962, and saw fire damage in the southeast corner of the living room as well as in the same corner of the basement. The fire damage in the basement was confined almost entirely to the southeast corner which was directly below that portion of the living room which had been damaged. The basement ceiling studs which supported the living room floor were heavily charred on the bottom in this corner of the basement as were the floor boards and joists.

Maatman also examined the gas furnace and hot water heater but found no structural damage, as well as no damage to the ceiling joists located above these fixtures. He testified that natural gas is not subject to spontaneous combustion but must be ignited. Ignition of natural gas is possible without an explosion, given the proper volume of air and gas. In response to a lengthy hypothetical question, Maatman offered his opinion that the fire originated in the southeast corner of the basement, within two to three feet of the ceiling, and burned upward. This opinion was based upon the physical evidence of fire damage which was concentrated in one corner of the basement and consisted of the charring and blackening of the bottom side of the ceiling joists and floor board in this area. Due to this physical evidence, he said it was also impossible that the fire could have started in the living room and traveled downward. In such an event the floor joists would have been consumed. In this case the joists were intact and charred only on the bottom. In conclusion, Maatman testified that fuel for the fire could not have come from any leak in that portion of the gas fuel line owned by the Summers because there was no trail of fire damage back to this area and there was no heavy charring in the area immediately above this fuel line.

The two employees who installed the additional gas meter, Richard Reichert and James Walters, testified for the defendant corporation. Both said they arrived at around 1:00 p. m. and left an hour later. During the time they were in the basement, they both used wrenches in turning off and later turning on the gas valve located on the fuel line belonging to the defendant corporation. Reichert twice used a wrench in working on the plaintiffs’ gas fuel line; first, when breaking the fitting which held the old meter bar and then later when tightening the new meter bar thereby solidifying the union of the two meters to the regulator. After the meters were installed, they were connected with the fuel line belonging to the Summers which began at the meter. The men then tested their work by applying a sponge, containing soap and water, to all the fittings or connections which they had just completed. No gas bubbles appeared indicating no gas leaks in the fuel line. Reichert could not remember if he smoked on that day. He also did not recall the specific location of the gas meters in the basement. Walters testified that he never smoked and that the regulator was working properly. Everything seemed to be proper when they left.

The remaining witnesses for the defendant corporation were Richard Yost, Edward Houwing, and Robert Schnare. Yost was a fitter on the day of the fire and was at the Summers’ home from 4:15 p. m. to 7:30 p. m. He turned off the gas valve in the basement at approximately 4:45 p. m. and noticed that the meters were still in place although burned and blackened from the fire. Yost removed the meters and the regulator from the southeast corner of the basement, took them back to the office in his truck, but did not know what later happened to them. He also capped the gas lines in the basement and put an air pressure test on the lines owned by the Summers. This test indicated that the plaintiffs’ gas lines were not leaking.

Houwing was a crew leader, maintenance department, for the defendant corporation on the day of the fire. He arrived at 5:00 p. m. and conducted bar hole tests outside the Summers’ home in the area of the gas main and the gas service lines running underground from the main to the plaintiffs’ basement. All of this piping was owned by the defendant corporation. A bar hole test consists of making borings in the ground to an approximate depth of three feet and by the use of a hose, bulb and hollow rod removing a sample to see if any gas is thereby taken from the ground. Houwing testified that his tests indicated there was no gas in the ground in the area where he made his borings. He also performed an air test on the gas service lines' owned by the defendant corporation which lead from the gas main to the Summers’ basement. Since the gauge on the testing device went down from the 100 lb. per square inch pressure, this indicated an air leak in this section of piping. He could not determine its location, however.

Robert Schnare stated that he observed other employees of the defendant corporation conducting bar hole tests, the results of which indicated there was no gas in the ground. He did not know what became of the two meters removed from the plaintiffs’ basement and did not know if the defendant corporation kept records showing the results of its later physical examination of these meters. He never saw such a record.

Initially, the defendant corporation contends that the trial court erred in allowing this case to go to the jury on a res ipsa loquitur theory in that the plaintiffs failed to prove the instrumentality which caused the property damage. It is urged that the doctrine of res ipsa loquitur was used not to properly support an inference of negligence once the known instrumentality producing injury or damage is known, but was improperly used to infer the instrumentality which caused the property damage thereby misleading the jury. It is contended that the doctrine was erroneously employed to infer the fundamental or foundation fact of causation as the plaintiffs did not independently prove it.

A mystery in this case is the source of the fire’s ignition and who was responsible for it. Both parties to the litigation recognize that gas leaking in or into the basement and existing prior to ignition due to the gas company’s negligence would be a concurrent cause of the resulting property damage. The defendant corporation contends, however, that the res ipsa loquitur doctrine was erroneously used to supply an inference that the concurrent cause of the fire was a gas leak in property owned and maintained by it although this was not known as a foundation fact. It is urged that because the plaintiffs failed to prove causation, the res ipsa loquitur inference of negligence was inapplicable.

Such an argument tends to overlook the persuasiveness of the evidence presented by the plaintiffs and the rule that res ipsa loquitur is but one aspect of circumstantial evidence. Erckman v. Northern Illinois Gas Co., 61 Ill App2d 137, 210 NE2d 42 (1965); May v. Columbian Rope Co., 40 Ill App2d 264, 189 NE2d 394 (1963). The nature of this case required the plaintiffs to rely upon circumstantial evidence. They had no direct evidence of what started or fed the fire which caused the ultimate property damage. We are of the opinion that they presented sufficient facts in support of their complaint to create a rebuttable presumption of negligence against the defendant corporation and that the trial court did not err in submitting the case to the jury on this theory. The evidence presented by the plaintiffs showed: (1) two employees of the defendant corporation had worked in the basement on the day of the fire and left approximately two hours before the fire was seen; (2) these men were installing an additional gas meter in the southeast corner of the basement and were loosening and tightening gas line connections throughout the basement; (3) they were the only people shown to be in the basement that day; (4) the fire was limited to the southeast comer of the house and, according to the opinion of an expert witness, began in the southeast comer of the basement; (5) Mrs. Davis testified that she had been down in the basement on the day prior to the fire and detected no odor of gas there; (6) other members of the Summers family testified they smelled no odor of gas in the time they lived in the house prior to the fire; (7) Deborah Summers smelled gas after stating she smelled smoke; (8) after seeing that Deborah left the house, Mrs. Summers went down to the basement and looking in, saw a fire in the southeast corner; (9) the flames seemed to begin at the gas meters with the fire looking as if it was coming out of the meters; (10) there was no readily combustible material located in the southeast corner of the basement. Although there was no explosion, an expert witness testified that ignition of natural gas would be possible without an explosion given the proper volume of air and gas. His testimony was not disputed nor refuted. From a totality of these circumstances, we are of the opinion that the plaintiffs, by circumstantial evidence, presented the issue of causation to the jury. The evidence, if believed, amply supported a reasonable inference that the instrumentality causing the property damage was defective gas transmission pipes and gas meters owned and maintained by the defendant corporation and located in the southeast corner of the basement. This inference of general negligence did not vanish when the defendant corporation presented its contrary evidence but rather all of the evidence remained to be weighed by the jury. Metz v. Central Illinois Elec. and Gas Co., 32 Ill2d 446, 449, 207 NE2d 305, 307 (1965).

It is also urged that res ipsa loquitur does not apply to this case because a fire is the kind of accident that could occur without negligence. This argument overlooks the fact that the plaintiffs did not solely rely upon the occurrence of the fire to establish their cause of action but rather offered many additional evidentiary facts in presenting their prima facie case. The totality of these facts, if believed, supported a reasonable inference of negligence as alleged in the complaint. We find that the trial court did not err in submitting this case to the jury on a res ipsa loquitur theory.

The defendant corporation contends that the trial court erred in giving, over its objection, three jury instructions tendered by the plaintiffs. The first instruction complained of had to do with res ipsa loquitur as applied to the facts of this case and included the following wording: “That the damage was received from a fire originating in the area of the basement where defendant’s gas service system equipment and associated piping was located which was under the defendant’s control.” The defendant corporation urges that the use of such wording is reversible error because it does not contain the name of the instrumentality causing the injury and because it directed a verdict for the plaintiffs if the jury found that the fire originated in the southeast corner of the basement without any mention of a preexisting gas leak. We are not persuaded by this argument in that the next portion of the instruction complained of informed the jury that they were to be concerned with the defendant corporation’s conduct as to its gas pipes and equipment and another instruction in the series given stated: “If you find the plaintiffs were not guilty of any contributory negligence, and you find that gas was present on plaintiffs’ premises because of defendant’s negligence as charged, although the immediate cause of the fire was ignition, the defendant is liable for damages from the fire.” The instructions taken as a series did not direct a verdict for the plaintiffs but accurately informed the jury of the law pertaining to this case.

The defendant corporation also urges that two other jury instructions were prejudicial and confusing because they were based upon specific acts of negligence although count II of the complaint, alleging specific negligent acts, had been stricken by the court earlier in the trial. The only alleged mention of specific acts of negligence in these two instructions is “that the defendant acted, or failed to act in one of the ways claimed by the plaintiffs” and “that gas was present on plaintiffs’ premises because of defendant’s negligence as charged.” Within the facts of this case, we find no error in the use of such wording. The wording in the latter instruction is not error because a res ipsa loquitur complaint, like a specific negligence complaint, charges negligence. The wording in the former instruction is likewise not error because the entire portion of the instruction reads: “Second, that the defendant acted, or failed to act in one of the ways claimed by the plaintiffs as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent.” (Emphasis supplied.) No error occurred in the giving of these instructions.

Finally, the defendant corporation contends that there was insufficient evidence to establish its liability. It urges that because the evidence showed there was no gas leak prior to the fire, it was entitled to a directed verdict at the close of all the evidence. We do not agree with this contention. The circumstantial evidence presented by the plaintiffs, if believed by the jury, was sufficient to reasonably support its verdict. The defendant corporation presented extensive evidence in an attempt to show that it was free from negligence with regard to the gas piping and that the property damage was caused by smoking in the rooms on the first floor above the basement or by the shelving in the basement catching on fire or by a leak in the Summers’ gas fuel line or by a defect in the fixtures installed by Mr. Summers in his basement. This conflict in the evidence was for the jury to resolve based upon its assessment of the credibility of the witnesses and the weight to be given their testimony. Within the facts of this case, we cannot say that all of the evidence, when viewed in its aspect most favorable to the plaintiffs, so overwhelmingly favored the defendant corporation that no contrary verdict based on that evidence could ever stand. Pedrick v. Peoria & Eastern R. Co., 37 Ill2d 494, 510, 229 NE2d 504, 513 (1967).

The judgment is affirmed.

Judgment affirmed.

BURKE and McCORMICK, JJ., concur.